Court name
High Court Main Division
Case number
APPEAL 316 of 2015
Title

Ludik v Keeve & Another (APPEAL 316 of 2015) [2016] NAHCMD 4 (20 January 2016);

Media neutral citation
[2016] NAHCMD 4
Coram
Ueitele J



















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



HIGH
COURT
OF NAMIBIA: MAIN DIVISION, WINDHOEK


JUDGMENT


CASE
NO.: A 316/2015


DATE:
20 JANUARY 2016


In
the matter between:


MARIE
MARYNA
LUDIK
................................................................................................APPLICANT


And


FRIKKIE
DAWID
KEEVE...............................................................................FIRST
RESPONDENT


DAPHNE
SWANEPOEL PROPERTIES
CC.............................................SECOND
RESPONDENT


Neutral
citation: Ludik v Keeve & Another (A 316/2015) [2016]
NAHCMD 4


(20
January 2016)


Coram:
UEITELE,J



Heard on: 13 &
18 November 2015


Delivered
on: 20 January 2016


Flynote:
Practice
Notice
of Motion
- Amendment of -
Substitution of the name of the right respondent for that of the
wrong one - Application for amendment always in order unless made
mala fide
or prejudicial to other party - Courts gradually moving away from
overly formal approach - Mere fact that citation or description of
party happening to be of non-existent entity not per se rendering
notice of motion void - Citation of second respondent nothing more
than misdescription - Application for amendment allowed.


Practice
-
Parties -
Misjoinder or non-joinder- Test of a direct and substantial interest
in subject-matter of litigation the decisive criterion.


Spoliation
- Mandament
van spolie
- Possessor need not be
physically present to be in possession - Respondents changing locks
on premises leased by appellants - Respondents not at liberty to take
law into own hands.


Summary:
The respondents had leased
Erf [4…….], [7…..]
[R……] Avenue, [K…….], [S……..],
Namibia, to the applicant. At the termination
of the applicant did not hand over the keys of the property to the
respondents. On 4 November 2015 the respondents went to the property
replaced the keys to the property and changed the frequencies of the
remote controls to the property. Applicant applied for a spoliation
order against the respondents.  Respondents opposed the
application and also raised two points in limine,


Held,
that
since the second respondent as described in the amended
notice of motion is clearly recognizable from the original notice of
motion, the amendment sought by the applicant amounts to no more than
the 'clarification of a defective pleading' and not the introduction
of a new legal entity as the second respondent the applicant's
application for the amendment must thus succeed.


Held,
further
the right of a defendant to demand the joinder of another
party and the duty of the court to order such joinder or to ensure
that there is waiver of the right to be joined (and this right and
this duty appear to be co-extensive) are limited to cases of joint
owners, joint contractors and partners and where the other party has
a direct and substantial interest in the issues involved and the
order which the Court might make. These circumstances were absent in
this matter.


Held,
furthermore that
that the remedy of mandament van spolie
is aimed at every unlawful and involuntary loss of possession by any
possessor, and its object is no more than the restoration of the
status quo ante as a preliminary to any inquiry or
investigation into the merits of the respective claims of the parties
to the thing in question.


Held,
furthermore that the applicant
was in peaceful and undisturbed
possession of the property on 4 November 2015 when the respondents
resorted to self-help and changed the locks and alarm frequencies to
the property accordingly, the respondents
performed an act of spoliation.


ORDER


1.
The non-compliance with the rules of this
court and hearing the application on an urgent basis as is envisaged
in rule 73(3) of the High Court Rules is condoned.


2.
The application for the amendment of the
notice of motion
for the substitution of Daphne Swanepoel
Properties CC”
with “Daphne Swanepoel trading as
Daphne Swanepoel Properties”
as the second respondent is
granted.


3.
The first and second respondents are
ordered to forthwith restore the applicant's peaceful and undisturbed
possession
ante omnia
in and to
the property described as: [Erf 4……],
[7…..] [R……..] Avenue, [K…….],
[S…….], Namibia, to the applicant.


4.           
The first and second respondents, jointly
and severally, the one paying the other to be absolved, are ordered
to pay applicant's costs, such costs are to include the costs of one
instructing and one instructed counsel.


JUDGMENT


UEITELE,
J


Introduction


[1]
On 9 November 2015, Ms Marie Maryna Ludik
(to whom I will, in this judgment, refer to as the applicant), caused
a notice of motion to be issued out of this court notifying Frikkie
Dawid Keeve as first respondent
Daphne Swanepoel Properties CC
as second respondent (I will, in this judgment, refer to them as the
respondents, except where the context requires that I refer to each 
as first or second respondent) that she will on 13 November 2015 and
on an urgent basis apply to this court for the following relief:


1.
That the applicant’s non-compliance with the forms and service
provided for by the rules of court is condoned and the matter is
heard as one of urgency as contemplated by Rule 73(3) of the Rules.


2.
2.1       That the first and second
respondents immediately and forthwith restore
ante
omnia
possession of the property
described as: [Erf 4…….], [7……..] R…….]
Avenue, [K……..], [S…….], Namibia, to the
applicant.


2.2         
That the first and second respondents pay
the applicant’s costs, jointly and severally, including the
costs of one instructing and one instructed counsel.’


ALTERNATIVELY


3         
3.1       That a
rule
nisi
do issue calling upon the first
and second to show cause if any, on a date determined by this court
why an order that the first and second respondents immediately and
forthwith restore
ante omnia
possession of the property described as: [Erf 4…….],
[7……] [R……] Avenue, [K……..],
[S…….], Namibia, to the applicant should not be made
final.


