IN THE NORTH WEST HIGH COURT MAHIKENG CASE NO.: M66/2016 In the matter between: ABRAHAM PAULUS BISSCHOFF ABRAHAM PAULUS BISSCHOFF (in his capacity as representative of the trustee of the Paul Bisschoff Trust) RIETVLUG LANDGOED (PTY) LTD DAVID EDUARD BISSCHOFF DAVID EDUARD BISSCHOFF (in his capacity as representative of the trustee of the David Bisschoff Trust) 1 st Applicant 2 nd Applicant 3 rd Applicant 4 th Applicant 5 th Applicant AND WELBEPLAN BOERDERY (PTY) LTD Respondent APPLICATION FOR LEAVE TO APPEAL KGOELE J DATE OF HEARING : 1 APRIL 2016 DATE OF JUDGMENT : 29 APRIL 2016 FOR THE APPLICANT : Adv. J.H.F. Pistor FOR THE RESPONDENT : Adv. Viljoen JUDGMENT 1
KGOELE J: [1] On the 18 February 2016 this Court ordered restoration of the applicant s possession (the respondent in this application) of the properties listed in paragraph 2 of the Notice of Motion in the main application and further awarded the costs of the main application against the respondents (the applicants in this application). The parties will be referred to herein as in the main application for the sake of convenience. The respondents now apply for leave to appeal to the Full Bench of this Court, which application is opposed by the applicant. [2] The respondents did not persist with the grounds listed in paragraphs 1(a) and (b) of their application for leave to Appeal, i.e. the non-citation of all trustees. The remaining grounds of Appeal were couched as follows:- (c) (d) (e) The Court a quo erred in finding that the correspondence attached to the Founding Affidavit as A and B respectively, constituted deprivation of the Applicant s possession of the land in question. The Court a quo erred by finding that the instruction or demand contained in the correspondence directed to the Applicant not to enter the land amounts to dispossession, alternatively erred in finding that the correspondence amounted to the degree of deprivation of possession required for a successful reliance on the mandament van spolie. The Court a quo erred in failing to take into account that a party is entitled to unilaterally cancel an agreement without the prior assistance of Court. 2
(f) (g) (h) (i) (j) (k) (l) The Court a quo erred in finding that mere correspondence constituted the required physical element of deprivation of possession. The Court a quo erred in applying the legal principles applicable to and the requisites of interdictory relief to the facts found to be established on the papers. The Court a quo erred in failing to find that physical prevention of access is required for purposes of the deprivation of possession, alternatively or further erred by finding that mere correspondence, which at the best for the applicant could constitute a threatened spoliation, constituted deprivation of possession. The Court a quo erred in finding that the correspondence in question effectively destroyed the applicant s access to the property The Court a quo erred in finding that the correspondence in question did not constitute letters of demand and that they did in fact amount to interdicts instead. The Court a quo erred in finding that the applicant exercised control over the property whilst it was common cause that the applicant merely enjoyed co-possession of the property in the sense of cultivating a portion of the land. The Court a quo erred in finding that a threat to have the rights of the parties adjudicated by this Honourable Court did amount to deprivation of possession, alternatively or further, unlawful deprivation. 3
[3] In his arguments Advocate Pistor SC summarised all of these grounds into three main categories namely:- (a) Withdrawal of consent does not affect effectual control; (b) Illicit /unlawful deprivation; (c) The matter concerns contractual obligations. [4] I pause here to mention that Advocate Pistor SC took a lot of time in making submissions in regard to what is the correct test in the application of leave to Appeal in response to what Advocate Viljoen had written in his Heads of Argument to the effect that the threshold in now higher in application of this sort since the coming into operation of Section 17 of the Superior Court Act, 2013 (The new Superior Court Act). Advocate Viljoen placed much emphasis on the case of Maredi and Maredi v MKM Attorneys & Others; an unreported judgment given in cases numbers 52777 and 52778/2011 [2016] ZAGPPHC 74 (12 February 2016). I do not intend to analyse this issue is so much details except to say that the Maredi matter is not a good authority that one can rely on because as correctly submitted by Advocate Pistor SC, the honourable Judge in that case did not quote/use the correct wording of the Act. Despite this I fully agree with Advocate Viljoen that the threshold for granting leave to Appeal has been raised in the new Superior Court Act. The following remarks which were made in the case of The Mont Chevaux Trust (IT 2012/28) and Tina Goosen and 18 Others, Case No. LCC 14R/2014 (reportable) by Judge E Bertelsman confirms our view:- It is clear that the threshold for granting leave to appeal against a judgment of a High Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another 4
