Court name
High Court Main Division
Case number
APPEAL 42 of 2012
Title

Wylie v Villinger and Others (APPEAL 42 of 2012) [2013] NAHCMD 69 (13 February 2013);

Media neutral citation
[2013] NAHCMD 69
Coram
Ueitele J













REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: A 42/2012








In the matter between:








MARK THOMAS WYLIE
...............................................................................APPLICANT








and








GREG VILLINGER
.........................................................................
FIRST
RESPONDENT



FRANK’S PROPERTY
HOLDINGS ..........................................SECOND
RESPONDENT



ERONGO RED
..............................................................................THIRD
RESPONDENT



THE COUNCIL FOR THE
MUNICIPALITY



OF SWAKOPMUND
..................................................................FOURTH
RESPONDENT








Neutral citation:
Wylie v Villinger (A 42/2012) [2012] NAHCMD 69 (13
February 2013)








CORAM: UEITELE, J



Heard: 12
November 2012



Delivered: 13
February 2013








Flynote: Spoliation
- Mandament van spolie - Applicant must prove peaceful and
undisturbed possession at time of deprivation of possession - Phrase
meaning sufficiently stable or durable possession for the law to take
cognizance of it.








Counter-spoliation only
possible where despoiled possessor acts forthwith (instanter)
and provided that in so acting he or she does not commit a breach of
the peace.



Summary:








The
applicant occupied a piece of land (
erf 1605, Extension 7,
Swakopmund, Republic of Namibia) situated in the
municipal area of Swakopmund. The second respondent is the lawful
owner of the erf. The second respondent,
alleging
that the applicant is in unlawful occupation of the erf, instructed
the third and fourth respondents to disconnect the water and
electricity supply to the erf. The applicant thereafter approached
the court on an urgent and
ex parte
basis and obtained a spoliation order in the form of a
rule
nisi. On the
return day the first and second respondents opposed the confirmation
of the rule on the grounds that the procedure followed by the
applicant was irregular, that the matter was not urgent and that the
second respondent’s action were counter spoliation.








Held,
whilst it is correct that the effect of the interim relief provided
for in the rule
nisi had
the effect of immediately restoring possession of the items concerned
and incorporeal rights to the applicant, this does not mean that a
final order of spoliation was granted on an
ex
parte
basis. The
principles laid down in the cases of
Clegg v
Priestley
and Amalgamated
Engineering Union v Minister of Labour
do not
find application in this matter.








Held,
further that the matter was in fact sufficiently urgent
at the time that it was brought to justify the non-compliance with
the rules of Court and to have been heard as an urgent one.








Held,
further, that all that is required from an applicant in
spoliation proceedings is for her or him to establish that he or she
was in peaceful and undisturbed possession of the thing in question
at the time he or she was deprived of possession.








Held,
further, that the actions of the second respondent were a clear
manifestation of a ‘self-help’ which the remedy of
spoliation is designed to prevent
.










ORDER






  1. The rule nisi
    granted by this court on 14 March 2012 is confirmed.










  1. The first and second
    respondents are ordered to pay the applicant’s costs (the one
    paying the other to be absolved) on a party and party scale (the
    cost to include the cost of one instructing and one instructed
    counsel).











JUDGMENT





UEITELE, J








[1] On 14 March 2012, I
granted the applicant a rule nisi on an urgent and ex parte
basis in a spoliation application. The rule nisi that I
granted amongst others read as follows:








2.
That a rule
nisi
is hereby issued calling upon the respondents to show cause, if any,
on a date to be determined by this honourable court, why an order in
the following terms should not be granted:








2.1.
Directing the first and second respondents to forthwith and ante
omnia
restore applicants peaceful and undisturbed possession of
erf 1605, Extension 7, Swakopmund, Republic of Namibia by causing the
water and electricity supply to be reconnected to the said erf,
failing which, third and fourth respondents are hereby authorized and
directed to forthwith and ante omnia restore applicant’s
peaceful and undisturbed possession of erf 1605, Extension 7,
Swakopmund, Republic of Namibia by reconnecting the electricity and
water supply to the said erf;








2.2.
Interdicting and restraining first and second respondents from in any
way interfering and/or hampering and/or preventing applicant and/or
his staff and/or his clients from having peaceful and undisturbed
possession of erf 1605, Extension 7, Swakopmund, Republic of Namibia;
and








2.3.
Directing first and second respondents to pay the costs of the
application on a scale as between attorney-and-own-client, including
the costs of one instructing and one instructed counsel.