3.2      
That the first and second respondents pay the applicant’s
costs, jointly and severally, including the costs of one instructing
and one instructed counsel.


3.3      
That the order in paragraph 3.1 hereof shall operate with immediate
effect pending the return date of the
rule
nisi.


[2]
On 11 November 2015 both the first and second respondents gave notice
of their intention to oppose the applicant’s application and on
12 November 2015 the first respondent filed the answering affidavit
on his own behalf and on behalf of a certain Daphne Swanepoel.


[3]       
In the answering affidavit the respondents raised two points
in
limine
the first being that the
applicant incorrectly cited the second respondent resulting in the
misjoinder of Daphne Swanepoel Properties CC and the non-joinder of
Daphne Swanepoel t/a Daphne Swanepoel Properties. The first
respondent states in the answering affidavit that there is no entity
or
persona
such as Daphne Swanepoel Properties CC. He further states that in as
far as there is an attempt to make a reference and/or to cite Daphne
Swanepoel, the correct citation would have been Daphne Swanepoel t/a
Daphne Swanepoel Properties.


[4]       
The first respondent continued in his opposing affidavit to state
that Daphne Swanepoel is a sole proprietor and has been issued a
Fidelity Fund Certificate by the Namibian Estate Agents Board (No
R2015/4659) in terms of which it is clearly evident that her status
is one of a sole proprietor and the name of her firm/company is
Daphne Swanepoel Properties.  He further states that in the
notice of motion, the applicant in essence seeks her relief jointly
against both him and Mrs Swanepoel and that it is therefore
imperative that Daphne Swanepoel be joined to these proceedings as a
party.  The first respondent furthermore alleges that he is
married to his wife, Martha Keeve, in community of property and that
she is therefore a joint co-owner of the property and she has also
not been joined to this application.


[5]       
The second point in limine raised by the respondents is the
alleged failure by the applicant to disclose a cause of action. The
first respondent alleges that the applicant is attempting to enforce
and/or preserve its lien over property by virtue of one or other
impending cause of action founded in either a debtor/creditor
relationship or enrichment.   He states that in as far as
the applicant relies on some or other debtor/creditor relationship
between her and them (i.e. first and second respondents), she would
need to at least allege the basis upon which the relationship
exists.  In its most simple form she would at least have to set
out and properly allege the underlying contract which would need to
have existed before there could be a debtor/creditor relationship. 
She fails to do this, so the argument went.  He furthermore
alleges that in as far as she bases her cause for enforcing her lien
on enrichment, the applicant would need to make the essential
allegations to demonstrate that there was at least prima facie
an instance of unjust enrichment where she was impoverished and the
respondents enriched. 


 


[6]       
On 13 November 2015 when the matter was called the applicant had not
filed her replying affidavit, I accordingly postponed the matter to
18 November 2015 to enable the applicant to file her replying
affidavit and for the parties to submit written heads of arguments. 
In her replying affidavit the applicant indicated that the question
of the citation of the second respondent is a legal matter and that
her legal representative will in argument ask leave to rectify the
citation of the second respondent. During oral submission Mr Jacobs
who appeared on behalf of the applicant made submission and sought an
order amending the citation of the second respondent to refer to her
as Daphne Swanepoel t/a Daphne Swanepoel Properties. Before I deal
with the points in limine raised by the respondents and the
merits of the application if necessary, I deem it appropriate to,
first briefly set out the background of the application.



 


Background



 


[7]
On the 15th
of July 2014, the first respondent and Ms Daphne Swanepoel who trades
as Daphne Swanepoel Properties the estate agent acting on behalf of
Frikkie Dawid Keeve on the one hand and the applicant on the other
hand signed a contract of lease in respect of [Erf
4……],
No. [7……] [R……] Avenue, [K…….],
[S…….], Namibia. (I will, in this
judgment, refer to this Erf
as the property) in terms of which
the applicant leased from the first respondent and the first
respondent rented the property to the applicant for a period of
twelve months. The lease agreement would terminate on 31 July 2015.


 


[8]
After the parties signed the lease agreement the applicant moved into
the property and took occupation of the property. The applicant
alleges that when she moved into the property it was a newly built
property and all the fixtures and fittings were not installed. 
As such, she spent more than N$ 125 899 on improvements to the
property
during the time she was in
possession.


 


[9]
Despite the fact that the lease agreement terminated on 31 July 2015
as stipulated in clause 15 of that agreement, the first respondent
and the applicant orally agreed to extend the term of the lease and
she remained in possession of the property after 31 July 2015. 
During the period of extension of the lease agreement (that i.e.
between 1 August 2015 and 15 October 2015) the parties discussed the
possibility of the applicant purchasing the property. The
negotiations to purchase the property stalled primarily because the
parties could not agree as to who was to pay the estate agent’s
commission.


[10]
On the 15th of October 2015, the applicant sent a text
message to the first respondent enquiring about the progress in
respect of the sale and purchase of the property. The first
respondent replied to the text message stating that another purchaser
had signed a deed of sale for the property and that they would have
to “see what happens”. The applicant responded to
this text message stating that she could not wait in uncertainty as
she had family visiting from South Africa in December 2015. 
After that response the first respondent gave the applicant notice to
vacate the property by 30 November 2015.


