Court name
Supreme Court
Case name
Kuiiri and Another v Kandjoze and Others
Media neutral citation
[2009] NASC 15





REPORTABLE






























REPORTABLE



CASE
No. SA 42/2007



















IN
THE SUPREME COURT OF NAMIBIA








In
the matter between
















JOSEPH
FRANS KUIIRI





ANGELIKA
KUIIRI



FIRST
APPELLANT





SECOND
APPELLANT









and
















OBETH
MBUYIPAHA KANDJOZE





KAHOO
FRIEDA KANDJOZE





SHAFIMANA
UEITELE



FIRST
RESPONDENT





SECOND
RESPONDENT





THIRD
RESPONDENT












Coram:
Maritz,
JA, Chomba, AJA, et Mtambanengwe, AJA






Heard
on: 09/10/2008





Delivered
on: 03/11/2009










APPEAL JUDGMENT










MTAMBANENGWE, AJA:




  1. On the return day thereof the High
    Court (Parker J) discharged with costs the
    rule
    nisi
    granted in favour of
    the appellant’s in this matter on 9 November 2006. The
    rule
    nisi
    reads:








IT
IS ORDERED:







1. …








  1. That
    a
    Rule
    Nisi
    do
    hereby issue calling upon the respondent to show cause, if any, on
    Monday, 20 November 2006
    ,
    at
    10.00 a.m. why, pending the outcome of this application, the
    following orders should not be made:










    1. Ordering
      first and second respondents to forthwith restore the possession of
      the premises known as KANAINDO BOTTLE STORE AND BAR to applicants
      and authorizing the applicants to remove any locks that prevent
      such restoration.











    1. Ordering
      first and second respondents to forthwith return all the fridges,
      tables, chairs, beds, bedding, clothing, cutlery, crockery and any
      other movable items removed from the said premises.











    1. Authorizing
      the messenger of the court for the district of Gobabis,
      alternatively, the station commander of the Namibian Police at
      Buitepos, to remove first and second respondents, and anyone else
      occupying it, from the said premises.











    1. Interdicting
      the first and second respondents from in any way interfering with
      applicants’ possession or any other rights in respect of the
      said premises.











    1. Ordering
      third respondent to pay the applicants’ costs
      de
      bonis propriis
      on
      an attorney and own client scale, alternatively ordering first and
      second respondents to pay applicants’ costs on an attorney
      and own client scale.










  1. The
    orders in terms of sub-paragraphs 2.1, 2.2, 2.3 and 2.4 of this
    rule
    nisi
    shall
    serve as an interim interdict with immediate effect.”









  1. The third respondent is first and
    second respondent’s legal representative. The cost order
    against him was sought on the allegation that he advised first and
    second respondents to take whatever actions they took against the
    appellants contrary to or against the warning that those actions
    were unlawful. For convenience, I shall refer in the rest of this
    judgment only to first and second respondents as “respondents”
    and deal with the relief claimed against third respondent when I
    come to deal with the question of costs.









  1. The founding affidavit in the
    application before the court
    a
    quo
    was sworn to by first
    appellant. In it he states that he and the second appellant (his
    wife) are married in community of property; that they reside at Plot
    Nuwe Hoop, number 114, Gobabis; that respondents are married in
    community of property and reside at Farm Sandfontein No. 468 Gobabis
    which is currently registered in their names (the farm).









  1. The appellants dispute the legality
    of respondents’ ownership of the farm, alleging that they were
    party to a fraud that led to their acquisition of ownership thereof,
    alternatively that they bought the farm from Bulk Trade (Pty) Ltd
    with the knowledge that appellants were disputing the latter’s
    ownership thereof.









  1. The dispute about ownership of the
    farm is the subject of a pending trial action in the High Court. In
    regard to that dispute it is, therefore, relevant only to mention
    that in the course thereof the appellants were evicted from the farm
    by the respondents and that, although the eviction order was
    subsequently set aside, the appellants allege that they have been
    prevented from regaining possession of the farm by the respondents.









  1. The bone of contention between the
    parties is the portion of the farm on which the buildings of a
    business called the Kanaindo Bottle Store and Bar are situated (the
    premises). The appellants allege that they built the bottle store
    and restaurant on that portion of their farm in 1994; that they
    always occupied and operated these premises as a separate entity;
    that the said premises never formed part of the sale of the farm to
    Bulk Trade (Pty) Ltd and that the premises were never transferred to
    Bulk Trade (Pty) Ltd: their intentions had been to subdivide the
    premises from the farm and, to that end, they had obtained a
    separate appraisal thereof as worth N$251,500.00. The said
    appraisal was annexed to the founding affidavit.









  1. A letter written by respondents’
    legal practitioner to appellants’ legal practitioners on 31
    st
    January 2006 explicitly shows what the dispute is all about:








RE:
FARM SANDFONTEIN NO.468, KUIRI // OBETH KANDJOZE







We
refer to the above-captioned matter.







As
you are well aware Farm, Sandfontein No.468, Omaheke Region, is
currently registered under the name of Mr. & Mrs. Obeth and
Frieda Kandjoze. You are equally aware that a legal dispute is
raging between Mr. Kandjoze and Mr. Kuiri over the ownership of the
said Farm.