court might come to a different conclusion, See Van Heerden v Cronwright & Others 1985 (2) SA 342 (T) at 343H. The use of the word would in the new statute indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against. This new standard is applied by Section 37 (4) (b) of the Restitution of Land Rights Act 22 of 1994 to this court s duty to consider the prospects of an intended appeal. [5] It is quite clear that at the heart of this application is the Court s finding that certain correspondence sent to the applicant s attorney by the attorneys of record of the respondents constituted the required unlawful deprivation of possession for purposes of relying on the mandament van spolie. This Court is therefore requested to adjudicate a regurgitation of the arguments advanced in the main application and/or a re-formulation thereof. Withdrawal of consent does not affect effective control [6] Advocate Pistor SC submitted that the letters merely constituted withdrawal of consent which has got nothing to do with possession or control of the property in question. Put differently he argued, withdrawal of consent does not affect factual control. He referred this Court to Lawsa Volume 27 (First re-issue) at paragraph 269 where it had been stated that the applicants must prove that he had factual control of the thing coupled with the intention to derive some benefit from the thing. [7] In my view, this argument in its reformulated form would not render the Appeal to have a reasonable prospect of success. I need not repeat what I said in my judgment except to re-emphasize the fact that the 5
letters did not per se withdraw consent as Advocate Pistor SC submitted. Specific consideration has to be looked at the contents thereof. The letters are not saying that applicant should vacate the premises by such and such a date, they are specific, that he must not enter, therefore they touch or affect possession and control of the property thereof as indicated in my judgment. Sight should not be lost of the fact that applicant has up to the date when he received notification that nobody including himself should not enter the said property had already planted maize in the said property which needed to be irrigated every day. Furthermore, he was still preparing the other soil for planting as well. [8] The case which Advocate Viljoen referred to during the submission in Court of Gowry Muse v Calicorn 2013 SA (1) 239 (KZN) page 243 & 244 confirms that in spoliation proceedings what is needed is only something which touches or affects or disturbs possession. The following paragraphs thereof are worth quoting:- [12] In the present application, there are two distinct aspects to consider regarding possession. The first is whether the boarding up of the east side of the premises, preventing access to and from the premises through the corner door and the sliding doors, amounts to dispossession of the premises for the purposes of spoliatory relief. In this regard it was submitted by the second respondent that, since there remains access by virtue of at least one other door to LM Grill, the boarding up did not amount to an act of spoliation. The respondents further submitted that what was enjoyed by the applicant was a right of access, and not possession, and that this is not protected by the remedy. In making this submission, the respondents sought to distinguish the case of Nienaber v Stuckey. In that case a spoliation order was refused by the court a quo where the gate, through which the appellant had previously gained access to a farm 6
occupied by him, had been closed to him. On appeal it was held that he had made out a case that the closing of the gate had deprived him of possession of the property. In attempting to distinguish Nienaber, the respondent submitted that the Appellate Division arrived at that finding only because, although there was another gate through which the appellate would have been able to access the farm in question, use of that gate required a journey of an additional 1 1 /4 miles. This submission does not hold water. Nienaber did not decide the matter on that basis. Greenberg JA held that what is needed is only something:- (W)hich touches or affects or disturbs the possession and not complete deprivation. But I do not think that this point need be pursued as it is clear that the appellant was in possession of the right of access through this gate of which he has been deprived, and the remedy is therefore available [13] The same is true of the present matter. Although the applicant accepts that there remains access to the premises by another door, LM Grill possessed the right of access to and from the premises through the corner door and, when they were used, the sliding doors. As was the case in Willowvale Estates, LM Grill was in control over the doors in question. The boarding up disturbed this manner of exercising possession of, and access to and from, the premises. As such, it is clear that the boarding up of the east side of the premises amounts to a spoliation of possession of the premises. The above supports the finding that the contents of the letters disturbed the manner in which the applicant exercised possession of, access to and from the premises. 7
Ilicit or Unlawful deprivation [9] On this argument Advocate Pistor SC started by emphasizing that the onus is on the applicant to prove the required possession and further that he was unlawfully deprived of such possession. He referred to the case of Yeko v Qana 1973 (4) SA 735 (A) page 739 in the third paragraph where this was stated as a support for this proposition. It is a pity because Advocate Pistor SC was not the Counsel that argued the matter before Court otherwise he would have realised that the first leg of the onus which the applicant had to prove in the main application, that one of the required possession, was conceded to by the previous Counsel who argued the main application. See paragraph 11 of my judgment. [10] The second leg of the onus he is relying on to was also thoroughly argued and I gave reasons for my findings in my judgment and need not repeat same except to quote the very same authority Advocate Pistor SC quoted earlier, that one of Lawsa Volume 27 as it support my finding. The following is said in the last parts of paragraph 269 referred to:- Second, the application must prove an act of spoliation, namely that he has been illicitly deprived of his possession of the thing. The original requirement that the spoliation had to be earlier by violence (vi) or by stealth (clanm) has, on the authority of the eighteenth-century German jurist, Leyser, 9 been watered down. It is trite law that violence, stealth, fraud or force is no longer necessary for an act of spoliation. 10. All that is required is unlawful spoliation, that is, disturbance of possession without the consent and against the will of the possessor. 11. A person who gains possession of a thing by trickery commits an act of spoliation, 12. Just as a 8
