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NORTH WEST HIGH COURT, MAFIKENG

CASE NO. 2043/2011

In the matter between:

NGAKA MODIRI MOLEMA DISTRICT MUNICIPALITY .............................APPLICANT

and

JACOBUS MULLER GELDENHUYS ...................................................1^ST RESPONDENT

CATHARINA ANNA JOHANNA GELDENHUYS ............................2^ND RESPONDENT

JACOBUS MULLER GELDENHUYS N.O ..............................................3^RD RESPONDENT

(In his capacity as trustee of the S J Geldenhuys

Bestorwe Boedel Trust)

CATHARINA ANNA JOHANNA SCOTT N.O .....................................4^TH RESPONDENT

(In her capacity as trustee of the S J Geldenhuys

Bestorwe Boedel Trust)

GIDEON PETRUS DU PREEZE N.O ........................................................5^TH RESPONDENT

(In his capacity as trustee of the S J Geldenhuys

Bestorwe Boedel Trust)

CORNELIUS JOHANNES DU RAND N.O ........................................6^TH RESPONDENT

(In his capacity as trustee of the Kootjie

Geldenhuys Trust)

JACOBUS MULLER GELDENHUYS N.O ...........................................7^TH RESPONDENT

(In his capacity as trustee of the Kootjie

Geldenhuys Trust)

GIDEON PETRUS DU PREEZ N.O ..........................................................8^TH RESPONDENT

(In his capacity as trustee of the Kootjie

Geldenhuys Trust)

CATHARINA ANNA JOHANNA SCOTT N.O ......................................9^TH RESPONDENT

(In her capacity as trustee of the Kootjie

Geldenhuys Trust)

CATHARINA ANNA JOHANNA SCOTT N.O ..................................10^TH RESPONDENT

(In her capacity as trustee of the Ounooi

Geldenhuys Trust)

GIDEON PETRUS DU PREEZ N.O .......................................................11^TH RESPONDENT

(In his capacity as trustee of the Ounooi

Geldenhuys Trust)

SANKO BOERDERY (PTY) LIMITED ................................................12^TH RESPONDENT

____________________________________________________________________________

JUDGMENT

____________________________________________________________________________

GUTTA J.

A. INTRODUCTION

[1] This is an application in terms of Rule 6(12)(c) of the Uniform Rules of Court (“the Rules”) for reconsideration of the order granted by this Court on 06 December 2011.

[2] On 06 December 2011, this Court granted the following urgent order:

“1. THAT: First and Second Respondent be and are hereby ordered to restore Applicant’s access to and possession of the servitude areas described in the notarial deed of servitude K005173/09S and notarial deed of servitude K005172/09S with immediate effect.

2. THAT: First and Second Respondent be and are hereby ordered to unlock all chains and locks on the gate leading to the servitude areas.

3. THAT: First and second Respondent be and are hereby ordered to pay the costs of this application on an attorney and client scale.”

[3] Initially, the first and second respondents, in the application for reconsideration sought an order that the application be dismissed with costs alternatively that the cost order be rescinded.

[4] However, on the day of the hearing, counsel for the first and second respondents, Mr Hitge, submitted that because of the time lapse and the fact that prayers 1 and 2 of the order granted by Leeuw JP was carried out on 07 December 2011, they are only seeking an order that prayer 3, namely, the cost order, be rescinded or set aside. He submitted that this will require a consideration of the merits.

B. FACTS

[5] The applicant alleged that the first and second respondents unlawfully deprived the applicant of peaceful and undisturbed access to a servitude area by locking the access gate to the servitude area.

[6] The first respondent avers that on 31 November 2011, one Danilla Potgieter (previously Coetzee) (“Ms Potgieter”), his life partner, instructed an employee of hers to lock the main gate giving access to the remainder of the farm Kafferskraal 66JO, North West Province. He alleged that she was the responsible person in charge of the leasing of the grazing on the properties of Kootjie Geldenhuys Trust (“the Kootjie Trust”) and acted in her personal capacity.

C. RECONSIDERATION

[7] Rule 6(12)(c) provides:

“A person against whom an order was granted in his absence in an urgent application may by notice set down the matter for reconsideration of the order.”

[8] What Rule 6(12)(c) envisages is a notice and not an application, as Joffe J in Rhino Hotel & Resort (Pty) Ltd v Forbes & Others 2000 (1) SA 1180 (W) at 1182B–E stated:

“In terms of Rule 6(12)(c) of the Uniform Rules of Court, a party against whom an order was granted in his absence in an urgent application may, by notice, set the matter down for reconsideration of the order.”