3.
Ordering that paragraphs 2.1, 2.2 and 2.3 supra shall operate as an
interim order with immediate effect pending the return date of the
rule nisi.








4.
Granting applicant leave to bring this application on facsimile
copies and further directing and authorizing the deputy sheriff of
Swakopmund or Windhoek to serve both the order and this application
on respondents by way of facsimile copies.








5.
Further and/or alternative relief.”








[2] The return date of
the rule nisi was 13 April 2012, but the matter was not heard
on that return date. By the return date the first and second
respondents had indicated their intention to oppose the confirmation
of the rule and the rule was by order of Court extended (the
extensions were in all the cases obtained by agreement between the
parties) on a number of occasions. The hearing was ultimately set
down for 12 November 2012.








[3] The applicant is Mark
Thomas Wylie and he conducts auctioneering business in Swakopmund,
Republic of Namibia.








[4] The first respondent
is Mr. Greg Villinger, who is also a businessman and he conducts his
business from No 23, Bernabe de La Bat Street, Katutura, Windhoek,
Namibia. The first respondent is furthermore the 100% member interest
holder in the second respondent.








[5] The applicant seeks
no relief against the third and fourth respondents and they have been
cited merely for the interest they may have in the outcome of these
proceedings.








[6] The applicant alleges
that during October 2011, he and the first respondent or the second
respondent entered into an oral lease agreement in terms of which he
leased erf 1605, Extension 7, Swakopmund, Republic of Namibia, for an
indefinite period. {I will, in this judgment refer to this property
as the erf}. The applicant further alleges that as soon as he entered
into the oral lease agreement he took possession of the erf and
conducted his auctioneering business from that erf.








[7] The applicant further
alleges that he enjoyed the benefit of water and electricity supply
to the erf. He is responsible for payment of the monthly accounts in
respect of the availability and consumption of water and electricity
at the erf, but the accounts for the water and electricity have
remained in the name of the second respondent. He furthermore alleges
that he has been in peaceful and undisturbed possession of the erf
and has enjoyed the benefit of the water and electricity supplied to
the erf since October 2011.








[8] Applicant further
more alleges that on 7 March 2012 the first respondent telephonically
informed him that he (i.e. first respondent) is cancelling the oral
lease agreement with immediate effect. Applicant contested the first
respondent’s right to cancel the oral lease agreement, and on
12 March 2012 and without any prior warning or without applicant’s
consent the water and electricity supply to the business premises was
disconnected on the instructions of first or second respondents.








[9] At the hearing of the
matter, on the extended return date, the first and second respondents
raised two preliminary points: the first being that the procedure
invoked by the applicant was impermissible. It was contended that the
effect of obtaining an interim order with immediate effect in these
circumstances was tantamount to granting a mandament van spolie
as a final order on an ex parte basis which was not competent
and that the rule should be discharged for that reason alone. The
second point taken by the respondent was that the applicant had not
sufficiently established urgency to justify non-compliance with the
rules.








[10]
As regards the first point, Mr. Mouton who appeared for the
respondent, referred me to three different authorities namely;
Herbstein & Van Winsen
1
where the learned authors
opine that
ex
parte
applications
are used in the following circumstances,








(a)
where the applicant is the only person who is interested in the
relief that is being claimed;








(b)
when the relief sought is a preliminary step in the proceedings for
example an application to sue by edictal citation or to attach a
property;



(c)
when though other persons may be effected by the Court’s order
immediate relief (even though it may be temporary in nature) is
essential because of the danger in delay or because notice may
precipitate the very harm that the applicant is trying to forestall,
for example an application for an interdict or an arrest tanguam
suspectus de fuga
under the common law.”