 


[11]     
On 28 October 2015 the applicant send an electronic message to the
first respondent. In the electronic message the applicant amongst
other things states that she is busy packing and expects to be out of
the property by the following week. In the mail she furthermore
states that she wants to know who she must give the keys of the
property to and who will come and do the inspection of the property.
She thereafter removed all her belongings from the property locked
the doors and activated the alarm and kept the keys and all the
garage remote controls.  She states that she was under the
impression that the first respondent would reimburse her for the
improvements which she had effected to the property.  She was
thus waiting for the first respondent to reimburse her before she
would hand over the keys and the remote controls to the second
respondent.


 


[12]     
The applicant contacted the first respondent and enquired from him as
to when he was going to reimburse her. At that time the first
respondent was in Tanzania and he advised the applicant to take up
the matter with the second respondent. I pause here to observe that
the version of the parties slightly differ as to what was said
between the applicant and the second respondent during this contact.
But what is not in dispute is that the applicant did not hand over
the keys and the remote controls to the second respondent.


 


[13]     
On the 3rd of November 2015, and after seeking legal
advice the applicant addressed an electronic mail to the respondents
in which she informed them that she had sought legal advice on the
aspect of her claim for reimbursement and that “the
attorney’s advice is that I do not hand over the keys until I
have a written letter from you to pay the outstanding amounts”

and “the sooner you give me an answer the sooner we can do
the handover of the keys and then this whole story will be
finalised”
.


 


[14]       
During the morning of the 4th of November 2015, the second
respondent contacted the applicant and requested her to provide her
with the receipts for the improvements. Applicant alleges that she
delivered (but first respondent denies this allegation) the receipts
to the second respondent’s at her office.  Later during
the afternoon, the applicant received a telephone call from the
security company, Rubicon Security, who informed her that the alarm
had been set off at the property and that it was their technicians
that had set off the alarm. 


 


[15]       
After the conversation with the security company the applicant and a
certain Ms Ronel Ludik went to the property.  Upon their arrival
at the property they found a man dressed in Rubicon Security clothing
atop a ladder busy working on the alarm system.  She asked what
he was doing there and the man who identified himself as Daphne
Swanepoel’s husband informed her that the “
owner”
had instructed them to change all the locks to the doors and to
change the alarm codes’ frequencies.  She asked him why
they were doing this and he replied that the applicant’s
contract had been cancelled and that she was therefore not allowed
access to the property anymore. They also changed the installed
frequency of the automated garage doors and as a result her remote
control could no longer operate the automated garage doors. It is
these events which resulted in her launching this application on the
9
th of
November 2015. I will now proceed to consider the points
in
limine
raised by the respondents.


The
points
in limine


Incorrect
citation of second respondent.


[16]     
As I have indicated in the introductory part of this judgment the
respondents take issue with the fact that the second respondent is
cited as Daphne Swanepoel Properties CC.  They state that no
entity or persona such as Daphne Swanepoel Properties CC
exists. They further content that the effect of citing a non-existing
entity is that the party who has in interest in this matter namely Ms
Daphne Swanepoel t/a Daphne Swanepoel Properties
was not joined.


[17]     
The applicant’s legal practitioner of record Ms Ankia Delport
of Delport Nederlof Attorneys filed a supporting affidavit to the
applicant’s replying affidavit in which she explains that the
incorrect citation of the second respondent was occasioned by how the
second respondent described herself on her website.  Ms Delport
states that t
he
information of the citation of the second respondent was obtained
from her website at
http://www.dsprop.com/about-us,
(Ms. Delport attached it as Annexure “AD 3” to her
affidavit) where at the bottom of the page it states:


Daphne
Swanepoel (CEO/Proprietor)


DAPHNE
SWANEPOEL PROPERTIES CC.’


 


Ms.
Delport continues and states that the incorrect citation of the
second respondent was occasioned by her own webpage and the applicant
cannot be blamed therefore. She further gave notice in  the
replying affidavit that her instructed counsel will at the hearing of
the application apply for the substitution of Daphne Swanepoel
Properties CC”
with “Daphne Swanepoel trading as
Daphne Swanepoel Properties”
as the second respondent.


 


[18]     
At
the hearing of this application
Mr
Jacobs who appeared for the applicant argued that where a party is
incorrectly described, the incorrect description can on application
be corrected by the court provided that there is no prejudice to the
party. In support of this submission Mr Jacobs referred me to the
case of
Barnard
and Others NNO v Imperial Bank Ltd and Another.

[1]
He
accordingly moved an application from the bar for leave to amend the
notice of motion in order to correctly “cite” the second
respondent.


 


[19]     
Mr Jones who appeared for the respondents objected to the granting of
the amendment sought.  The basis of Mr Jones’ objection is
firstly that there is no substantive application by the applicant and
secondly that Daphne Swanepoel CC is non-existent
persona
and the citation of that non-existent entity is not simply a
misnomer. He referred me to the matter of
L
& G Cantamessa v Reef Plumbers
[2]
in which an action based on contract had been instituted in a
magistrate's court against two partners described in the summons as
L. and G. Cantamessa, who it appeared were also the directors and
sole shareholders in a private company known as L. and G. Cantamessa
(Pty.) Ltd. During the trial of the action it became clear that the
contract was made with the company and not with the firm, and
application was made by the plaintiff to substitute the name of the
company as defendant. The magistrate held that the name of the
defendants in which they were sued, i.e. the name of the partnership,
was a mere misnomer, and he allowed the amendment.