[9] A Court seized with a reconsideration in terms of Rule 6(12)(c) exercises a wide discretion. See Reclamation Group (Pty) Ltd v Smit & Others 2004 (1) SA 215 (SE) at 218E–F.

[10] Reconsideration may involve a deletion of the order, either in whole or in part or the engraftment of additions thereto. See Oosthuizen v Mijs 2009 (6) SA 266 (W).

[11] Farber AJ in ISDN Solutions (Pty) Ltd v CSDN Solutions CC & Others 1996 (4) SA 484 (W) at 487A/B–D, succinctly dealt with the factors to be considered when exercising a discretion in terms of Rule 6(12)(c). He stated:

“The framers of Rule 6(12)(c) have not sought to delineate the factors which might legitimately be taken into reckoning in determining whether any particular order falls to be reconsidered. What is plain is that a wide discretion is intended. Factors relating to the reasons for the absence of the aggrieved party, the nature of the order granted and the period during which it has remained operative will invariably fall to be considered in determining whether a discretion should be exercised in favour of the aggrieved party. So, too, will questions relating to whether an imbalance, oppression or injustice has resulted and, if so, the nature and extent thereof, and whether redress can be attained by virtue of the existence of other or alternative remedies. The convenience of the protagonists must inevitably enter the equation. These factors are by no means exhaustive. Each case will turn on its facts and the peculiarities inherent therein.”

[12] The applicant challenged the failure of the respondents’ attorney to accept service of the papers and to attend Court on 06 December 2011 as well as the fact that the first and second respondents’ delayed in bringing the matter before Court for reconsideration.

D. SERVICE

[13] Rule 6(12)(c) is clearly inspired by the fact that quite often urgent applications are brought without prior notification of the respondent, due to an alleged fear that the respondent may thwart the order prayed for before it could be executed or even issued. Prior notice to the respondent may also be impossible due to the sheer urgency of the matter. See Sheriff Pretoria North-East v Flink & Another 2004 JDR 0458 (T) at page 9.

[14] It is common cause that:

14.1. the applicant attempted to serve the papers on the respondents’ attorney of record, Cornelius Johannes Du Rand, on 06 December 2011, who is also cited as the sixth respondent (in his capacity as trustee of the Kootjie Trust);

14.2. Mr Du Rand informed the applicant’s attorney that he did not have instructions to receive documentation and that service should be done in accordance with the Rules.

[15] Counsel for the applicant, Mr Swart, submitted that this application was incidental to the matter under case number 673/2011, wherein the respondents applied for an order that the pumping of water be stopped. He submitted that the respondents were not prepared to wait for the judgment in that matter and took the law into their own hands by stopping the water and locking the gates. He submitted that the cause of action under case number 673/2011 and in casu are the same as it concerns the water and nothing else, hence the attorney representing the respondents under case number 673/2011 should have accepted service of the papers on them in casu.

[16] In support of the above contention, he relied on Rule 6(11) of the Uniform Rules of Court which provides as follows:

“(11) Notwithstanding the aforesaid subrules, interlocutory and other applications incidental to pending proceedings may be brought on notice supported by such affidavits as the case may require and set down at a time assigned by the registrar or as decided by a judge.”

[17] Mr Hitge submitted that the urgent application constituted a ‘new causal action’ and is not incidental to the proceedings under case number 673/2011 and that Mr Du Rand, the respondents’ attorney, had the right to refuse service of the application.

[18] An application is incidental to pending proceedings if it is subordinate or accessory to it while at the same time being distinct from the main proceedings. See Antares (Pty) Ltd v Hammond 1977 (4) SA 29 at 30D.

[19] Interlocutory and other applications incidental to pending proceedings need not be served by the Sheriff. Service may be effected upon the attorney of record of the respondent by the party initiating the proceedings. See Rule 4(1)(aA) of the Rules.

[20] It is trite that in spoliation applications, the Court is only concerned about whether the party was in peaceful and undisturbed possession of the property and was unlawfully deprived of possession. The cause of the possession is irrelevant, so too is the issue of who has a stronger right to claim to possession. See Yeko v Qana 1973 (4) SA 735 (A).

[21] In casu, the cause of action is spoliation, which in my view is neither interlocutory nor incidental to proceedings under case number 673/2011, although they may be related. That is why the applicant proceeded by way of notice of motion and not notice.

[22] The applicant was wrong to assume that because the attorney had represented the respondent under case number 673/2011, that he would continue to represent him.