[11]
The second authority, which Mr. Mouton referred me to, is the case of
Clegg v
Priestley
2
where Le Grange, J said
It
is an essential principle of South African law ‘that the Court
should not make an order that may prejudice the rights of parties not
before it
,’
and the third authority is the case of
Amalgamated
Engineering Union v Minister of Labour
3
where Fagan, AJA stated
that:








The
Appellate Division has consistently refused to deal with issues in
which a third party may have a direct and substantial interest
without either having that party joined in the suit or, if the
circumstances of the case admit of such a course, taking other
adequate steps to ensure that its judgment will not prejudicially
affect that party’s interests …”








[12]
The above quoted cases have been approved and followed by this Court
in a number of cases
4
and I fully accept and
endorse those principles. But the question remains whether those
principles find application to the case at hand. I am of the view
that the principles quoted above do not find application in this
matter. The reasons for my view are best articulated by echoing the
words of Smuts,
AJ
(as he then was) when he said:








“…this
Court in granting the
rule
nisi,

had
not granted a final order on an
ex
parte

basis.
Whilst it is correct that the effect of the interim relief provided
for in the rule
nisi
had
the effect of immediately restoring possession of the items concerned
and incorporeal rights to the applicant, this does not mean that a
final order of spoliation was granted on an
ex
parte

basis.
The respondent was entitled to come to Court on the return day and to
place material before this Court opposing the confirmation of the
rule and the grant of a final order. This the respondent has done in
this matter.”
5








It follows that this
point taken by the first and second respondents contending that the
applicant had followed the wrong procedure in this matter is not to
be upheld.








[13] As regards the
second point (i.e. the point relating to urgency) Mr. Mouton
submitted that the applicant has not complied with the requirements
for urgency especially because the applicant does not specify the
‘amenities’ he or both he and his clients/customers have
been deprived off and does also not specify in which sense the
business premises were rendered unfit for human occupation.








[14] I do not agree with
Mr. Motoun. The applicant in his supporting affidavit alleges the
following:








30
I have unlawfully been deprived of the supply of electricity thus:








30.1
I am unable to activate the security alarm at night, with the result
being that I am unable to protect my business assets and the assets
of my clients. Clients have deposited various goods on my premises
for safe keeping until the goods are auctioned-off.








30.2
Furthermore I have an auction scheduled for Saturday the 17th
day of March 2012, at the business premises. Unless water and
electricity supply is restored to the premises before then, I will be
left with no alternative but to cancel the auction. This will
seriously affect the reputation of my business and cause me loss of
income.








31
I have unlawfully been deprived of the supply of water, thus, basic
amenities like drinking water and ablution facilities are unavailable
at the business premises. This is an inhumane and unhygienic manner
in which to, not only, run a business, but be employed.”








The
above allegations are explicit and form the basis on which the
applicant relies for urgency. It is now accepted that an application
for spoliation is urgent by its very nature. It exists to preserve
law and order and to stop and reverse self- help in the resolution of
disputes between parties.
6
Apart from the fact that
an application for spoliation is urgent by its very nature,

I am satisfied that
the matter was in fact
sufficiently urgent at the time that it was brought to justify the
non-compliance with the rules of Court and to have heard the matter
as an urgent one.








[15] I now turn to the merits of the
matter. There is a plethora of cases on spoliation. In the Zimbabwean
case of
Chisveto v Minister
of Local Government & Town Planning
7,
Reynolds, J stated that:








Mr
Mafara, for the respondent, argued that an action of spoliation was
committed only if a possessor was in lawful possession of the
property in question when he was dispossessed of that property. His
contention was that as the applicant in the present case had been
served with a proper notice of termination, he was, therefore, in
unlawful occupation of the house on 16 March, and his forcible
eviction on that date did not amount to an act of spoliation. This
seems to me to be a somewhat surprising submission for, as I
understand it
,
it is a well-recognized principle that in spoliation proceedings it
need only be proved that the applicant was in possession of something
and that there was a forcible or wrongful interference with his
possession of that thing
that
spoliatus
ante omnia restituendus est

(Beckus
v Crous
and
Another
1975
(4) SA215 (NC). Lawfulness of possession does not enter into it
.
The purpose of the
mandament
van spolie
is
to preserve law and order and to discourage persons from taking the
law into their own hands.
To
give effect to these objectives, it is necessary for the
status
quo ante
to
be restored until such time as a competent court of law assesses the
relative merits of the claims of each party. Thus it is my view that
the lawfulness or otherwise of the applicant’s possession of
the property does not fall for consideration at all. In fact the
classic generalization is sometimes made that in respect of
spoliation actions that even a robber or a thief is entitled to be
restored to possession of the stolen property.”