We
now hold instructions from our client that, your clients, in
particular Ms. Angelica Kuiri is renting out a portion of the Farm
which she used to occupy, and that she draws financial benefits from
such rent.







We
further hold instructions to inform your client that Farm Sandfontein
is currently registered in our client’s name and is thus the
property of our client until the High Court of Namibia decides
otherwise.







We
furthermore hold instructions to demand from your client (Ms.
Angelica Kuiri) as we hereby demand that she forthwith terminate the
Lease Agreement between herself, and the Lessee, Mr. Uno Hengari,
and
vacate the portion of the Farm which she now occupies
,
alternatively our client demand that the proceeds of the
Lease
in respect of the portion of Farm Sandfontein No.468
,
be paid into an interest bearing trust account, pending the outcome
of the resolution of the Legal Dispute between the parties.”
(the underlining is mine)








  1. That letter would appear to form the
    basis of the following further allegations by the appellants:




(a) that after they had lost
possession of the farm, they transferred most of their (movable)
property from the farmstead to the premises;







(b) that at all material times second
appellant conducted the business of a bar, bottle store and
restaurant on the premises;








  1. that in December 2005 second
    appellant entered into a lease agreement in respect of the premises
    with one Uno Hengari for a rental of N$1,500,00 per month plus
    N$1,500,00 per month for electricity supplied by NamPower with which
    appellants had a supply agreement;









  1. that the lease agreement with Hengari
    was terminated after respondents, accompanied by their legal
    representative, had gone to the premises and demanded that he should
    vacate the premises or make payment of the rental direct to them;









  1. that,
    on 16 September 2006, the first respondent went to the premises and
    broke the lock to the property, replaced it with his own and left a
    message with one of his workers that appellants
    should
    remove all their property on the premises

    because he intended to take occupation of the premises.








These allegations and others led to
the essential allegation that appellants always maintained an
undisturbed possession of the said premises. The allegations are
disputed by the respondents.







[9] On 9 August 2006 respondents’
legal practitioner also wrote to the lessee of the premises, Uno
Hengari, stating that he was leasing a portion of the farm from the
second appellant and that the latter had no right to lease out that
portion of the farm as she was not the owner of that piece of land.
I will return to consider these letters in conjunction with other
correspondence between the parties’ legal practitioners when I
come to consider the court
a
quo’s
assessment of
the correspondence as a whole.







[10] The grounds of the appeal noted
on behalf of appellants are stated by counsel for the appellants in
his heads of argument as that:







The
appellants contend that the judge
a
quo
erred
or misdirected himself, amongst others:









    1. In
      finding that appellants did not prove they were in possession of
      the premises containing Kanaindo Bottle Store and Bar and that they
      were not illicitly deprived of possession by first and second
      respondents;











    1. In
      formulating the test for possession in respect of
      mandament
      van spolie
      and
      applying it to the facts in this matter;











    1. By
      finding that the letters exchanged between the parties’ legal
      practitioners do not bear out an acknowledgment that appellants
      were at all material times in possession of the premises;











    1. By
      ignoring, or not properly taking cognizance of, facts –
      especially deposed to in appellants’ replying affidavits –
      that clearly show possession of the premises, at all material
      times, by appellants; and











    1. Alternatively,
      by not referring the issue of possession to evidence.”









[11] The leaned Judge a
quo
concluded that “the
applicants have failed, on a balance of probabilities, to discharge
the onus that they were in peaceful and undisturbed possession of the
bottle store – possession that was sufficiently established,
stable and durable – and that they have been illicitly deprived
of possession of the bottle store by the respondents”. The
learned Judge came to this conclusion after considering “the
letters exchanged between third respondent and applicants’
legal practitioners” which letters he described as “an
extremely flimsy strand on which to hang an application for a
spoliation order without breaking” (sic). In the process he
rejected Mr. Coleman’s submission, on appellants’ behalf,
that there was no substance in the respondents’ argument that
the applicants had “lost possession when they leased the bottle
store to others”.







[12] The other finding by the learned
Judge
a quo, adverse
to appellants, was that “the applicants have failed to prove
when they claim that their ‘previous possession’ was
dispossessed (sic) by the respondents”. This finding, it
appears, did not form part of the conclusion he reached; that
apparently explains why Mr. Coleman did not mention it in stating the
grounds of appeal as above quoted. But it was clearly one of the
“above considerations and reasoning” that propelled the
learned judge to his conclusions, and this Court must deal with it.







[13] Before I turn to consider the
findings that led the learned Judge
a
quo
to discharge the rule
nisi
,
I must acknowledge that
most of his exposition of the principles applicable in considering an
application for a spoliation order cannot be faulted. It would
therefore be superfluous to repeat those principles in this Judgment.
Suffice it to say that the learned Judge rightly emphasized that.







The
central principle of the remedy is simply that no person is allowed
to take the law into his or her own hands and thereby cause a breach
of the peace.
The
remedy is aimed at every unlawful and involuntary loss of possession
by a possessor. Its single object is the restoration of the
status
quo ante

as a prelude to any inquiry into the merits of the respective claims
of the parties to the thing in question”.







He referred in this connection to Ness
and Another v Greef,
1985(4)
SA 641 (C). He also correctly concluded that “in the present
case, the justice or injustice of the applicants’ possession
is, therefore, irrelevant”







I, however, have a problem with his
application of the principles to the facts of this matter; and I
therefore turn to consider this problem.