 


[20]     
The defendant applied for review of the proceedings on the ground of
irregularity and the review court set them aside on the ground that
the company was an entirely different
persona
in law from the partnership, that the effect of the amendment was to
introduce a new defendant into the case, that this was not merely a
matter of misnomer, and that there had been a gross irregularity in
that a defendant who had not been cited and was not before the court
had been introduced into the action as the defendant at the
conclusion of the case.


[21]     
As regard the protest by Mr. Jones that there is no substantive
application I simply note that this application was brought on an
urgent basis and that the applicant sought an order condoning her
non-compliance with the forms and service provided for by the rules
of court. Mr. Jones did not dispute the urgency of this matter nor
did he argue that the applicant failed to make out a case for
urgency. I am satisfied that this matter is urgent and I condone the
applicant’s noncompliance with the rules of court in respect of
form and service. I therefore find that in the circumstances of this
matter the notice in the replying affidavit that the applicant will
apply for an amendment of the citation of the second respondent
suffices for me to consider it even in the absence of substantive
application.


[22]     
It is trite law that the court hearing an application for an
amendment has a wide discretion whether or not to grant it, a
discretion which must clearly be exercised judicially.[3]
The general approach of this court, which has been confirmed in
numerous cases, is that an amendment of a pleading should always be
allowed unless the application to amend is
mala
fide

or unless the amendment would cause such injustice or prejudice to
the other side as cannot be compensated by an order for costs and,
where appropriate, a postponement. [4]


 


[23]     
The primary object of allowing an amendment is to obtain a proper
ventilation of the dispute between the parties, to determine the real
issues between them, so that justice may be done[5].
The power of the court to allow even material amendments is limited
only by considerations of prejudice or injustice to the other
side.[6] Despite this liberal
attitude of the court towards amendments to pleadings, it must not be
forgotten that a litigant seeking to make an amendment does not do so
as a matter of right, but is seeking an indulgence and must offer
some explanation as to why the amendment is required.[7]


[24]     
Ms Delport has offered an explanation as to how and why the second
respondent is wrongly cited. Mr. Jones argued that, the applicant
knew or certainly ought to have known of the correct description of
the second respondent. It is true as Mr. Jones argued, that, from the
website page attached as Annexure “AD 3” to Ms. Delport’s
affidavit the following is clear. The page link is titled “About
Daphne Swanepoel Properties” (no reference to CC). The heading
(opener) on the page (in bold large print) reads “About Daphne
Swanepoel Properties” (no reference to CC). Under the heading
“Sphere of Business” the following appears-


As
an established real estate agency,
Daphne
Swanepoel Properties
(no reference to
CC) offer customers …


The
second page link (2 of 2) is titled “About Daphne Swanepoel
Properties” (no reference to CC). At the end of the write up an
electronic signature appears as-Daphne’ Swanepoel
(CEO/Proprietor). It is also correct, as Mr Jones submitted that a
“CEO” and “Proprietor” are not usual
references to office bearers in a close corporation, who are known as
managing members and members.


 


[25]
Even if I assume in favour of the respondents that the applicant knew
or ought to have known of the correct description of the defendant
from website description, it is clear from the papers before the
court that the firm of attorneys who ultimately issued the notice of
motion, acting on the instructions of the applicant, did not know the
correct description of the second respondent. From the affidavit
filed by Ms. Delport in support of the application for amendment, it
is evident that the said Ms. Delport relied on the website page of
the second respondent as to the precise 'legal status' of the Daphne
Swanepoel Properties. Nevertheless, I am therefore satisfied that the
mistake made in the description of the defendant was a bona fide
one and that I am not precluded from granting the amendment simply
because of what one might call the ineptitude or the carelessness of
the applicant or her legal representatives or both the applicant and
her legal representative.


[26]     
I would, however, be precluded from granting the amendment if the
effect of allowing the amendment would be prejudicial to the second
respondent. In this matter Mr. Jones did not point out any prejudice
which the respondents will suffer if I were to allow the amendment.
Moreover the facts of this matter indicate that in the original
notice of motion, and the founding affidavit the second respondent
was cited as having her place of business at Stadtmitte Shop 3,
Swakopmund. The notice of motion, the certificate of urgency, the
founding affidavit and the confirmatory affidavit were served on a
certain Ms. Rosseau a 'Company Secretary at Daphne Swanepoel
Properties CC' at this address. A notice of intention to defend was
entered on behalf of Ms. Daphne Swanepoel Properties.  The first
respondent in his answering affidavit in fact confirmed that Ms.
Daphne Swanepoel t/a Daphne Swanepoel Properties conducted her
business from Stadtmitte Shop 3, Swakopmund and that she ultimately
received the notice of motion and the founding affidavit. Mr. 
Jones did also not deny that the notice of motion was intended for
Ms. Daphne Swanepoel.  


[27]     
In the matter of
Neon
and Cold Cathode Illuminations (Pty) Ltd v Ephron
[8]
where a defendant had incorrectly been sued as lessee instead of as a
surety for the debts of the lessee, Trollip JA emphasized that what
must be considered is the substance of the process and not merely its
form.  In the matter of
Four
Tower Investments (Pty) Ltd v André's Motors
[9])
Galgut DJP remarked that since
Neon
and Cold Cathode Illuminations (Pty) Ltd v Ephron
,
decisions in the reported cases tend to show that there has been a
gradual move away from an overly formal approach. This development is
to be welcomed because it facilitates the proper ventilation of the
issues and the attainment of justice in a case thereby giving effect
to the spirit of this court’s rules[10].
 In line with this approach courts should therefore be careful
look at the substance of the matter and must not to find prejudice
where none really exists.