[23] Accordingly, Mr Du Rand, who at the time of service did not have instructions to accept the service of the papers, was within his right to refuse service. Furthermore, it must be stressed that the applicant sought to serve the papers on Mr Du Rand on the same day that the application was before Court, namely, 06 December 2011.

[24] The question whether the first and second respondents, through their attorney, had knowledge and whether this is relevant, I need not decide as it is common cause that the two jurisdictional facts that confer a wide discretion upon me in terms of Rule 6(12)(c) are met, namely:

24.1. the order was granted in the absence of the first and second respondents;

24.2. the order was granted by way of urgent proceedings as intended in Rule 6(12).

[25] Accordingly, I am of the view that the first and second respondents’ absence from Court on 06 December 2011 has been satisfactorily explained.

[26] I now turn to consider the nature of the relief sought by the applicant and the first and second respondents’ delay in bringing the application.

E. NATURE OF RELIEF AND DELAY

[27] Mr Hitge submitted that the applicant sought final relief. He referred the court to the case of Oosthuizen v Mijs supra and submitted that the facts are similar to the matter in casu as final relief was granted on an urgent basis, and only a reconsideration of the cost order was sought.

[28] Mr Hitge submitted that Rule 6(12)(c) does not provide for time limits or to show good cause. Furthermore, there is no prejudice in the fact that the application is heard five months later, as the first and second respondents only seek a rescission of the costs order.

[29] The first and second respondents, correctly so in my view, abandoned the relief that the application be dismissed, not only because of the time lapse and the fact that the locks on the gate had been removed, but because the first and second respondents conceded that there was spoliation. It is however unfortunate that this concession by the respondents to only challenge the cost order was not made by the first and second respondents from the outset.

[30] The fact that the applicant sought a final order and that the first and second respondents are only challenging the cost order granted against them leads me to condone the respondents’ delay and to reconsider the order granted in terms of Rule 6(12)(c).

F. CONDONATION

[31] The first and second respondents sought condonation for the late filing of the opposing papers. This point was not challenged by the applicant at the hearing and the Court accepts the explanation proffered by the first respondent in paragraphs 7.1 – 7.5 of his opposing affidavit and condonation is accordingly granted.

G. MERITS

[32] The onus on the applicant was to prove that the first and second respondents unlawfully, that is without the applicant’s consent or without due legal process, locked the access gate and in so doing deprived the applicant of access to the servitude.

[33] It is common cause that:

33.1. the applicant had been spoliated and that the person who spoliated acted without the applicant’s consent and without due legal process;

33.2. the applicant’s possession of and access to the property was for the purpose of the abstraction of water, and with the spoliation, the applicant was denied access to the property and thereby denied the right to abstract water.

[34] Hence, the only issue left for consideration is whether the first and second respondents spoliated and whether the punitive cost order was justified in the circumstances.

First respondent

[35] Mr Hitge submitted that:

35.1. the order was granted against the wrong parties, namely, the first and second respondents in their personal capacity, as the spoliator was Ms Potgieter in so far as she gave instructions to lock the gate;

35.2. the first respondent was not in a position to intervene. He said, “I requested her to open the gate but she refused”;

35.3. if one accepts that Ms Potgieter and the first respondent were business partners, then it is not correct to say that one partner, through his partner, attracts liability for a partnership. At best, it is possible in certain delictual cases, that is if the partner was acting in the ordinary course of business of the partnership, that is vicarious liability;

35.4. the rights of the parties do not enter the fray, it is not a delictual case but pure spoliation.

[36] Mr Swart submitted that:

36.1. Ms Potgieter is not only the first respondent’s life partner, but his common law partner. The first respondent had knowledge of the locked gates in his personal capacity and in his capacity as trustee of Kootjie Trust. He consented to the locking of the gates, thereby making himself responsible;

36.2. the true identity of who was responsible for the locking of the gates is clear, namely, the first respondent, through his partner, Ms Potgieter.

[37] Mr Swart referred the Court to the unreported decision of the Supreme Court of Appeal of M A Paixao; M O S Paixao v RAF, case number 640/2011, delivered on 26 September 2012 at [29], and submitted that the first respondent and Ms Potgieter were life partners and that there are sufficient facts to infer that there is an agreement between them that creates a binding legal obligation between them.

[38] Mr Swart submitted that the first respondent cannot escape liability for his life partner’s actions as it is trite that a partnership cannot escape liability towards third parties for the actions of its partner. He submitted further that the first respondent, being aware of pending litigation at the time relating to the very same abstraction of water, had a duty to prevent his partner from spoliating and by his conduct in not preventing his partner from taking the law into his own hands, for and on behalf of him, clearly tacitly agreed with her and thus aligned himself with the spoliation.