[14] The learned Judge a
quo
directed his attention
to the letters “exchanged between the third respondent and
applicants’ legal practitioners” and found-







(a) them “an extremely flimsy
strand on which to hang an application for a spoliation order without
breaking”







(b) that they dwelt primarily on, or
dealt substantially “with ownership of farm Sandfontein.”







Before he turned to consider the
letters the learned Judge
a
quo
had dealt with the
dispute as to when appellants left the farm. The dispute included
the denial by respondents that “the applicants had possession
of the bottle store after January 2004” and respondents’
assertion that “the applicants of their own volition ‘finally
moved from the Farm Sandfontein in approximately December 2004 with
all their belongings’”; the Court went on to say.







If
the applicants left Farm Sandfontein in December 2004 “with all
their belongings,” the applicants could not have been in
possession of the bottle store
after
that
date since the bottle store is situated on Farm Sandfontein, and
since the respondents took possession of Farm Sandfontein from that
time.

(my emphasis)







The fallacy involved in the quoted
passage
, in
my view, arises,
inter alia,
from what appears to be the learned judge
a
quo’s
wrong
interpretation or superficial reading of the letters.







[15] As regards the letters it is not
clear what the learned Judge
a
quo
meant when he said the
following about them in his judgment.







Considering
the letters
contextually
and purposely and not parochially
,
it seems to me clear that the question of ownership was uppermost in
the mind of the third respondent, even if it can be said that the
concern of the applicants’ legal practitioners was possession –
even that comes through only in their last two letters as I have said
above. That being the case, I cannot see how, with respect, one can
stand on those letters and argue seriously that the respondents
considered the applicants to be in possession of the bottle store.”
(my emphasis)







If “contextually” refers
to all the letters “exchanged between the third respondent and
the applicants’ legal practitioners, it seems to me that the
concern in all the letters is the portion of the farm on which the
bottle store is situated and related to both ownership and possession
thereof. Third respondent’s letter of 16 May 2006 states in
paragraph 3 thereof:







In
light of what we have stated above, we still maintain
the
portion of the land on which the bottle store is situated

is part of our clients farm and that your client must immediately
terminate the lease agreement between herself and Mr. Uno Hengari.”







Paragraph 4 of third respondent’s
letter of 16 October 2006, states:







We
furthermore advice that we hold instruction to inform you that our
client shall, not relinquish any part of his Farm (not even an inch)
unless so ordered by Court, or unless you provide us with proof that
the
portion of land in dispute

(not portion 6 or 7) are indeed your clients property. Kindly
advice
your clients to stay away from our clients property …..”
(sic) (my underlining)







In paragraph 3 of the letter addressed
by appellants’ legal practitioners to third respondent on 15
September 2006 it is stated:







We
are instructed that your client have (sic) attended at the portion
currently occupied by our client, demanding that our client vacates
the premises …..We are instructed that our client shall not
vacate the portion occupied, unless by a Court order, lawfully
granted to your client.







Again, a further letter by appellants’
legal practitioners to third respondent on 29 September 2006, talks
of
the “portion(s) of
land under discussion,” and

says that third respondents’ clients “
have
no right to enter the land or occupy it”
.
Thus the “last two letters” to third respondent (i.e.
those dated 16 and 31 October 2006 respectively) are not the only
ones directly referring to possession of the premises – as the
judgment seems to suggest. The last two letters merely put the whole
series of letters into proper context when e.g. the one dated 31
October 2006 states:







We
advise that our clients indeed attended to the removal of your
client’s locks on the property as advised by us. Subsequently
thereto, your clients again entered in upon the premises and replaced
our client’s locks. Moreover, and on the 14th of October 2006,
your client entered upon the premises and removed most of our
client’s property out of the premises and left the property
outside. We assume that your client is acting on your advice.”







Significantly, there is no denial of
these allegations in the respondents’ reply thereto on 16
October 2006.







[16] Lastly there is a letter
addressed by third respondent to Messrs. Kempton & Scholtz - who
was apparently also acting as second appellant’s legal
practitioners - dated 30
th
August 2006. It reads:







RE:
OCCUPATION OF FARM SANDFONTEIN: UNO HENGARI







We
acknowledge receipt of your letter dated 9th August 2006.







We
hold instructions to inform you that, as long as back as May 2006, we
informed your client that the portion of the Farm on which the bottle
store is situated forms part of Farm Sandfontein. And the Farm is
under occupation and control of our client. We challenge you to
provide us with a copy of the Title Deed for the portion on which the
bottle store is situated.







Since
your client was given notice as early as January 2006 (see copies of
the attach) (sic) a letter to vacate the portion of the land on which
the bottle store is situated, and in light of what we have stated in
the foregoing paragraphs, we herby inform you that our client has
taken occupation of the bottle store and will henceforth deal with it
in that manner. Our client has also taken a lien over all the
property which is on the portion of the land on which the bottle
store is situated, pending your client paying fair and reasonable
rent to our client for the period 01 February 2006 to 31 August 2006.







