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IN THE HIGH COURT OF SOUTH AFRICA GAUTENG

LOCAL DIVISION, JOHANNESBURG

Case No:  2019/40696

In the matter between:

LA FAMILIA STREET CULTURE (PTY) LTD                                                    APPLICANT

And

AMBER BRAND INVESTMENTS (PTY) LTD                                               RESPONDENT

JUDGMENT

 

Molahlehi J 

Introduction

[1] This is an urgent application in terms of which the Applicant seeks a mandament van spolie in circumstances where the respondent has dispossessed it of the leased premises. The relevant parts of the notice of motion for this judgment read as follows:

"2 The respondent is directed to forthwith restore the Applicant's undisturbed possession of the premises situated at stained 138, Ground Floor, Jan Smuts Avenue, Parkwood Johannesburg.

3 The respondent is directed to forthwith restore the Applicant's undisturbed possession to the water and electricity utilities on the premises.

4 The respondent is directed to forthwith restore the Applicant's undisturbed possession to all the Applicant's trading stock, furniture and equipment which has been locked in the premises by the respondent.

5 In the event that the respondent fails to restore the Applicant's undisturbed possession, as referred to in paragraph 2 to 4 above, within 24 hours of the court order, the sheriff of the Honourabl Court is authorized to do whatsoever as is necessary to restore the Applicant's undisturbed possession of the premises, the Applicant's trading stock, furniture and equipment and to restore the water and electricity utilities on the premises.”

[2] The Applicant alleges in the founding affidavit that it was dispossessed of the property while in peaceful and undisturbed possession of the leased property. It further asserts that it was unlawfully deprived of the leased property by the respondent. It never consented to the dispossession of the premises, nor did the respondent obtain a court order for that purpose.

[3] It is common cause that the relationship between the parties is that of a landlord and tenant. The Applicant leased the property in question to conduct its business in the luxurious sneakers and accessories market, as well as providing barber services. The Applicant has throughout the lease developed a brand known for its luxurious trading in sneakers as well as providing barber services around Johannesburg.

[4] During January 2019, the Applicant requested additional space from the respondent to open a food outlet. It was for this reason that a further lease agreement was concluded between the parties on 18 April 2019.

[5] The inclusion of the food outlet necessitated the renovation of the additional space available for that purpose.  A conflict developed between the parties relating to the construction of the food outlet space.  The plan to establish a food outlet did not for that reason materialize.

[6] On 31 October 2019, the Applicant received a letter from the respondent cancelling the second lease agreement.

[7] In terms of the letter, the Applicant was to vacate the premises on 1 November 2019. The letter indicated that failure to leave the premises the very following day would result in the institution of eviction proceedings.

[8] According to the Applicant the unlawful dispossession occurred on 11 November 2019 when the Applicant arrived at the premises, only to discover that the locks had been changed and could not access the property.

[9] Applicant contended that the responsible person at the respondent's business to arrange with him to remove his property. The person refused to speak to him.

[10] The Applicant has been in occupation of the premises since November 2016 after the conclusion of the lease agreement. The furniture and equipment on the premises belong to the Applicant. It is common cause or at least undisputed that the furniture and equipment in the premises belong to the Applicant.

The grounds of urgency.

[11] It is trite that mandamenet van spolies is as a general principle deserve to be dealt with on an urgent basis. The respondent contended that the claim was not urgent because the Applicant was in arrears for non-payment of rental since June 2019.

[12] In my view, the period from the time the Applicant became aware of its dispossession is not a delay that is so significant that the Applicant can be unsuited for that reason. The Applicant has given a satisfactory explanation as to what happened between the two periods. Accordingly, I find that this matter deserves to be treated as one of urgency. The Applicant is faced with the risk of its stock being damaged due to water leakage in the building. In fact, on the facts and circumstances of this case, it can be said that the Applicant did not delay in instituting these proceedings.

[13] Respondent has as stated earlier in this judgment, oppose the application mainly on the ground that it is not urgent and that if urgency exists it was self-created. I have already dealt with the issue of urgency earlier in this judgment. I wish, however, to add and say that the fact that the Applicant did not react to the letter of demand relating to the arrear rental is irrelevant concerning the issue of dispossession.  The relevant point in that respect is the time at which it is alleged that spoliation occurred.

[14] In addition to opposing the Applicant's application, the respondent filed an urgent counterclaim praying for the attachment of the Applicant's property at the leased premises and payment of security by the Applicant for R 250,000.00. The counterclaim is based on the alleged breach of the lease agreement. It is alleged that the Applicant failed to pay the rental despite the demand to do so by the respondent.

[15] The Applicant, according to the respondent, was notified of the breach on 29 July 2019. The second notice of breach of the agreement was issued on 27 September 2009.

[16] There is no explanation in the respondent's papers why it waited for such a long period to institute the claim. It instituted its claim only as the Applicant complained about the spoliation. This in my view is nothing but self-created urgency.