[16]
In the matter of
Kuiiri
and Another v Kandjoze and Others
8
Parker, J
said: (I must hasten to add that although the order of Parker,

J was reversed on appeal
the legal principles were confirmed),








Thus,
according to the authorities, an applicant for a spoliation order
must first and foremost establish that he or she was in peaceful and
undisturbed possession of the thing in question at the time he or she
was deprived of possession. As Flemming, J said in
Mbangi
and Others

supra at 335H the authorities show a certain consistency in requiring
not merely 'possession' as a prerequisite for granting of a
spoliation order, but 'peaceful and undisturbed' possession.”








[17]
In
Ness
and Another v Greef
9
the court considered the
meaning of the phrase
peaceful
and undisturbed,
Vivier,
J who delivered judgment
of the full bench said:








By
the words "peaceful and undisturbed" is probably meant
sufficiently stable or durable possession for the law to take
cognizance of it.”
10








[18]
In
Mbangi
and Others v Dobsonville City Council
11
Flemming, J
first analyzed the purpose of the spoliation action. He said:








When
a Court becomes involved with the law, it is rarely otherwise than as
a matter of enforcing a right or entitlement of a person. The
termination of spoliation forms a contrast. A Court interferes even
to assist a party who should not have possession and, furthermore, in
all cases (except where lawful authority is relied upon by the
respondent) without taking any interest at all in what rights do or
do not exist. That inverted approach finds its explanation and
justification therein that the Court is not protecting a right called
'possession', but that in the interests of protecting society against
self-help, the self-service undertaken by a spoliator is stopped as
being a justiciable wrong…
'If
private persons could right and avenge themselves, the country would
not be fit to live in.
'
The mandament van spolie finds its immediate and only object in the
reversal of the consequences of interference with an existing state
of affairs otherwise than under authority of the law, so that the
status
quo
ante

is restored
.
{My underlining}. The mandament van spolie finds its immediate and
only object in the reversal of the consequences of interference with
an existing state of affairs otherwise than under authority of the
law, so that the status
quo
ante
is
restored.”








[19] After setting out
the purpose and object of the spoliation action the learned judge
said the following:








It
is my view that the requirement of 'peaceful and undisturbed
possession' was recognised to cater for the realities and to prevent
the granting of the remedy from working injustice rather than
operating in furtherance of a policy designed to discourage
self-help. It is probably the obverse of that requirement which is
reflected by the view that an own warding-off of spoliation is no
longer possible only
'nadat
die situasie gestabiliseer het'
The
applicant for spoliation requires possession which has become
ensconced, as was decided in the
Ness
case.
See also
Sonnekus
1986
TSAR at 247. It would normally be evidenced (but not necessarily so)
by a period of time during which the
de
facto

possession
has continued without interference.”
12








[20] Having set out the
principle relating to the remedy of spoliation I now proceed to apply
those principles to the facts of this matter. In the present matter
the applicant alleges that;









  1. he took occupation,
    pursuant to an oral lease agreement with the first or second
    respondents, of erf 1605, Extension 7, Swakopmund, Republic of
    Namibia {I will, in this judgment, for ease of reference refer to
    this property as the ‘erf’} during October 2011;










  1. he brought the
    electricity and sewerage system into operation, that on 12 March
    2012 the second respondent instructed the third and fourth
    respondents to disconnect the water and electricity supply to the
    erf;









(c) he enjoyed the
benefit of water and electricity supply to the erf; and



(d) he has been in
peaceful and undisturbed possession of the business premises.








[21] The first respondent
deposed to the answering affidavit on his own behalf and also on
behalf of the second respondent, in that answering affidavit the
first respondent denied that:



(a) he or the first
respondent entered into a lease agreement with the applicant;



(b) the applicant has
been in peaceful and undisturbed possession of the property or any
services to the property.



(c) that he cancelled any
lease agreement. He (first respondent) alleges that what he did was
simply contra spoliation.