[39] The Supreme Court of Appeal decision of Paixao v Road Accident Fund supra concerned the issue whether the nature of the relationship between the parties gave rise to a reciprocal duty of support which must be protected by the law and whether the agreement between the parties was enforceable against third parties.

[40] The Supreme Court of Appeal in Paixao v Road Accident Fund supra at paragraph 29 held that:

“Proving the existence of a life partnership entails more than showing that the parties co-habited and jointly contributed to the upkeep of the common home. It entails, in my view, demonstrating that the partnership was akin to and had similar characteristics – particularly a reciprocal duty of support – to a marriage. Its existence would have to be proved by credible evidence of a conjugal relationship in which the parties supported and maintained each other. The implied inference to be drawn from these proven facts must be that the parties, in the absence of an express agreement, agreed tacitly that their co-habitation included assuming reciprocal commitments – i.e. a duty to support – to each other.”

[41] On the evidence before me, I cannot make a finding on whether the first respondent and Ms Potgieter concluded a life partnership resulting in binding legal obligations between them and whether Ms Potgieter was acting in the course of the business of the partnership when she spoliated. In any event, it is not necessary for me to decide those issues in the light of my findings hereinbelow.

[42] A spoliator who has ordered or ratified an act of spoliation is also deemed a spoliator. See Administrator, Cape & Another v Ntshwaqela & Others 1990 (1) SA 705 (A) at 718E–719A.

[43] On appeal, in the case of Administrator, Cape & Another v Ntshwaqela & Others supra, where the applicants, a group of squatters were removed from land belonging to a local authority and the Court a quo granted a spoliation order against the owners, Cape Provincial Administration (“CPA”) and South African Police (“SAP”) to restore possession of the sites which they had been clear. The CPA and the SAP argued that:

“the mandament should not have been granted against them in that (a) neither of them had participated in the demolition of any squatter dwellings – their respective roles had merely been supportive; and (b) since neither of them had domininium or a right of control over the sites from which the squatters had been removed, they had no means, legal or otherwise, of giving effect to the mandament.”

[44] The Court at page 718(a–c) held that:

“There can be no doubt that the CPA and the SAP were co-spoliators with the respective owners. The operation of 2 December 1987 was a combined operation in the execution of a single cohesive plan to which all of the respondents in the Court a quo were parties.

The role of the owners was, it is true, largely a passive one, but it was mainly for their benefit that the operation was carried out. They encouraged it and they permitted the police to go onto the properties for the purpose of executing it.”

[45] In the unreported judgment of Mqoboli v Qwesha 2008 JDR 0849 (Tk) at page 4 paragraph 7, the second respondent removed the motor vehicle from the applicant’s premises and handed it over to the first respondent. The Court held that the instigating and benefiting party was also a spoliator for purposes of the application and that the mandament could be granted against it.

[46] The Court in the Mqoboli v Qwesha case supra quoted from Joubert, The Law of South Africa (LAW SA) vol. 2, para 271, namely:

“It is stated that the courts have on occasion held that the mandament van spolie can be instituted against a mala fide third party. The writer qualifies this view by adding that the mandament can only be instituted if the third party has so actually assisted in the act of spoliation that he himself has become a party to the spoliation. A co-spoliator who has ordered or ratified an act of spoliation is also deemed a spoliator (LAW SA paragraph 268).”

[47] Ms Potgieter, whom the first respondent referred to as his life partner, was responsible for causing the access gate to be locked. She is not a party to this application. Although the first respondent alleged that she acted in her personal capacity, he also alleges that she informed him of the fact that the gate was locked and that she would not look on as the applicant continues to infringe on the right of Kootjie Geldenhuys Trust of which the first respondent is the income and capital beneficiary.

[48] Ms Potgieter was employed by the Kootjie Trust and the access gate was on the farm Kafferskraal 66JO, which is owned by the Kootjie Trust. The first respondent is a trustee of the Kootjie Trust. Both Ms Potgieter and the first respondent resided on the farm Kafferskraal 66JO.

[49] The applicant in paragraph 35 of the founding affidavit, stated that:

“On Monday 5 December 2011 at around 09h00 Mr Jeffrey Lesego Marafe of Botshelo Water went to the gate and met First Respondent on the way. First Respondent informed Mr Marafe that he had locked the gate as I did not want Botshelo Water to go to the pumps, which is not true.”