We
hereby furthermore inform you that our client will now formalize the
lease agreement between himself and Mr. Uno Hengari and Mr. Uno
Hengari will henceforth proceed to lease and occupy that portion of
the Farm.” (my emphasis)







[17] There is some denial of the
allegations of spoliation, but as Mr. Coleman for the appellants
rightly said, the denials are untenable in light of the Deputy
Sheriff’s return of service in the execution of the rule
nisi
and interim interdict issued by the Court. It lists the property so
removed: It reads:







RETURN
OF SERVICE



The
undersigned, ANDRIES JOHANNES FREDERIK PRETORIUS, do hereby certify
that I have on this 6th day of Sec. 2006, at 15H00, duly served the
attached, RULE NISI, of the above-named First Defendant, Obeth
Mbuyipaha Kandjoze and Second Defendant, Kahoo Frieda witness
Kandjoze, on the First Defendant, Obeth Mbuyipaha Kandjoze, by
exhibiting to him on the Farm Sandfontein, No. 468, Gobabis, the
original document, at the same time handing personally a true copy
thereof and explaining to him the nature and contents thereof.
Attachment: 1 x Pool Table, 1 x Sofa, 1 x Wardrobe & 9 x chairs.



Handed
property over to Mr. Tjeripo, at Kanaindo Bottle Store and Bar,
Gobabis. Mr. Obeth Mbuyipaha Kandjoze refused to hand over the two
Coca Cola Freezers.







Dated
at Gobabis on this 6th day of Dec. 2006.











TEMPORARY
DEPUTY SHERIFF (GOBABIS)”







[18] I believe that the wider, and not
parochial, context in which the letters are to be read, as
confirmation of appellants being in possession after January 2004, of
the bottle store, would include not only the Deputy Sheriff’s
return of service (which shows, contrary to respondents’ claim
that applicants left the farm in December 2004
with
all their belongings,
that
their belongings were still in the bottle store) but also the fact
that respondents waited from 2004 till 2006 before they suddenly
started asserting a claim to the premises.







[19] Lastly, my analysis of the
letters, and a reading thereof in the above context, shows that they
essentially dealt with or dwelt on the question of possession by the
respondents of the bottle store or that portion of the farm occupied
by the bottle store, and not on or with Sandfontein Farm No. 468 as
such.







[20] The court a
quo
rejected the claim by
appellants that they were disposed of the bottle store by the
respondents. The court did so when it considered what it termed “the
central planks which in their view constitute pieces of evidence that
evince possession.” Emphasising that “the time at which
an applicant claims he or she was unlawfully disposed by the
respondent is crucial in spoliation proceedings” the court went
on to find that the appellants had failed to prove when they claimed
they were dispossessed of the bottle store by the respondent”.
It said further that “there
must
be a date
on which the
alleged spoliation occurred.” It rejected Mr. Coleman’s
submission that there was a series of spoliation and counter
spoliation.







[21] As regards the Court a
quo’s
reasoning, I
note first of all that the evidence on the affidavits indeed shows
that there was a series of acts of spoliation and counter spoliation.
Secondly, apart from saying that he took occupation of the premises
on 31
st
August 2006 the first respondent also gives a specific date –
1
st
September 2006 when, he admitted, his servant, one Gideon Kandimuine
put a padlock on the door of the restaurant. Most importantly, as
already said above, there was no denial of the allegations contained
in the letter annexure “JK12” to the founding affidavit.
With respect, in my opinion, to hold appellants’ failure, if
that is so, to mention a specific date against them on which the
spoliation occurred, was a misdirection on the part of the Court.







[22] It remains to say that
respondents did not go to Court when they acted as alleged against
the appellants in connection with the bottle store, they resorted to
self help. Mr. Coleman was quite correct to say, in the grounds of
appeal, that “the judge
a
quo
erred or misdirected
himself” by ignoring or not properly taking cognisance of facts
especially those deposed to in the appellants’ replying
affidavit.







[23] If I should find that appellants
were in possession of the disputed premises, the affidavits in this
case (of both parties) clearly reveal that acts of spoliation by
respondents and counter spoliation by the appellants took place up
until 31
st
October 2006. The principles applicable to counter –
spoliation were recently dealt with by this Court at paragraphs [48]
– [54] in
The Three
Musketeers (Pty) Ltd and Another v

Ongopolo Mining and
Processing Ltd and Others

(unreported, delivered on 28/10/2008. In that case, as in this case,
various acts of spoliation and counter-spoliation occurred, all
taking place on different dates. What matters, in my opinion, is
that the claimant was in possession at any of the different days
involved.







[24] Almost in the same breath as it
dismissed appellant’s claim that they were dispossessed of the
bottle store by the respondents, the court
a
quo
described the claim
that “at all material times hereto” second appellant
conducted the business of the bar bottle store and a restaurant in
the bottle store. It described the term “at all material
times” as a ‘legalese’ cliché” and as
“too amorphous meaningless and purposeless in spoliation
proceedings to show when applicants claim they were in peaceful and
undisturbed possession of the bottle store and also to show when an
act of spoliation was committed by the respondents”. I accept
that the phrase “at all material times” under certain
circumstances may properly be described in the terms used by the
Judge
a quo. But,
with great respect, and without indulging in semantics, it is my
opinion that the learned Judge
a
quo
completely missed the
nuance in the phrase as used by the appellant “at all material
times
hereto”,
and did not properly consider the particular circumstances of this
case. The circumstances in this case before the court below included
the following –







