SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	

IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Case Number: A193/20

ZIYAAD DAVIDS	First Appellant
SHAFIECK WALTERS	Second Appellant
RASHIED NACKERDIEN	Third Appellant

and

MOHAMED NUHR HASSAM	Respondent

Coram: Ndita, J et Lekhuleni, AJ
Heard: 23 October 2020
Delivered electronically: 16 November 2020

JUDGMENT

LEKHULENI AJ

1. INTRODUCTION
[1]	This is an appeal against a final spoliation order granted by the Vredenburg Magistrates Court on 18 March 2020. On 14 January 2020 the respondent brought an ex parte application for a rule nisi calling upon the appellants to show cause on 07 February 2020, inter alia, why the appellants should not be ordered jointly to restore to the respondent possession of a wooden sliding door which the appellants removed at the Mosque quarters situated at 24 Noordhoek Street, Louwville Vredenburg where the respondent resided. The respondent also sought an order directing the appellants to re-install the wooden sliding door without delay. The interim order was granted and subsequent to that, the appellants restored possession of the sliding door to the respondent and installed it as ordered by the court. On the return date, that is, 18 March 2020, the application was heard on the merits. The appellants raised a point in limine in terms of which they contended that when they removed the sliding door from the Mosque, they were acting in their capacities as trustees of the Vredenburg Muslim Jamaat ("the employer/mosque"). Notwithstanding, when the spoliation application was launched, they were cited in their personal capacities. On that basis, they contended that the application should be dismissed.

[2]	The upshot thereof was that the magistrate dismissed the point in limine. The reasons given by the magistrate was that there was no resolution of trustees attached to the answering affidavit confirming that indeed the appellants were authorised by the Vredenburg Muslim Jamaat to remove the sliding door in question.

[3]	With regard to the merits, the magistrate found that the respondent was in peaceful and undisturbed possession and was deprived of possession unlawfully of the sliding door. The magistrate then granted the final order. It is the final order that the appellants seek to set aside in this appeal.

2.FACTUALBACKGROUND
[4]	The appellants are alleged to be the office bearers of the Vredenburg Mosque Jamaat.

[5]	The respondent is a 51 years old Imam who resides at […] Street Louwville Vredenburg. The respondent entered into an employment contract with the Vredenburg Muslim Jamaat on 02 February 2017 in terms of which he was employed as the Imam of the Vredenburg Mosque. Part of the employment agreement was that the respondent was entitled to use the living quarters attached to the Mosque which consists of two bedrooms, a bathroom, a toilet and a kitchen. At the time the application was launched, the respondent resided in these quarters.

[6]	The employment relationship between the respondent and Vredenburg Muslim Jamaat broke down irretrievably and the employer instituted disciplinary proceedings against the respondent as it alleged that the respondent abandoned his duties on 28 August 2019 and refused to return. The chairperson of the disciplinary hearing ostensibly dismissed the respondent. The respondent subsequently referred the matter to the CCMA for a further dispute resolution process. An award was granted in favour of the respondent. Subsequent to the CCMA proceedings instituted against the respondent, the appellants' attorneys sent the respondent a letter dated 30 December 2019 calling upon the respondent to vacate the Mosque quarters by no later than the 31 January 2020.

[7]	In the meantime, on 21 December 2019, the three appellants attended to the Mosque quarters in the absence of the respondent. They found the respondent's wife and advised her that they came to remove the wooden sliding door which is situated in the Mosque, separating the Masjid and the quarters of the respondent. The respondent's wife objected to the removal of the sliding door. Despite her objection, the three appellants proceeded to remove the door and its lock. The appellants informed the respondent's wife that they will soon return to install a security gate where the sliding door was situated which they wanted to have control over.