[28]     
Galgut DJP[11] cautioned that
the facts of each case are never the same.  He stated that in
some instances the incorrect citation happens to be one of an
otherwise nonexistent
persona,
and because of the well-established rule that a pleading that is a
nullity cannot be amended, the question that has sometimes been posed
in such cases is whether the pleading concerned is as a result a
nullity.  The learned Judge continued and said whether a process
is a nullity or not will depend on the facts of the case, and on the
authorities it seems that it may be a question of the degree to which
the given process is deficient.  He said:


As I see
it, however, the fact on its own that the citation or description of
a party happens to be of a nonexistent entity should not render the
summons a nullity.’


[29]     
In the matter of
Mutsi
v Santam Versekeringsmaatskappy en 'n Ander
[12],
where the defendant was incorrectly cited as Suid-Afrikaanse
Nasionale Trust en Assuransie Maatskappy Beperk. The court held that
because the service of the summons was effected on the correct
defendant it was a mere misdescription of the defendant concerned and
that an amendment would not amount to a substitution of one party for
another.  Similarly in the matter of
Embling
and Another v Two Oceans Aquarium CC
[13]
a similar approach was adopted. In that matter the plaintiffs had
cited the defendant as Two Oceans Aquarium CC suing it as the alleged
owner of an aquarium in which the first plaintiff had fallen and
injured herself, she and the second plaintiff claimed damages. It
turned out, however, that the owner concerned was in fact the Two
Oceans Aquarium Trust. The facts showed that the summons had been
served at the property on a representative of the trust, and that it
was the trust that in fact defended the action. Despite the fact that
the plaintiffs' claims would otherwise be held to have become
prescribed, Van Heerden J granted the application for amendment. In
doing so she rejected the contention that, because the party as cited
had been nonexistent, the summons was a nullity. The learned judge
said:


In my
view, the existence of a cause of action is as much 'a basic
component of an action' as the existence in law and in fact of a
defendant. This being so, an application of the test formulated by
Eksteen JA in the Sentrachem case leads me to the conclusion
that, provided the defendant as described in the amended summons is
clearly recognisable from the original summons, the amendment sought
by the plaintiffs amounts to no more than the 'clarification of a
defective pleading' and not the introduction of a new legal entity as
the defendant.’


[30]     
As I have indicated above the facts of this case are that the notice
of motion and the supporting affidavit was served on Ms Daphne
Swanepoel, Ms Swanepoel opposed the application and an answering
affidavit was deposed to on her behalf. Since the second respondent
as she is described in the amended notice of motion is clearly
recognizable from the original notice of motion I am satisfied that
the original citation of the second respondent as a close corporation
was a mere misdescription or misnomer which could be corrected by the
amendment sought and that the applicant's application for the
amendment must succeed.


[31]     
The respondents also take issue with the non-joinder of Martha
Keeve, for the reason that she is married to the first respondent in
community of property and she is alleged to be a joint co-owner of
the property. Mr. Jones argued that by virtue of her alleged
joint ownership in the property, Mrs. Keeve has a direct and
substantial interest in the issues involved and the order which the
court might make and the applicant was given notice that Mrs. Keeve
is a necessary party who has not been joined the applicant’s
failure to join Mrs. Keeve, is fatal and the application, at the very
least stands to be struck off the roll.


[32]     
The circumstances under which it will be necessary to join a party to
matter were explained by Corbett J, in the matter
United
Watch & Diamond Co (Pty) Ltd and Others v Disa Hotels Ltd and
Another
[14]
where
he said:


'It is settled
law that the right of a defendant to demand the joinder of another
party and the duty of the Court to order such joinder or to ensure
that there is waiver of the right to be joined (and this right and
this duty appear to be co-extensive) are limited to cases of joint
owners
, joint contractors and partners and where
the other party has a direct and substantial interest in the issues
involved and the order which the Court might make
…In Henri
Viljoen (Pty.) Ltd. v. Awerbuch Brothers
, 1953 (2) S.A. 151 (O),
Horwitz, A.J.P. (with whom Van Blerk, J concurred) analysed the
concept of such a direct and substantial interest and after an
exhaustive review of the authorities came to the conclusion that it
connoted (see p. 169) —


"…an
interest in the right which is the subject-matter of the litigation

and…not merely a financial interest which is only an indirect
interest in such litigation. 


[33]     
In this matter, all we are told is that Mrs. Keeve is married in
community of property to the first respondent. No evidence has been
placed before me to prove that fact nor is there a confirmatory
affidavit from Ms Keeve to confirm that allegation. The respondents
did furthermore not place any evidence before me to justify the
conclusion they have arrived at that Ms Keeve is a co-owner of the
property.  Another question is whether Ms. Keeve has a direct
and substantial interest in the subject-matter of this litigation,
that is, the spoliation, or whether her interest is merely a
financial interest that is only indirect and therefore does not
require her joinder. The answer is clear. On the papers before me it
is apparent that Mrs. Keeve is not a party to the lease agreement she
merely consented to her spouse concluding the lease agreement, she
was not involved in the replacement of the locks and the changing of
the alarm codes and alarm frequencies at the property. It is not
clear whether she was even aware that respondents changed the
property’s locks. The interest which Ms. Keeve has in this
matter exists only by virtue of the fact that she and Mr. Keeve are
alleged to be married in community of property (a fact as I said not
proven). I accordingly disagree with Mr. Jones that the circumstances
set out by Corbett J, in the matter of United Watch & Diamond
Co (Pty) Ltd and Others v Disa Hotels Ltd and Another
are
present. I am thus of the view that the first point in limine
must fail.