(a) that the time frame involved in
the dispute about the portion in dispute was between December 2004
and October 2006,







(b) that there is no allegation by
respondents that appellants, in particular second appellant, returned
to occupy and do business in the disputed premises after December
2004. Yet in the letters he admits that second appellant was in
occupation after that date,









    1. that respondents in so many words
      accepted at the time that second appellant occupied the disputed
      premises,











    1. that implicit in the argument by the
      respondents that appellants lost possession when they leased the
      premises to others i.e. from December 2004 to December 2005 the
      date of the first leasing i.e. to Uno Hengari, is an admission that
      second appellant was in possession of the disputed portion of the
      farm after December 2004. and











    1. that the affidavit of first
      respondent clearly shows a vacillation as to whether appellants
      left with all
      or
      some
      of their property, that they left with all their property is belied
      by the Deputy Sheriff’s return of service: the fridges tables
      etc that were in the premises were left by appellants as they
      alleged and which fact first respondent purports to deny.









All these circumstances or facts
clearly fix the time frame encompassed by the phrase “at all
material times hereto.” In these circumstances there is
nothing amorphous, meaningless or purposeless about the phrase “at
all material times hereto”, nor, to my mind, is the phrase used
as a mere ‘legalese cliché”







[25] The Court a
quo
said in paragraph [18]
of its Judgment that the applicants had not put forth any credible
evidence in support of their contention that they conducted the
business of the bar and restaurant in the bottle store, obviously
relying mainly on the fact that the only liquor licence produced
covered the period 16 March 2006 to 31 March 2007. Soon thereafter,
in paragraph [19], the Court then stated:







Besides
in December 2005 – 31 August 2006, i.e. more than a half of the
licence period, the bottle store was leased to Hengari; for about six
months in 2005 it was leased to Guim; and for almost three months in
2005 it was leased to Kapenda. The liquor licence filed of record
does not say Hengari was a manager for the licenced business
appointed by 2nd applicant for the licenced period, which second
applicant qua licensee could have done lawfully in terms of s. 18 of
the Liquor Act, 1998 (Act No. 6 of 1998). Neither have the
applicants shown the Hengari, Guim and Kapenda were their agents or
representatives. With the greatest deference, I cannot accept Mr.
Coleman’s submission that there is no substance in the
respondent’s (sic) argument that the applicants lost possession
when they leased the bottle store to others. Being leasees (sic),
Hengari, Guim and Kapenda were, in law, in possession of the bottle
store during the periods that their leases subsisted. They were in
physical occupation of the bottle store and they had the necessary
intention to hold it as their own and to derive some benefit from it
for themselves (Badenhorst, et al, supra, at pp 254-5,: p. 406)
Particularly, in Hengari’s case, as lessee of the bottle store,
he further sublet part of the premises to Uvangapi Matirua and Tangee
Mbasuwa for the payment of rent to him”







[26] Uno Hengari’s affidavit in
support of respondents’ case states, in part:



I
specifically want to state the following:



During
December 2005, the second applicant and I concluded a lease agreement
in respect of a Bottle store situated on Farm Sandfontein No. 468
Omaheke Region. When we concluded the lease agreement the second
applicant brought me under the impression that first and second
applicants were the owners of the Bottle-store.”







[27] Obviously the one licence that
was produced by the applicants was the current

licence
; if the Court a
quo
was implying that Uno
Hengari and the other lessees had operated the bottle store without a
liquor licence, then that was not the case for the respondents, nor
can that be inferred from their affidavits. It is trite that the
court cannot make out a case for the parties, or draw adverse
inferences against a party without the necessary facts or on facts
that are clearly incomplete, thereby purporting to fill gaps in the
evidence.







[28] The
crucial finding that appellants lost possession when they leased the
premises to others.







In accepting that argument by the
respondents the court referred to
pp
254-5 and p 406 of Silberberg and Schoeman’s The Law of
Property 4
th
ed (Badenhorst, et al).
I
have scanned the relevant pages but I must confess my failure to find
anything therein that supports that proposition or can be distilled
as support thereof. What appears on p 254 is:







12.2 Right
of possession and the intention to control a thing



The
right of possession is often referred to as the ius possessionis and
must be distinguished from the so-called ius possidendi, the
entitlement to demand control over a thing19. The former is
available only to a person actually in possession of a thing. The
right of possession exists either in addition to, or independently
from, the intention to control a thing. Ius possidendi enables a
person to demand that he or she be given possession of a thing, that
is, an entitlement which justifies a person’s claim to have a
thing in his or her possession. Thus a person may have the intention
to control a thing without actually being in possession of the
particular thing and, conversely, he or she may have a right of
possession without having a ius possidendi. The following examples
will serve to illustrate the distinction as well as the connection
between the ius possesionis and the ius possidendi:







And at page 255-6 the following
appears:







12.3 Objective
control element



As
mentioned before, the law requires certain elements to be present
before a person is regarded a possessor. Basically, two requirements
have to be met: (i) the person needs to be in effective physical
control of the thing; and (ii) needs to have the intention to derive
some benefit from the possession. To acquire possession, effective
physical control must be exercised over the thing concerned.
Possession of both movable and immovable things can be acquired by
either delivery (traditio) or occupation (occupatio). In the case of
delivery the physical element consists in the actual handing over of
the thing by the existing possessor to the acquirer of possession,
except in the case of the fictitious forms of delivery where the
physical element takes on a less conspicuous form²³.
Occupation is a unilateral method of acquiring possession, the
physical element consisting in the taking of a thing whether
possessed or unpossessed, without the co-operation of a previous
possessor.”