[8]	The respondent averred that at the time the three appellants removed the sliding door he was in peaceful and undisturbed possession of the Mosque quarters which included the sliding door. The respondent further contended that the conduct of the three appellants was not only unlawful but was a thwarted attempt to pressurise him and his family to vacate the Mosque quarters immediately. The appellants on the other hand averred in their answering affidavits that the respondent abandoned his duties on 28 August 2019 and refused to return to his workplace hence the Mosque started disciplinary proceedings against him.

[9]	The appellants denied that the sliding door in question formed part of the living quarters of the respondent. According to them, the sliding door is in fact situated in the women's section of the Mosque. When they removed the sliding door, the appellants averred that their conduct was lawful in that they were carrying out maintenance work on the Mosque. They maintained that the respondent was not dispossessed of the sliding door as it was not part of his living quarters in terms of his employment contract.

3.	GROUNDS OF APPEAL
[10]	In the notice of appeal the appellants set out their grounds of appeal as follows:
10.1	That the Magistrate erred by refusing the appellants' application to file a further affidavit in terms of rule 55(1)(i) of the Magistrates Court Rules;
10.2	That the Magistrate erred by finding that the applicant ("respondent') proved that he was in peaceful and undisturbed possession of the property;
10.3	That the Magistrate erred in granting a cost order against the respondents ("appellants”);

4.	ISSUES FOR DETERMINATION
[11]	The issues that this court is enjoined to consider can be summed up as follows:
11.1	Whether the magistrate erred in denying the appellants an opportunity to file further affidavits;
11.2	Whether or not the magistrate was correct in dismissing the appellants' point in limine;
11.3	Whether the court a quo was correct in finding that the respondent was in peaceful and undisturbed possession of the sliding door and thus confirming the interim order; and
11.4	Whether the appellants were correctly cited in these proceedings; and
11.5	Whether the court a quo was correct in ordering the appellants to pay the costs of the application.

5.	SUBMISSIONS BY THE PARTIES
[12]	Mr Banderker for the appellants argued that the respondent was not in peaceful and undisturbed possession of the sliding door at the time it was removed from the Mosque. He argued that the trustees of the Mosque were in peaceful and undisturbed possession of the sliding door. Mr Banderker further contended that the respondent raised new issues in his replying affidavit and that there was an application made by the appellants for the filing of a fourth set of affidavit. However, the record of those proceedings do not form part of the appeal record. It was submitted that the magistrate refused the appellants' application for the filing of a fourth set of affidavit. He further argued that the respondent raised new issues in his replying affidavit and that the magistrate should have mero motu given the appellants an opportunity to file further affidavits in terms of rule 55(1)(i) of the Magistrates Court Rules.

[13]	Mr Gerber for the respondent argued that this matter concerns specifically the possession of the sliding door and nothing else. He argued that from the version presented by the appellants, it is clear that the respondent was in possession of the sliding door. It was submitted that the appellants removed the sliding door as they wanted to gain control of the door. Further, it was contended that the submissions by the appellants that the magistrate should have stepped into the fore and allowed the appellants to file further affidavit is groundless and without merit. In Counsel's view, there was no new cause of action raised by the respondent in his replying affidavit and that the averments made in reply could not have taken the appellants by surprise. He argued further that the respondent's application was from the outset based on his possession of the sliding door which formed part of the Mosque quarters which the respondent occupied. Counsel contended that there is no basis whatsoever in law for the court to interfere with the cost order made by the court below. To this end, he submitted that the appeal should be dismissed with costs.

6.	THE APPLICABLE LEGAL PRINCIPLES AND ANALYSIS
6.1	Whether the Magistrate erred in denying the Appellants an opportunity to file Further Affidavits.
[14]	The appellants contended that the court a quo denied them the opportunity to file further affidavits in terms of rule 55(1)(i) of the Magistrates Court rules despite the fact that the respondent raised a new cause of action in his reply. Rule 55(1)(i) of the Magistrates Court Rules provides that a court may in its discretion permit the filing of further affidavits. Thus, the filing of further affidavits in motion proceedings is permitted only with the indulgence of the Court which has the sole discretion on whether or not to allow such affidavits - See Hano Trading CC v JR 209 Investments (Pty) Ltd 2013 (1) SA 161 (SCA).