No
cause of action


[34]     
The second point in limine raised by the respondents is the
alleged failure by the applicant to disclose a cause of action. 
Mr. Jones argued that the applicant’s application is one where
she is attempting to enforce her liens and that she has been unable
to show, prima facie, that she is in fact entitled to exercise
the liens claimed. Mr.  Jacobs on the other hand argued that the
respondents are wrong in that regard.  He submitted that the
only relief that the applicant seeks in her application, is return of
possession.  He further submitted that the applicant does not
seek to enforce her lien.


 


[35]     
My understanding of the notice of motion is that the applicant is
seeking an order directing the first and second respondents to,
immediately and forthwith, restore ante omnia possession of
the property described as: [Erf 4…….], [7……]
[R…….] Avenue, [K…….], [S………],
Namibia, to her.  There is no other remedy, except costs which
the applicant prays for in her notice of motion.  My
understanding of the relief sought in the notice of motion is further
confirmed by the founding affidavit of Ms. Ludik when she states in
paragraph 3 of that affidavit that the purpose of the application is
to:


obtain
return of my peaceful and undisturbed possession of the property
described as [Erf 4……], no. [7………]
[R…..] Avenue, [K…….], [S……..],
Namibia, of which I have been unlawfully deprived by the
respondents.’


[36]     
It is true that the applicant in her supporting affidavit makes
mention of the fact that she is advised that she
has a
lien as
security for her claim to all the improvements to the property paid
for by her.  Where there was prior agreement on the improvements
she has a debtor-creditor
lien,
and where there was no prior agreement, she in any event as the
lessee, has an enrichment and improvement
lien
She further states that her
lien(s)
allow her to remain in possession of
the property until such time as she is reimbursed.  But this in,
my view, does not mean that by this application she is seeking to
enforce her lien(s). In my view the statements by the applicant
relating to her alleged lien(s) are but justification for her not
wanting to part with her possession of the property.


 


[37]     
It is trite that during spoliation proceedings the applicant only has
to prove that he or she was in possession of the thing and that he or
she was illicitly ousted (despoiled) from such possession. In this
matter the applicant does allege that she moved onto the property
shortly after the 15
th
of July 2014 and remained in possession of the property ever since
that date. She further alleges that on the afternoon of 4 November
2015 the second respondent instructed a security company to change
the locks and remote frequency to the property thereby depriving her
of the uninterrupted, peaceful and undisturbed possession she has had
to the property. If these allegations by the applicant are found to
be true she will succeed in the relief she is seeking and I am
therefore satisfied that she has set out a cause of action for the
relief she is seeking and the respondents’ second point
in
limine
must equally fail.


The
legal principles applicable to
mandament van spolie


[38]     
Having found that, the relief which the applicant seeks is an order
directing the first and second respondents to restore to her the
property described as [Erf 4………], No. 76 [R……]
Avenue, [K…….], [S…….], Namibia, I will
briefly deal with the legal principles applicable to the relief
claimed.


[39]     
The applicant’s application to restore her possessory status
quo
ante
is based on the principle:
spoliatus
ante omnia restituendus est
.
In the matter of
Greyling
v Estate Pretorius
[15].'
Price J explained the principle as follows:


When
people commit acts of spoliation by taking the law into their own
hands, they must not be disappointed if they find that Courts of law
take a serious view of their conduct. The principle of law is:
Spoliatus ante omnia restituendus est. If this principle means
anything it means that before the Court will allow any enquiry into
the ultimate rights of the parties the property which is the subject
of the act of spoliation must be restored, to the person from whom it
was taken, irrespective of the question as to who is in law entitled
to be in possession of such property. The reason for this very
drastic and firm rule is plain and obvious. The general maintenance
of law and order is of infinitely greater importance than mere rights
of particular individuals to recover possession of their property.’


[40]     
Maritz JA[16] said that the
principle, which may share some characteristics with the various
possessory remedies available under Roman law, is rooted in canon law
and was later subsumed and developed in our common law as the
mandament
van spolie
.
He continued and said that the mandament, it was held, may be granted
-


if the
claimant has been unlawfully deprived of the possession of a thing.
It does not avail the spoliator to assert that he is entitled to be
in possession by virtue of, e.g., ownership, and that the claimant
has no title thereto. This is so because the philosophy underlying
the law of spoliation is that no man should be allowed to take the
law into his own hands, and that conduct conducive to a breach of the
peace should be discouraged’.


[41]     
Viviers J[17] said that the
remedy of
mandament
van spolie

is aimed at every unlawful and involuntary loss of possession by any
possessor, and its object is no more than the restoration of the
status
quo
ante

as a preliminary to any inquiry or investigation into the merits of
the respective claims of the parties to the thing in question. In
this regard, Greenberg JA noted in the matter of
Nienaber
v Stuckey

[18] that
:


'(a)lthough a
spoliation order does not decide what, apart from possession, the
rights of the parties to the property spoliated were before the act
of spoliation and merely orders that the status quo be
restored, it is to that extent a final order'.