[29] If reliance is placed on
paragraph 12.3 of the cited authority, I turn to what was said in one
of the cases cited in footnote 21 on that page, namely
Morkels
Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and Another (1972 (2)
SA 464 (W.L.D)
In that
case, considering the requirement of continuous possession for 30
years for the purposes of acquisitive prescription, the Court
(Coleman J) had the following to say at p. 467 H - 468 A.







The
continued possession for 30 years need not have been that of the
claimant alone. He can rely on the possession, of the appropriate
kind, by his immediate predecessor or predecessors (Voet 44.3.9;
Stephenson v Lamsley, 1948 (4) S.A. 794 (W) at p. 796). It is not
necessary that every part of the area be occupied or used; in some
circumstances use of every square foot of an area would be
impracticable, and the test is whether there was such use of a part
or parts of the ground as amounts, for practical purposes, to
possession of the whole. (See Pollock and Weight on Possession at p.
31, quoted with approval in Welgemoed v. Coetzer and Others, 1946
T.P.D.. 701 at p. 720). Nor is absolute continuity of occupation
required, provided that there is no substantial interruption. Much
depends, in this regard, upon the nature of the property and the type
of use to which it is put. (see Boshoff and Another v. Reinhold and
Co., 1920 A.D. 29 at p. 33; Mocke v. Beaufort West Municipality,”
1939 C.P.D. 135 at p. 142; Head v. Du Toit, 1932 C.P.D. 289 at p.
292)”







The case Nienaber
v Stuckey,
1946 A.D. 1049,
also cited in footnote 21; discusses mainly the question whether
exclusive possession was a requirement to entitle a claimant to the
remedy of mandament van spolie. The court (Greenberg J.A) in that
case accepted at 1056 the fact that “there may be different
rights, in respect of the same piece of land, vested in different
persons, all entitled, to the protection of spoliation proceedings”







[30] In paragraph 260 LAWSA
vol 27 appears the following:







260
Indirect or vicarious possession



Physical
control over a thing need not be exercised personally but may be
exercised indirectly by a representative or a servant of the owner.
Thus, a herdsman can exercise control on behalf of the owner of the
cattle. Likewise, a lessee can exercise control on behalf of the
lessor.”







The authorities for that statement are
cited in footnote 3 as,
inter
alia
, Voet
41.2.12 and Van Wyk v Louw,
1958
(2) SA 164 (C).







In Van Wyk’s case, supra,
Ogilvie Thompson J (as he then was) stated: at p171 D
.



The
next point taken by Mr. Bloch was that plaintiffs had failed to show
sufficient legal possession of Lot 10 in J. J. Louw upon which
plaintiffs can now in law rely in computing the thirty-year period.
Since Abraham Louw and van Wyk occupied Lot 10 by virtue of leases
thereof from J.J. Louw, such occupation by them did not constitute
legal possession upon which plaintiffs can now rely. It is of course
clear that legal possession may be held through another and that a
landlord may have legal possession through his tenant (Voet 41-2-12:
Gane’s trans. vol. 6 p. 244)”. (my emphasis)







(See also Philotex
v Snyman,
1994 (2) SA 715
(T)
at 715 F-G and Glaston
House (Pty) Ltd v Cape Town Municipality,
1973
(4) SA 276 (C) at 282 C-D
per
Corbett J., as he then was, and
Ex
Parte Van Der Horst: In Re Estate Herold,
1978
(1) SA 299 TPD at 301 B-G. Lastly, in the 3
rd
edition of Silberberg & Schoeman’s,

The Law of Property,
the
authors state:







Once
possession has been acquired continuous physical contact
or,
in the case of land, continuous occupation or use, is not necessary
for the retention of such possession
.”
(my emphasis)







In footnote 35 the learned authors
cited a number of cases as authority for this statement; among the
cases cited is the case
Welgemoed
v Coetzer and Others,
1946
T.P.D 701. In that case Murray J said at p. 720:







I
am prepared to accept as correct certain principles for which
authority was cited – viz. the required continuity of
occupation need not be absolute continuity, for it is enough if the
right is exercised from time to time as occasion requires and with
reasonable continuity (Mocke v. Beaufort West Municipality (1939,
C.P.D. at p. 142)); the occupation and user need not be of every
individual portion of the area claimed for a possession or occupation
of the whole may in certain circumstance be a necessary inference
from the possession or occupation of a part hereof or different parts
thereof at various times (see Pollock and Wright on Possession, p.
31); and the exercise is open even without actual knowledge on the
part of the true owner, provided it was open for all to see who
wanted to see, and would have been known to the true owner but for
his carelessness in looking after his property (Dalton v. Angus (6
A.C. at pp. 815, 816, 828))” (my emphasis)







With respect what was said in that
case depicts the kind of situation appellants were in in the present
matter i.e. as regards their occupation of the premises in question.