[50] A confirmatory affidavit from Mr Jeffrey Lesego Marafe (“Mr Marafe”) was attached to the affidavit.

[51] The first respondent in his opposing affidavit denied the contents. He also avers that he never met the deponent on 05 December 2011 and that he did not inform Mr Marafe that he locked the gates as he did not do it.

[52] The first respondent in paragraph 16.2 of his opposing affidavit stated the following:

“The court will note that the current respondents before court also failed to comply with relevant legislation, the conditions of the registered servitude and the conditions of the water licence which was granted. The current respondents before court was therefore well within their right to stop the abstraction of water and to deny access to the applicant and/or their agents to the properties in question. Although the respondents have such right the current respondents before court did not stop the abstraction of water and did not lock any gate giving access to the relevant properties in question.”

(Own emphasis)

[53] Even though the first respondent denies that he locked the gates, he believed that they had the right to lock the gates to their property.

[54] Although there is no evidence to suggest that the first respondent instructed Ms Potgieter to lock the gates, it is clear that Ms Potgieter did so to protect the first respondent’s interests. Furthermore, even after Ms Potgieter informed the first respondent of her actions, he, by his conduct, accepted that the gates were locked and did nothing to unlock the gates. The gates remained locked for a period of four days until the Court granted the order on 06 December 2011.

[55] I am not persuaded by the first respondent’s submission that he was not in a position to interfere. As stated supra, the first respondent resided on the farm Kafferskraal 66JO and had control over the gate. The first respondent not only ratified Ms Potgieter’s conduct but also benefitted by her action as the applicant was prohibited from entering the servitude and the complaint, namely, the appearance of sinkholes on the property allegedly caused by the pumping of water was halted.

[56] By ratifying Mr Potgieter’s conduct, the residents of Wards 12, 13, and 18 of the Ramotshere Moiloa Local Municipality (twelve thousand households) were deprived access to water, which is a basic right in terms of our Constitution. Accordingly, I am of the view that the first respondent is a co-spoliator and the order granted against him does not fall to be reconsidered and that the cost order was in the circumstances justified.

Second respondent

[57] Mr Hitge submitted that:

57.1. Although the second respondent gave instructions to switch off the pump, her involvement for purposes of this application is irrelevant as the only relief sought by the applicant was for opening the access gate and not to switch the water pumps on;

57.2. The second respondent was cited in her personal capacity and in her capacity as a trustee and there is no evidence that her action was mandated by the trust;

57.3. the applicant labored under the misapprehension that the second respondent is the spouse of the first respondent and that she resides with the second respondent at Portion 2 of the farm Kafferskraal 66JO, North West Province, when the second respondent is the mother of the first respondent and resides at the Uitvlucht farm.

[58] It is apparent from the first respondent’s opposing affidavit that the second respondent was not at the farmhouse on 03 December 2011. The first respondent alleged that the second respondent, who is his mother, was sick in bed at her home, situated on the farm Uitvlucht. The applicant did not file any replying affidavit, hence the second respondent’s version remains unchallenged.

[59] It appears to be a case of mistaken identity, that Ms Potgieter was mistaken for the second respondent. There is no factual evidence that the second respondent was in any way responsible for locking the access gates.

[60] Whether the water pumps were turned off by employees of the second respondent on her instructions is irrelevant as the spoliation application related solely to the locking of the access gate to the servitude.

[61] In the circumstances, any cost order against the second respondent was not justified and falls to be reconsidered.

H. ORDER

[62] Accordingly, I make the following order:

a) The orders granted against the second respondent in prayers 1, 2 and 3 on 06 December 2011 are hereby rescinded and set aside.

b) The order granted against the first respondent in prayers 1, 2 and 3 on 06 December 2011 stands and is enforceable.

c) The first respondent be and is hereby ordered to pay the applicant’s costs of this application.

d) The applicant be and is hereby ordered to pay the second respondent’s costs of this application.

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N. GUTTA

JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 27 SEPTEMBER 2012

DATE OF JUDGMENT : 05 NOVEMBER 2012

COUNSEL FOR APPLICANT : ADV A.J. SWART

COUNSEL FOR 1^ST & 2^ND RESPONDENTS : ADV M.G. HITGE

ATTORNEYS FOR APPLICANT : MABALANE MOLEFE INC.

ATTORNEYS FOR 1^ST & 2^ND RESPONDENTS : HERMAN SCHOLTZ ATTORNEYS

(Instructed by CORNELIUS DU RAND ATTORNEYS)

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