[15]	As stated above, the filing of further affidavit is not a right that a party has, but rather an indulgence from a Court in the exercise of its discretion. Even if Rule 55 permits a party to file further affidavit, the court will take into account all the facts of the case, including the response to the new facts and further consider what is fair to the parties.

[16]	Further, leave to file further affidavit out of sequence, may be permitted for instance where there was something unexpected in the applicant's replying affidavit or where a new matter was raised and the respondent was obliged to respond thereto. In this matter, it is difficult to decipher what actually happened in the court a quo as the record does not bear testimony that an application for leave to file further affidavit was ever filed. In fact, that was evident from the conflicting arguments that were advanced by the appellants' Counsel in this regard when he attempted to explain the rejection of this further affidavit by the court a quo. It is trite that a party who seeks to serve an additional affidavit must provide an explanation that negatives mala fides or culpable remissness, and must further furnish a proper and satisfactory explanation as to why the information contained in the affidavit was not put up earlier. The suggestion by the appellants' Counsel that the court a quo should have mero motu given the appellants an opportunity to file further affidavits is implausible to say the least. As a matter of fact, it is totally impermissible.

[17]	In Standard Bank of SA Ltd v Sewpersadh and Another 2005 (4) SA 148 (C), Dlodlo J (as he then was) had this to say, a litigant who wishes to file a further affidavit must make a formal application for leave to do so and it cannot simply slip the affidavit into the court file. In this matter, there is no indication of whether an application was made to file the further affidavit or this further affidavit ever made its way to the court file. Instead, there were conflicting and unreliable submissions that were put before this Court by the appellant's Counsel which were not of assistance. In addition, the appellants could not give a plausible explanation during the hearing of this appeal why they failed to apply in terms of rule 19(2) of the Magistrates Court rules to strike out the new facts which they alleged were averred in the respondent's replying affidavit. It is trite law that on appeal the court has to decide the matter on the record of appeal and cannot go beyond what is on the record -See Minister of Police v Gcelushe 2014 JDR 1210 (ECB) at para 6.

[18]	In amplification, in Gold Fields Ltd v Motley Rice LLC 2015 (4) SA (GJ) at paras 122 - 122, it was held that there is no automatic right to file the fourth and further affidavits. The filing of additional affidavits should be allowed only in exceptional circumstances and only with leave of the court. On consideration of the record that was filed and certified correct in terms of rule 50(7) of the Uniform rules, there is no indication whatsoever that the appellants applied for the filing of further affidavits. There is also no indication that the court a quo considered any application for the filing of further affidavit.

[19]	It must be stressed that it is the duty of the attorney charged with prosecuting an appeal on behalf of a client to see to it that a proper record of appeal is placed before the appeal court. In order to discharge that duty, such attorney must peruse and satisfy himself that the record is complete and comply with the court rules. Jeebhai v Minister of Home Affairs 2009 (4) SA (SCA); Senator Versekeringsmaatskappy Bpk v Lawrance 1982 (3) SA 136 (A) 144G-H.

[20]	In the result, I find that this ground of appeal is baseless and unsupported and should be dismissed.

6.2	Were the appellants correctly cited? - In limine
[21]	At the hearing of the application in the court below, the appellants argued that they were trustees of the Mosque and that when they removed the sliding door they were acting in a representative capacity. Nonetheless, when the application was launched, they were cited in their personal capacity. The applicants asserted that the respondent's application should be dismissed on that point alone.