[31] To sum up, on the above
authorities, it seems to me that there could be no doubt that the
finding by the Court
a quo
that appellants lost
possession when they leased the premises where the Kanaindo bottle
store and Bar is situated on Sandfontein Farm No 468 cannot be
supported. The contention by the respondents should have been
rejected.







[32] The costs order was sought
against third respondent
de
bonis propriis
on attorney
and client scale, alternatively against first and second respondents
on an attorney and client scale. The Court
a
quo
declined the invitation
by Mr. Hinda, who appeared for the respondents, to make such an
order, “including costs of an instructing and instructed
councel”. He did so “taking into account the nature of
the case.” Mr. Coleman who appeared for the appellants on
appeal and in the court below now moved that costs be awarded
de
bonis propriis
against
third respondent because, he said, “it is clear that he advised
his clients to act unlawfully; or at least refrained from advising
them that their actions are unlawful”. He, of course,
recognized the punitive nature of such an order of costs.







[33] I have also considered the nature
of the case, particularly the fact that the dispute about the
Kanaindo Bottle Store and Bar is involved with the bigger dispute as
to the ownership of the Farm, which is still pending for
determination in the High Court. I do not think third respondent’s
conduct of his clients’ case qualifies to be described as
reckless or malicious. If a legal practitioner were to be penalized
for the wrong advice he may have given his clients, I do not think
that would be a proper exercise of the discretion that reposes in the
court. Lastly, Mr. Coleman said that the conduct of counsel for the
respondent’s was exacerbated by the delay of the matter when
third respondent obtained an eviction order
ex
parte
which was
subsequently set aside. That submission merits no further
consideration in this matter, because the setting aside of the
eviction order was with costs against the respondents. Also,
considering the nature of the case, I do not see this as a proper
case to visit first and second respondents with a punitive order of
costs. The third respondent is entitled to his costs of resisting
the appeal in that regard, but I note that argument in respect
thereof took less than a quarter of an hour.







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








  1. The appeal succeeds save as to costs
    against third respondent.









  1. The discharge of the rule
    nisi
    obtained by the
    appellants on 30 October 2007 and the order of costs are set aside
    and substituted by the following:




1. Paragraphs
2.1 - 2.3 of the rule

nisi

issued on 9 November 2006 are confirmed.



2. The
first and second respondents, jointly and severally, the one paying
the other to be absolved, are ordered to pay the applicants’
costs.”








  1. The first and second respondents,
    jointly and severally, the one paying the other to be absolved, are
    ordered to pay appellants’ costs on appeal, such costs are to
    include the costs of one instructing counsel and one instructed
    counsel.









  1. The appellants are ordered to pay
    third respondent’s costs of resisting the appeal, jointly and
    severally, the one paying the other to be absolved.














_____________________


MTAMBANENGWE,
AJA






































































































MARITZ,
J.A. (
Dissenting):







[1] The
appellants unsuccessfully sought an order in the Court
a
quo

against the first and second respondents to restore possession of
certain movable and immovable things to them
ante
omnia
.
The immovables comprise a designated - but as yet unsurveyed and
undivided - portion of the farm Sandfontein (referred to as portion 2
thereof) and the buildings thereon in which a business, known as
Kainando Bottle Store and Bar, was carried on (the “premises”).
The movable things include items of furniture, bedding, clothing,
cutlery and crockery (the “movables”) which, they
claimed, had been on the premises at the time when they were deprived
of the possession thereof.







  1. The
    application to restore their possessory status
    quo
    ante
    is
    based on the principle:
    spoliatus
    ante omnia restituendus est
    .1
    Thus, they claim, possession of the premises and movables should be
    restored to them by the first and second respondents before the
    ultimate determination of their disputed proprietary and other
    possessory claims and rights thereto in other litigation pending
    between them in the High Court
    2.
    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
    3.
    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, eg, 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.”
4







  1. Even
    though the mandament is therefore not intended to bring about the
    ultimate determination of the competing proprietary or possessory
    claims of the litigants to the things in contention
    5,
    it nevertheless constitutes a final determination of the litigants’
    “immediate right” to posses them for the time being
    6.
    In this regard, Greenberg JA noted in
    Nienaber
    v Stuckey
    7
    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”.
    Consequently, it falls to be noted for purposes of the approach to
    be followed in this appeal that a litigant who is seeking a
    spoliation order bears the burden to prove the facts necessary for
    the success of the application on a balance of probabilities.








  1. 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.
    8
    Moreover, not just any measure of possession – however
    technical, remote, tenuous or brief - will suffice: the Court must
    be satisfied, regard being had to the nature of the thing
    dispossessed, that the despoiled possession of the thing was
    sufficiently stable and durable
    9
    to constitute “peaceful and undisturbed possession”.
    10








  1. The
    application in the Court
    a
    quo

    failed on this point
    11:
    the presiding Judge found after an extensive analysis of the
    relevant authorities and facts that the appellants “were not
    and could not have been in possession – peaceful and
    undisturbed possession – of” the premises during the
    periods that they let it to a number of lessees
    12.
    He, therefore, concluded that the appellants had failed, “on a
    balance of probabilities, to discharge the onus that they were in
    peaceful and undisturbed possession of the bottle store –
    possession that was sufficiently established, stable or durable –
    and that they have been illicitly deprived of possession of the
    bottle store by the respondents”
    13.
    In addition, he concluded that there was also “no credible
    evidence to support (the appellants’) rearguard assertion that
    at the time the bottle store was leased, they kept some of their
    belongings in the bottle store.” In the result, he discharged
    the rule
    nisi,
    which
    had been issued previously, with costs.