[42]     
One of the essential constituent elements of the mandament which a
spoliatus
is required to so establish on the evidence is that he or she had
been 'in possession' of the thing when spoliation occurred.  In
the matter of
Kuiiri
and Another v Kandjoze and Others
[19]
Parker
J said that possession is an amalgam of a physical situation (i.e.
the physical detention of a corporeal thing by a person) and a mental
state (i.e. the intention of holding the thing as that person's own).
In
Ness
and Another v Greef
[20]
Viviers J stated that the words 'peaceful and undisturbed possession'
probably mean sufficiently stable or durable possession for the law
to take cognisance of it.


[43]     
From the authorities it is clear that an applicant for a spoliation
order bears the burden to prove the facts (namely 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) necessary for the
success of the application on a balance of probabilities. In sum, in
the present application the applicant must, on a balance of
probabilities, prove that, at the time she claims that she was
unlawfully ousted, she was in possession of a kind which warrants the
protection accorded by the remedy. Keeping the foregoing principles
and requirements in mind, I proceed to apply them to the facts of
this case, as I have found them to exist.


The
application of the legal principles to the facts
.


[44]     
It is indisputable that the applicant took occupation of the property
after 15 July 2014 and remained in occupation of that property until
at least 31 October 2015. The respondents further admit that after 31
October 2015 the applicant did not hand over the keys and the remote
controls to the property over to them. The respondents do admit that
by 4 November 2015 they could not gain access to the property because
the keys to the doors of the property and the remote controls to the
garage doors of the property were still in the possession of the
applicant. The respondents do not deny the fact that on 4 November
2015 they instructed a security company to change the locks at the
property and to change the alarm and remote control frequencies at
the property so that that they could gain access to the property.
They also do not deny that by changing locks and the remote control
frequencies to the property they in effect denied the applicant
access to the property.


[45]     
The respondents’ contention is that as on 31 October 2015 the
applicant was no longer in possession of the property and their acts
of changing the locks and the remote control frequencies do therefore
not amount to illicitly depriving the applicant of the possession of
the property. Mr Jones puts it as follows in his heads of arguments.





At
the outset, I submit that on the facts, the applicant was not in
possession of the property and neither was she unlawfully deprived of
possession.


 


It
is from this premise that I depart and as a result the following
salient facts appear from the papers: The applicant remained in
possession of the property after 31 July 2015.


On
28 October 2015 the applicant informed respondent that she was no
longer interested in remaining in the property and that she was busy
moving out and that she would vacate the property before the end of
October 2015.


On
28 October 2015 the applicant sends an email to the respondent
informing him
inter alia
that she was busy packing and would be out of the property by the
next week.  She further wanted to know to whom she should return
the keys to and who would come and do the inspection of the property.


The
lease between the parties terminated on 31 October 2015.


The
applicant moved out prior to this and never made or tendered payment
of the rent of 1 November 2015.


The
applicant also caused to have the municipal services and the
electricity services which are supplied by Erongo RED disconnected.


Having
moved out of the property, removing all of her possessions and
disconnecting the water and electricity services the applicant only
needed to attend the inspection of the property and hand over the
keys.


It
was only on 3 November 2015 and after the applicant became aware
(upon the purported advice of her legal practitioners) that she could
retain possession of the property in order to enforce a lien.’


[46]
I do not agree with Mr Jones. Firstly the electronic mail send by the
applicant to first respondent does not state that the applicant will
vacate the property on 31 October 2015, what the applicant stated is
that she expects to be out of the property by ‘next
week’
. If one has regard to the fact that 28 October
2015 was a Wednesday, ‘next week’ could mean any day
between Sunday 1 November 2015 and Saturday 8 November 2015. The
allegation that the applicant lost possession on 31 October 2015 is
therefore not supported by the evidence.


 


[47]
Secondly Maritz JA[21]
approved the emphasis by Coetzee J[22]
that -


 


'(o)n
termination of a lease the lessee's right to the use and enjoyment of
the property ceases absolutely and he is bound to restore the
property to the lessor'.


The
question therefore is whether in this matter the applicant restored
the property to the respondents.  The restoration normally and
generally takes place with the handing over of the keys to the
building to the owner. The handing over of the keys to a building is
not only an important symbolic act of delivery but, it also
constitutes an act of 'transferring' possession of and control over
the building and its contents to the receiver. In the matter of
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[23]
Thring J considered the authorities regarding the handing over keys
and said the following:


 


'(1)
There is no particular magic in the possession of keys to a building
as a manifestation of possession of the building; as a mere symbol
their possession alone will not per se necessarily suffice to
constitute possession of the building; to have that effect they must
render the building subject to the immediate power and control of the
possessor of the keys: they must be the means by which the latter ‘is
enabled to have access to and retain control of the building’
...


(2)
To be effective in conferring possession of the building on or
retaining it for the possessor of the keys, the keys must have the
effect of enabling their possessor to deal with the building as he
likes (in the sense of affording him access thereto) to the exclusion
of others (
Scholtz v Faifer
(supra) at 247); after all, that is the primary purpose which locks
and keys are designed to achieve.


(3)
Where, as here, possession of the building is sought to be retained
adversely to its owner, possession of the keys must, subject to what
follows, have the effect of excluding the owner, in the sense of
precluding him from exercising the right of possession which an owner
of property usually enjoys (
Liquidators
of Royal Hotel Co v Rutherford
(supra)
at 181 and
Scholtz v Faifer
(supra) at 246). '


In
this matter the applicant, was contractually obliged to restore the
leased premises to the first respondent upon termination of the
lease. She did not do so. It follows that the fact that the applicant
vacated the property does not mean that she lost possession of the
property.  Maritz JA puts it as follows:


Possession
of an immovable thing may, of course, be lost for a number of
reasons.  Whether the possessor's physical absence from the
immovable thing or the nature and extent of the use, occupation or
control thereof by another party justifies the inference that the
physical and/or mental requirements necessary to sustain possession
are no longer present, must be determined with regard to the
circumstances of each case.’