[22]	The appellants averred that as trustees of the Mosque they were doing maintenance of the Mosque when they removed the sliding door. However, from the appeal record it is evident that during the hearing of the application by the court a quo, the Magistrate was concerned with the argument of the appellant's attorney and the following exchange took place between the appellant's attorney and the magistrate­ (Record page 78-79):
Court: Just before I give to Mr Schoeman to reply so if the court accepts that that (sic) part is the ladies section why did they remove the door?
Mr Mohamed: Because the applicant refused to give him the key to the door your worship.
Court: The sliding door:
Mr Mohamed: The sliding door your worship, the applicant refused to give them the key to the sliding door and the applicant had the key in his capacity as the Imam because he used it to move from his house into the main part of the mosque when he was still Imam your worship. So since they became the committee your worship they needed access to the ladies section because the ladies could no more (sic) go through the Imam's house, like he says in his replying papers because the Imam was now no more (sic) on good terms with the committee. So they could no more (sic) go through his house to get access to the ladies section, so they needed to use the sliding door to get the ladies to the ladies' section and that's the reason why they needed to remove the door, to get access for (sic) the ladies section because they could no more (sic) go through the Imam's house.. ."

[23]	It is worth noting that this version was confirmed by Mr Banderker during the hearing of this appeal that the reason the appellants removed the sliding door they wanted to have control over it. Prior to the removal of the sliding door, the respondent enjoyed exclusive control over it. The appellants did not have the key to the sliding door. Same was in the possession of the respondent.

[24]	Before us, the in limine point was not raised as a ground of appeal against the judgment of the magistrate. However, it was only raised in the appellants' heads of argument. In Thompson v South African Broadcasting Corporation 2001 (3) SA 746 (SCA) at para 7, it was held that 'the function of oral argument, especially in a Court of appeal, is supplementary to the written argument. If a party chooses not to raise an obvious issue in his heads, he does so at his peril. The Court is entitled to base its judgment and to make findings in relation to any matter flowing fairly from the record, the judgment, the heads of argument or the oral argument itself.'

[25]	The position prior to the amendment of Rule 49(4) of the Uniform Rules of Court was such that the appellant would be required to confine its case to the notice of appeal. The inflexible approach did not afford the appellants the opportunity to raise the points that would have been omitted during the preparation of the notice of appeal.

[26]	However, the position has shifted considerably after the amendment of rule 49(4) in 2013. (GN R 472 of 12 July 2013). In terms of the new amendment, the sub rule does not require that grounds of appeal be stated in the notice of appeal. In Leeuw v First National Bank Ltd 2010 (3) SA 410 (SCA) at para [2], the Supreme Court of Appeal unanimously found that since the amendment that came into effect in 1987, provided for the first time, for the delivery, prior to the hearing of an appeal, of a concise and succinct statement of the main points which a party intends to argue on appeal, the so-called heads of argument, it can be said that since then the object of the notice of appeal to inform the respondent and the court was also achieved by the heads of argument.

[27]	In other words, despite the fact that a point has not been raised as a ground of appeal in terms of rule 51(7) of the Magistrates Court rules, the delivery of heads of argument somehow supplementing the grounds of appeal, enjoins an appeal court to consider the argument as a ground of appeal as envisaged in rule 51(7) of the Magistrates Court rules. Simply put, the object of the notice of appeal as required in terms of rule 51(7) of the Magistrates court rules is also achieved by the appellant's heads of argument which have to be considered by the appeal court. Based on this authority, this Court is obliged to consider this point. In Leeuw (supra) at para [5] Snyders JA relying on the wording of rule 7 (3) (a) and (b) of the SCA rules held:
"In this court it is not required that grounds of appeal be stated in the notice of appeal. The nature of the proceedings is such that this court is entitled to make findings in relation to 'any matter flowing fairly from the record'. The parties in their written and oral arguments have dealt with all the issues relevant to the appeal and the appellant has not pointed to anything that has been overlooked. The point, apart from being bad, had long lost its significance".