person who fraudulently induces a servant to hand over the property of his master. 13. Similarly, a messenger of the Court who gains possession of a thing by means of an invalid writ of execution, 14. State officials who do not act strictly within their statutory powers in evicting persons from certain premises, 15. And an official who causes squatters to surrender possession of their shacks under duress, 16. Commit acts of spoliation. No spoliation is committed where a person is lawfully deprived of his possession. 17. The respondent can justify his dispossession of the applicant by showing that the applicant has genuinely and freely consented to give up his possession. 18. Or that he was authorised by a court order or by statute to dispossess the applicant. Therefore, when a messenger of court or a deputy sheriff acting upon the authority of a writ of execution attaches a judgment debtor s assets the seizure is not unlawful. 19. Similarly, when a farmer, in terms of the pound ordinances, impounds cattle which have strayed onto this land he does not commit an act of spoliation. 20. Confiscation of identity documents 21. Or foodstuffs 22. as well as the eviction of persons from premises 23. by public officials by virtue of statutory powers vested in them are not unlawful. These powers must, however, be exercised strictly within the narrow limits laid down in the relevant statute. Statutory enactments which allow exceptional and radical changes in possessory relations without recourse to a court order are interpreted restrictively by the courts. 24. finally, the mere fact that a police officer unofficially sanctions dispossession is not sufficient to legalise an otherwise unlawful act 25. The facts in Potgieter v Du Plessis 26 are a good illustration of this principle: after a dispute had arisen as to whether a cow which was to be sold at an auction was stolen or not, the respondent, averring that the cow was his, put a stop to the sale of the cow, removed it from the auction kraal without the consent of the applicant and called in the police to investigate the matter. Later the police ordered that the cow could remain in the possession of the respondent while the matter was pending. When the applicant instituted spoliation proceedings, the respondent contended that after the police had lawfully attached the cow it had come into the lawful possession of the respondent. It was held that the fact that 9
the respondent had called in the aid of the police was not sufficient to render his dispossession of the applicant lawful. [Own Emphasis]. These example illustrated in the above quotation that I underlined strengthens the finding that I made in my judgment that the letters amount to self-help in the manner they were couched and in addition the fact that there are no reasonable prospects that the appeal would succeed on this leg either. Peculiar to the circumstances of each case, deprivation may take many forms. The dispossession occurred without applicant s consent. Such deprivation or dispossession was unlawful or elicit because respondents did not possess a Court order or did not prove that legislation or law allowed them to dispossess applicant. Unconditional prohibition to be present on land or possess it, which renders further occupation/possession illegal and/or a criminal offence does constitute in my view lawful deprivation of possession. The matter concerns contractual obligations [11] This is another argument by the respondent s Counsel which is misplaced also. Equally is the ground that he also raised in the application for leave to Appeal to the fact that the Court erred in applying the legal principles applicable to and/or requisites of interdictory relief to the facts found to be established on the papers. There are no grounds on the papers before Court to allege that the applicant applied for an interdict. The applicant s arguments in the main application were clear and nowhere did he rely on any other prima facie right but possession for the relief claimed, nor did he rely on the contract. The Court did not entertain any of them either, in fact at 10
the time of hearing the main application both Counsel were ad idem that the contract played no part in the application and the respondents Counsel then, did not rely on it. The respondents had initially raised this in their opposing papers but their Counsel did not rely on them as indicated above and in paragraph 11 of my judgment that only two issues namely, requirements (b) and (c) remained. There are no cogent reasons advanced why they should be revived at this stage of the Appeal, and cannot therefore be entertained now in view of the relief claimed by the applicant in the main application, hence this Court disregarded them. I am of the view that the Appeal by the respondents would not have reasonable prospects of success. [12] The following order is thus made:- 12.1 The application for leave to appeal to the Full Bench of this Division is dismissed with costs. A M KGOELE JUDGE OF THE HIGH COURT 11
ATTORNEYS: FOR THE APPLICANT : Van Velden-Duffey Inc C/O Van Rooyen Tlhapi & Wessels 9 Proctor Avenue MAHIKENG FOR THE RESPONDENT : Harry Pretorius Attorneys C/O Maree & Maree Attorneys 11 Agaat Avenue Riviera Park MAHIKENG 12