[48]
Thirdly for the respondents to allege that the applicant lost control
of the property they had to prove that that the applicant lost the
physical control or the mental element which is required to
constitute possession. The respondents would then have to establish
that they acquired possession of the property acquiring both the
physical control (i.e. the physical detention of a corporeal thing)
and a mental state (i.e. the intention of holding the thing as that
person's own) of the property.


[49]
In the present matter the respondents simply rely on the electronic
mail of 28 October 2015
as an expression of
the fact that the applicant allegedly no longer had the intention of
remaining in possession of the property after 31 October 2015. The
reliance on the electronic mail is, in my view misconceived. I say so
for the following reason, in the electronic mail of 28 October 2015
the applicant does not unequivocally state that she intends to hand
over possession of the property to the respondent. In the electronic
mail the applicant makes it a clear that her vacation of the property
and the handing over of the keys are linked to first respondent
reimbursing her for the improvements she has effected to the
property. I therefore find that the respondent has failed to prove
that the applicant lost possession of the property. The respondents
did not go to court when they changed the locks and the frequencies
of the remote controls to the property they resorted to self-help and
this is what the remedy of
mandament van
spolie
aims to prohibit. I therefore
find that the applicant has discharged the onus resting upon her and
has proven that she was in peaceful and undisturbed possession of the
property on 4 November 2015 when the respondents resorted to
self-help and changed the locks and alarm frequencies to the
property.


[50]
In his submission, Mr Jacobs pressed me into ordering costs in favour
of the applicant, including costs of an instructing and instructed
counsel. Mr Jones conceded that the cost must follow the course and
the costs of one instructing and instructed counsel. I therefore, in
my discretion costs must follow the course.


[51]
In the result I make the following order:


1            
The non-compliance with the rules of this
court and hearing the application on an urgent basis as is envisaged
in rule 73(3) of the High Court Rules is condoned.


2            
The application for the amendment of the
notice of motion
for the substitution of Daphne Swanepoel
Properties CC”
with “Daphne Swanepoel trading as
Daphne Swanepoel Properties”
as the second respondent is
granted.


3            
The first and second respondents are
ordered to forthwith restore the applicant's peaceful and undisturbed
possession
ante omnia
in and to
the property described as: [Erf 4……],
[7……] [R…….] Avenue, [K…….],
[S………], Namibia, to the applicant.


4            
The first and second respondents, jointly
and severally, the one paying the other to be absolved, are ordered
to pay applicant's costs, such costs are to include the costs of one
instructing and one instructed counsel.


SFI
Ueitele


Judge


APPEARANCES


APPLICANT:
S J Jacobs


Instructed
by Delport Nederlof Attorneys





RESPONDENTS:
JPR Jones


Instructed
by Petherbridge Law Chambers



[1]
2012
(5) SA 542 (GSJ).




[2]
1935
TPD 56.




[3]
Erasmus,
Breitenbach, Van Loggerenberg and Fichardt
Superior
Court Practice

(1994, with loose-leaf updates) at B1 – 178; Herbstein and Van
Winsen
Civil
Practice of the Supreme Court of South Africa

4th ed (1997) by Van Winsen, Cilliers and Loots (edited by Dendy) at
515 and the other authorities there cited
.




[4]
See
Meyer
v Deputy Sheriff, Windhoek and Others
1999
NR 146 (HC).




[5]
See
Cross
v Ferreira

1950 (3) SA 443 (C) at 447.




[6]
See
Trans-Drakensberg
Bank Ltd (under Judicial Management) v Combined Engineering (Pty)
Ltd and Another

1967 (3) SA 632 (D) at 637A - 641C and
Devonia
Shipping Ltd v MV Luis (Yeoman Shipping Co Ltd Intervening)

1994 (2) SA 363 (C) at 369F - I).




[7]
Krogman
v Van Reenen

1926
OPD 191 at 194 – 5.




[8]
1978
(1) SA 463 (A) at 470F - 471C.




[9]
2005
(3) SA 39 (N).




[10]
Rule 1(3) of  this Court’s Rules  amongst 
other  things provide that: ‘The overriding objective of
these rules is to facilitate the resolution of the real issues in
dispute justly and speedily, efficiently and cost effectively as far
as practicable …’.




[11]
Supra
footnote 9 at 45.




[12]
1963
(3) SA 11 (O).




[13]
2000
(3) SA 691 (C).




[14]
1972
(4) SA 409 (C) at 415E – H.




[15]
1947(3)
SA 514 (W) at 516 at 517A.




[16]
In
the matter of
Kuiiri
and Another v Kandjoze and Others

2009 (2) NR 447 (SC) at 461.




[17]
In
the matter of
Ness
and Another v Greef

1985
(4) SA 641 (C) at 647B-C.




[18]
1946
AD 1049 at 1053.




[19]
2007
(2) NR 749 (HC).




[20]
Supra
footnote
17 at 647D.




[21]
In
the
Kuiiri
v Kandjoze

(footnote 11) appeal matter.




[22]
In
the matter of
De
Beer v First Investments Ltd
1980
(3) SA 1087 (W) at 1092H.




[23]
2007
(2) SA 128 (C) at 134G-135A