[28]	In my view, the appellants' contention in their heads of arguments that they were cited incorrectly in the application as they were not acting in their personal capacity when they removed the sliding door is deficient and devoid of any merit. When the appellants removed the sliding door, they did not inform the respondent or his wife that they were acting on behalf of the Vredenburg Muslim Jamaat. There was no proof furnished that the appellants were authorised or mandated to act on behalf of the trust when they removed the sliding door. They did not inform the respondent or furnish him with a resolution of the trustees that authorised them to remove the sliding door of the Mosque. There was also no evidence before the court a quo in the form of a resolution of the trustees filed that authorised the appellants to oppose the application for spoliation. To this end, I agree with the views expressed by the respondent's counsel that there was no evidence or circumstances which would have been conveyed to the respondent or his wife that the appellants were acting in a representative capacity.

[29]	The argument that the respondent was present when the three appellants were appointed as trustees of the Mosque and that he should have known that they were acting in their representative capacity is unsupported and bereft of rationality. The respondent would not have known their standing when the appellant's attended at his premises and removed the sliding door. In my view, there can be no issue with the citation of the appellants in their personal capacity as their representative capacity was not disclosed at the respondent's premises and in court. In the result, I find that the magistrate was correct in dismissing the point in limine.

3.2 Was the respondent in peaceful and undisturbed possession of the Sliding door?
[30]	The mandament van spolie is a possessory remedy. Spoliation is the wrongful deprivation of another's right of possession. Spoliation orders are aimed at ensuring that no man takes the law into his own hands. Makowitz v Loewenthal 1982 (3) SA 758 (A). If he does so, the court will summarily restore the status quo ante as a preliminary step to any investigation into the merits of the dispute. It is well established that the court hearing a spoliation application does not concern itself with the rights of the parties (whatever they may have done) before the spoliation took place. Top Assist 24 (Pty) Ltd TIA Form Work Construction v Cremer and Another [2015] 4 All SA 236 (WCC) (28 July 2015) at para 33. It merely enquires whether there has been spoliation or not, and if there has been, it restores the status quo ante. Rosenbuch v Rosenbuch and Another 1975 (1) SA 181 (W) at 183 A-B. In Makowitz v Loewenthal (supra) at 767 F-G, the court held that a spoliation order is a final determination of the immediate right to possession; it is the last word on the restoration of possession ante omnia.

[31]	While in Malan and Another v Green Valley Farm Portion 7 Holt Hill 434 CC and Others 2007 (5) SA 114 (ECO), the court found that the spoliation order as a final order will ordinarily have three important results: firstly, it is not sufficient for the applicant merely to show a prima facie case; he must prove his case on a balance of probabilities as in any other civil case. Secondly, it is an order having an effect of a judgment; and thirdly, an order for costs should be made. The court went on to say that:
"[25] Spoliation is an extra-ordinary remedy in that once the applicant has discharged the onus resting upon him and no recognised defence has been raised successfully, the court has no discretion to refuse the ground of a spoliation order on the ground of considerations relating to the merits of the dispute between the parties".

[32]	In Ivanov v North West Gambling Board 2012 (6) SA 67 (SCA) at 75 B - E, the Supreme Court of appeal observed that an applicant upon proof of two requirements is entitled to a mandament van spolie restoring the status quo ante. The court noted that first is proof that the applicant was in possession of the spoliated thing. In this regard, the cause for possession is irrelevant hence that is why possession by a thief is protected. The second requirement is the wrongful deprivation of possession. The fact that possession is wrongful or illegal is irrelevant, as that would go to the merits of the dispute. The onus rests on the applicant to prove these two requirements. Furthermore, when the proceedings are on affidavit the applicant must satisfy the court on the admitted or undisputed facts, by the same balance of probabilities required in every civil suit, of the facts necessary for his success in the application.

[33]	In this case, it is common cause that the respondent was appointed the Imam of the Vredenburg Muslim Jamaat. He was allocated living quarters in the Mosque. What is in dispute is whether or not the respondent was in possession of the sliding door which was removed by the applicants. The appellants aver that the respondent was not in possession of the sliding door in question.