[22]
I am of view that the most of the denials by the first and second
respondents will not assist me to resolve the real issue before me
namely whether or not the applicant was in peaceful and undisturbed
possession of the erf. The question as to whether or not the
applicant was in peaceful and undisturbed possession of erf is a
conclusion which this Court can reach after it has evaluated all the
evidence before it. I thus hold that the denials by the first and
second respondents do not create a real, genuine or
bona
fide
dispute
of fact between the applicant and the first and second respondents.








[23]
The first and second respondents do not deny the allegation by the
applicant that he (i.e. applicant) has been in possession of the erf
since October 2011. What the second respondent vehemently denies is
that he has concluded an oral lease agreement with the applicant. I
am of the view that for the purposes of spoliation proceedings it is
irrelevant for me to resolve the dispute as to whether there was an
oral lease agreement or not.
I
say so because, it is now a firmly entrenched principle of our law
that for the grant of a
mandament
van spolie
and
the fundamental principle of the remedy of
mandament
van spolie
is
that no one is allowed to take the law into his own hands. All that
the
spoliatus
has to
prove is possession of a kind which warrants the protection afforded
by the remedy and that he was unlawfully dispossessed. If he does so
the Court will summarily restore the status
quo
ante
and
will do so as a preliminary to any enquiry or investigation into the
merits of the dispute
13.








[24] The first
respondent’s version is that during January 2012 he visited
Swakopmund and drove past the erf and to his surprise the walls were
painted a different colour and new gates were affixed. He states that
it became evident that someone was operating a business from the erf.
The first respondent further states that when he realized that
someone was operating a business on his erf he made enquiries as to
who was conducting business on his erf, his enquiries led him to the
applicant. After discussions with the applicant he (i.e. first
respondent) agreed to give the applicant reasonable time to vacate
the erf. He alleges that he gave the applicant until end of February
2012 to vacate the erf.








[25] The first respondent
admits that on 06 March 2012 he spoke to the applicant and enquired
whether the applicant had vacated the erf (as he allegedly promised
to do). When the applicant confirmed that did not vacate the erf or
that he refuses to vacate the erf he (first respondent) instructed
the third and fourth respondent to disconnect the water and
electricity supply to the erf. He (i.e. first respondent) states that
he was entitled to act as he did because his actions ‘amount to
no more than contra-spoliation’. I disagree with the first
respondent, his actions are, in my view, a clear manifestation of a
‘self-help’ which the remedy spoliation is designed to
prevent.








[26]
I say,
the
first respondent’s actions are a clear manifestation of a
‘self-help’ for the following reasons. My understanding
of the authorities is that counter-spoliation is only possible where
the despoiled possessor recovers the article or property of which he
or she has been despoiled provided he or she acts forthwith
(
instanter)
and provided that in so doing he or she does not commit a breach of
the peace. A classic example of counter-spoliation would be where a
bag-snatcher grabs a handbag from a lady and she promptly grabs it
back. Another example of counter spoliation is given by Fleminng,

J14
where he said: ‘If
a housebreaker should occupy a bed in the spare room at 09:00 and if
the first opportunity for reaction is the owner's arrival at 12:00
when he insists, perhaps with the use of physical means, upon the
criminal's departure, the granting of a spoliation order against the
owner would confirm him who is truly the spoliator in possession.’








[27]
In the case of
Mans
v Loxton Municipality and Another
15
the facts are briefly as
follows. Sheep which belonged to the plaintiff (Mans) were found
trespassing on land which belonged to the first defendant (Loxton
Municipality). The employees of the first defendant decided to drive
the sheep to the first defendant’s pound.
While
the employees were driving the sheep to the first defendant’s
pound the plaintiff rescued and drove them to a camp hired by him.
The second defendant {an employee of first defendant}, together with
certain other employees, then proceeded to the plaintiff’s
camp, opened the gates thereof, collected the sheep, drove them to
the pound and there impounded them. After a full review of the
authorities dealing with the right of counter-spoliation Steyn J
concluded as follows:








From
the authorities cited above, and more especially Savigny, and Huber,
it seems to me that the principle of
spoliatus
ante omnia restituendus est

has been developed and become engrafted on to our legal system so as
to preserve peace in the community … Breaches of the peace are
punishable offences and to prevent potential breaches the law enjoins
the person who has been despoiled of his possession, even though he
be the true owner with all rights of ownership vested in him, not to
take the law into his own hands to recover his possession, he must
first invoke the aid of the law, if the recovery is
instanter
in the sense of being still a part of the
res
gestae

of the act of spoliation then it is a mere continuation of the breach
of the peace which already exists and the law condones the immediate
recovery, but if the dispossession has been completed, as in this
case where the spoliator, the plaintiff, had completed his rescue and
placed his sheep in his lands, then the effort at recovery is, in my
opinion, not done
instanter
or forthwith but is a new act of spoliation which the law condemns”.








[28] In the present
matter it is not disputed that the applicant took occupation of the
erf during October 2011, the first respondent became aware of the
occupation during January 2012 (i.e. approximately three months
later), the first respondent did not act ‘instanter or
forthwith’
to wrestle possession from the applicant, he
instead granted the applicant more than one month to vacate the erf.
It is only more than five months, after the applicant had taken
occupation that the first respondent acted to cause the water and
electricity supply to the erf to be disconnected. I am thus of the
view that the first respondent acted wrongfully and despoiled the
applicant when he ordered the water and electricity supply to the erf
to be disconnected. The first second should have invoked the aid of
the law and instituted a civil action for the ejectment of the
applicant from the erf, he elected, however, to take the law into his
own hands to assert his authority. It follows in my view that the
applicant was entitled to the relief claimed and granted in the rule
and that the rule should be confirmed.








[29] There remains the
question as to costs. The first and first respondents were called
upon to show cause why an order as to costs on attorney and client
scale should not be granted. No reasons were advanced in argument or
on the papers why a punitive order of cost is warranted. I thus do
not think that, in my discretion, and taking into account the nature
of the case, I should make such an order of cost. In my opinion, it
is just and fair to follow the general rule and to simply award costs
to the applicant on the normal scale.








[30] In the result I make
the following order:









  1. The rule nisi
    granted by this court on 14 March 2012 is confirmed.










  1. The first and second
    respondents are ordered to pay the applicant’s costs (the one
    paying the other to be absolved) on a party and party scale (the
    cost to include the cost of one instructing and one instructed
    counsel).









----------------------------------



SFI UEITELE



Judge



APPEARANCES








APPLICANT: MT Wylie



Instructed by Neves Legal
Practitioners













FIRST AND SECOND



RESPONDENTS: C J Mouton



Instructed by Mueller Legal
Practitioners








THIRD RESPONDENT: No
Appearance








FOURTH RESPONDENT No
Appearance




1Herbstein
& Van Winsen; The Civil Practice of the Supreme Court in
South Africa, 4Th ed (1997) at 232





21985
(3) SA 950 (WLD) at 954A – C





31949
(3) SA 637 (A) at 651





4See
the unreported case of Neves and Another v Neethling t/a Andre
Neethling Consultancy
High Court case No. 25/2012 delivered on
28 June 2012; Ruch v Van As 1996 NR 345 .





5In
Ruch v Van As (supra footnote 5) at 350-351





6Uvhungu-Vhungu
Farm Development CC v Minister of Agriculture, Water & Forestry

2009 (1) NR 89 (HC); Karori (Private) Limited and Another v
Mujaji
an unreported judgment of the High Court of Zimbabwe
(sitting at Harare) under case number HC/824/2007 delivered on 05
July 2007.





71984
(1
)
ZLR 248
at
250 A-D





82007
(2) NR 749 (HC) at 752





91985
(4) SA 641 (C) at 647





10Also
See Professor A J van der Walt's article in (1983) 102
SALJ
172 at 177





111991
(2) SA 330 (W) at 336





12Supra
at 338





13Tjerije
v Kaanjuka
1994 NR 17 (HC); Kuiiri and Another v Kandjoze and
Others ( supra foot note 8; Nino Bonino v De Lange 1906 TS 120 at
122; Yeko v Quana 1973 (4) SA 735 (A) at 739. H





14In
the matter of Mbangi and Others v Dobsonville City Council supra
footnote 11 at 337





151948
(1) SA 966 (C) at 977 - 978