[17] The issue for determination in this matter has to do with whether the matter deserve to be entertained as being urgent. Secondly, the issue is whether the relief of mandament van spolie is available for the Applicant.

Analysis

[18] It is trite that spoliation is the wrongful deprivation of another’s right of possession of a property whether it be lawfully or otherwise.  The relief available to a person who has been unlawfully deprived of possession is  mandament van spolie, or “spoliation order. This is a common-law remedy whose purpose is to promote the rule of law and avoid ‘self-help’ by those who belief that they have a right to the property and that they can take possession of it as and when they so desire.  It was described in 1906 in the case of Nino Bonino v De Lange,[1] in the following terms:

“is any illicit deprivation of another of the right of possession which he has. whether in regard to movable or immovable property or even in regard to a legal right. He does not make violence or even fraud an essential element, provided that the act is done against the consent of the person despoiled, illicitly.”

[19] The requirement for a mandament van spolie is that the applicant has to show that he or she was in a peaceful and undisturbed possession when the spoliator unlawfully deprived him of that possession.  He or she also have to show that the possession is one that deserve protection under manadament van spolie.

[20] In the present matter the respondent has not denied the allegation of dispossessing the applicant of the premises. It sought to justify its action on the basis that the applicant was in arrears in payment of the rental and that it issue notice of termination of the lease agreement. 

[21] There are two ways in the circumstances of this case through which the respondent could have obtained possession of the premises.  The first is by way of consent by the Applicant. And the second is by way of an eviction order.  The Respondent did none of these. It decide to take the law into its hands by locking the premises and thus taking possession from the Applicant in an unlawful manner.

[22] In relation to the supply of water and electricity the applicant asserted in the founding affidavit that:

“42. The building has leaking issues. I have in the past complained to the respondent about the multiple leaking issues from rain, which has led to serious damping issues-in all rooms. This damping problem makes for favourable conditions for mould to start generating on everything.

43. During this year our stock had moulded severely. On 31 May 2019, we sent an email to the respondent, explaining that our stock worth millions had been damaged due to the building issue. I attach the email hereto and mark it as annexure "FA9".

44. We suggested that the respondent install an extraction fan, which was installed.

45. However, the respondent has cut-off the electricity and water supply to the premises. Without the electricity the extractor fan does not work. We have no doubt that rain has leaked into the premises during the past couple of rainy days and that without, any ventilation has started to generate in the stock room.

46. Moreover, our insurance requires the CCTV and alarm systems to be activate before any claim could be paid. Without any electricity on the premises, none of our stock is covered.”

[23] In light of the above the two services are incidental to the possession of the premises as envisaged in Eskom Holdings Limited the Masinda,[2] where the court said that quasi possession can be protected by mandament van splie. The position that the exercise of an incorporeal right can be subjected of spoliation through the concept of quasi possession was authoritively reaffirmed in Bon Quelle(EDMS) Bpk v Municipality van Otavi.[3]  In this regard the court held that in order to establish quasi possession an applicant had to show “actual use” of the right of the right in question.

[24] I say the above recognising that the respondent asserted that the lease agreement has lapsed and notice of cancellation has already been issued.  However, even then the respondent was not in law entitled to do what it did.  Accordingly the Applicant deserves protection for is possession of the premises through mandament van spolie

 

Order

[25] In the premises the following order is made:

1. The Applicant's failure to comply with the forms of service and time periods, as stipulated in the Uniform Rules of Court, is condoned and the matter is heard as urgent in terms of Uniform Rule 6(12).

2. The respondent is directed to forthwith restore the applicant's undisturbed

3. possession of the premises situated at Stand 138, Ground Floor, 138 Jan Smuts Avenue, Parkwood, Johannesburg ("the premises")

4. The respondent is directed to forthwith restore the applicant's undisturbed possession to electricity utilities on the premises.

5. The respondent is directed to forthwith restore the applicant's undisturbed possession to all the applicant's trading stock, furniture and equipment which has been locked in the premises by the respondent.

6. In the event that the respondent fails to restore the applicant's undisturbed possession, as referred to in paragraphs 2 to 4 above, within 24 hours of the court order, the sheriff of the Honourable Court is authorised to do whatsoever as is necessary to restore the applicant's undisturbed possession of the premises, the applicant's trading stock, furniture and equipment and to restore the water and electricity utilities on the premises.

7. The respondent is to pay the costs of this application. 

 

                                                                     ____________

                                                                     E Molahlehi 

                                                                     Judge of the High Court, Johannesburg

Representation: 

For the Applicant: 

Represented by:

For the Respondents: 

Represented by: 

Heard on: 21 November 2019

Delivered on: 02 December 2019

 

[1] 1906 TS 120 at 122. See also  Yeko v Oana 1973 (4) SA 735 - A) at 1" 1906 TS 120 al 122 11 739 E-F.

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