[34]	It is common cause that the respondent removed the sliding door of the Mosque and the question of ownership was irrelevant. The issue which had to be determined was who was in possession when the sliding door was removed. The argument which was proffered by the appellants' attorney at the court a quo and by Mr Banderker at the hearing of this appeal in this regard is consistent with the version of the respondent. The respondent contended in his founding affidavit that shortly after removing the sliding door, the appellants informed his wife that they will be coming back to install a security gate which they want control over. It is abundantly clear that the appellants removed the sliding door from the premises because they wanted to have control over it. This was confirmed by the appellants' attorney as stated above. The respondent was in possession of the keys of the sliding door and he was the only one who had control of and/or opening the sliding door. In my view, the question of whether the sliding door formed part of the Mosque or the living quarters of the respondent is inconsequential. The crucial question is whether or not the respondent was in possession of the sliding door.

[35]	On a conspectus of all the evidence. I am of the view that the magistrate was correct in finding that the respondent was in possession of the sliding door in question. The respondent had the exclusive use of the key of the door. The respondent ostensibly refused to give the trustees the keys of the sliding door in question pursuant to the pending employment dispute between him and the Mosque. The appellants subsequently decided to take the law into their own hands by removing the sliding door in order to gain control. I am aware that the employment contract of the respondent was terminated at the time. In my view, the questions of illegality or wrongfulness of the respondent's possession of the sliding door is irrelevant. The respondent was in possession of the sliding door to the exclusion of others.

[36]	In De Beer v Zimbali Estate Management Association (Pty) Ltd and Another 2007 (3) SA 254 (N) (11 May 2006) at paras 41 and 54 the court considered mandament van spolie with regard to access to premises and found that it is there to protect possession not access. The court found that such possession must be exclusive in the sense of being to the exclusion of others. For someone to exercise physical control of premises, the key to such premises must however, be the only key to the building. The above does not apply if the owner or someone else holds a duplicate key.

[37]	The magistrate was correct in finding that the respondent who was the Imam was responsible for the upkeep of the Mosque and that he was in peaceful and undisturbed possession when he was despoiled. This view finds support in the fact that the respondent was exclusively in possession of the key of the sliding door which the appellants demanded from him. He was the only one who controlled access through the sliding door. When he refused to hand over the keys to the appellants, the appellant took the law into their own hands and removed the sliding door.

[38]	In light thereof, I am satisfied that the magistrate was correct in finding that the respondent was unlawfully deprived of his possession when the appellants dispossessed him of the door. As stated above, the question of lawfulness was irrelevant. In other words, the fact that his contract as an Imam was terminated is irrelevant for present purposes. Consequently, the Magistrate was absolutely correct in confirming the interim order.

3. Did the Magistrate err in granting costs against the appellants?
[39]	It is a trite principle of our law that a court considering an order of costs exercises a discretion. Ferreira v Levin NO and Others; Vreyenhoek and Others v Powell NO and Ohers 1996 (2) SA 621 (CC). The court's discretion must be exercised judicially. It is well established that the general rule is that costs follow the result. As discussed above, a spoliation order as a final order will ordinarily have three important results. One of those results is that an order for costs must be made. Malan and Another v Green Valley Farm Portion 7 Holt Hill 434 CC and Others (supra).

[40]	In this case, the court a quo found that there was no reason to deviate from the general rule in respect of costs. It is abundantly clear that the appellants took the law into their hands when they removed the sliding door without following the legal process. Their conduct was disgraceful and deplorable. In my view, there is no basis whatsoever for this court to interfere with the cost order made by the court a quo.

[41]	In the result, I propose the following order:
1.	That the appeal is dismissed
2.	That the appellants are ordered to pay the costs.

_______________________
LEKHULENI AJ

I agree and it is so ordered.

_______________________
NDITA J