  1. My
    brother Mtambanengwe, whose judgment I had the advantage and
    privilege to read, arrived at a different conclusion: His judgment
    highlights at the outset a number of important factual misdirections
    in the reasoning of the Court
    a
    quo

    and then turned to, what he considered as, “the crucial
    finding that the appellants lost possession when they leased the
    premises to others”. On that issue, he reasons with reference
    to
    Nienaber
    v Stuckey,

    1946 AD 1049 at 1056 that, in respect of the same land, different
    rights may be vested in different persons, all of whom may be
    entitled to protection under the mandament; with reference to
    LAWSA,
    vol. 27, par. 260 that physical control over the premises need not
    be exercised personally but may be exercised by a lessee on behalf
    of the lessor (the appellants in this case);

    with
    reference to
    Van
    Wyk v Louw,
    1958
    (2) SA 164 (C) at 171D that a landlord may have legal possession of
    the leased premises through his tenant; and, by parity of reasoning
    to the possessory requirement for acquisitive prescription referred
    to in
    Morkels
    Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and Another,
    1972
    (2) SA 464 (W) at 467H-468A,
    Welgemoed
    v Coetzer and Others,
    1946
    T.P.D 701 at 707 and
    Silberberg
    and Schoeman’s The Law of Property,
    3rd
    ed.
    by Badenhorst
    et
    al
    .,
    that neither complete nor absolute continuity of occupation of land
    is required for possession. On account of these authorities, he
    concludes that the Court
    a
    quo’
    s
    findings that the appellants lost possession when they leased the
    premises cannot be supported and that the appeal should therefore
    succeed.








  1. The
    view I respectfully take is that the appeal should be upheld but, as
    against the first and second respondents, for reasons somewhat
    different to those proposed by my Brother. I agree with his
    reasoning that an order of costs
    de
    bonis propriis
    against
    the third respondent is not justified and that the appeal must, to
    that extent, fail. In what follows, I shall therefore only refer to
    the first and second respondents and, for considerations of
    convenience, firstly deal with the alleged spoliation of the
    premises before I briefly turn to the relief sought in respect of
    the movables.








  1. The
    appellants were previously the registered owners of the farm on
    which the premises are situated. Although both the validity and the
    extent of the farm’s alienation by sale are being contested in
    litigation pending between the parties in the High Court, it is not
    in dispute that the appellants had been in possession of the
    premises at least until they rented it to a succession of lessees.
    Once possession of an immovable thing has been has been established,
    occupation, control and use thereof need not always be complete,
    continuous or direct for it to be sustained. It would be
    impracticable – and in many instances be impossible - to
    continuously occupy or use every square centimetre of land and the
    appurtenances thereof. This is not just illustrated by numerous
    authorities to that effect (some of which have been referred to in
    the judgment of my Brother Mtambanengwe
    14),
    but also follows as a matter of common sense
    15.
    Moreover, as will be illustrated in more detail later, possession
    may sometimes be exercised vicariously or indirectly, e.g. through
    an employee or representative of the possessor.









  1. Possession
    of an immovable thing may, of course, be lost for a number of
    reasons
    16.
    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
    17
    necessary to sustain possession are no longer present, must be
    determined with regard to the circumstances of each case. As a
    general proposition, however, I agree with my Brother that the mere
    letting of an immovable thing does not justify, without more, an
    inference that the lessor/possessor has lost possession thereof. In
    the context of acquisitive prescription, it has been accepted with
    reference to Voet 41.2.12 that “legal possession may be held
    through another and that a landlord may have legal possession
    through his tenant”.
    18








  1. It
    is evident, in my view, from the from the uncontested facts in the
    application and from terms of the lease agreement between the second
    appellant and the last tenant, one Uno Hengari, that the appellants
    did not relinquish physical control of the premises or abandon their
    intention to possess it by letting it to him. The contract was for a
    fixed – and relatively short - term (clause 2(b)); the second
    appellant was the holder of a liquor license issued under the Liquor
    Act, 1998 in respect of the premises and it was agreed, subject to
    the provisions of section 36 of the Act relating to the leasing of
    licensed businesses, that Hengari would continue the trade in liquor
    on the premises on the authority of the second appellant’s
    license and that she had to renew the licence from time to time at
    her own expense (clauses 2(a) and (c)); the local electricity
    supplier, Nampower, supplied electricity to the premises during the
    currency of the lease in terms of a service agreement with the
    appellants (clause 4); Hengari was precluded from making any
    alterations to the premises without the second appellant's prior
    written consent (clause 6); the second appellant retained the right
    to inspect the premises at all reasonable times upon adequate notice
    (clause 9); a number of movable items, which belonged to do the
    appellants but were used in the running of the business (such as two
    pool tables, three bar fridges, one steel table, one bench corner
    unit, two steel shelves and a number of wall shelves), were left on
    the premises for use by the lessee in terms of the lease agreement
    (clause 7(a)); the second appellant was entitled to 75% of the
    profits generated from the two pool tables during the period of the
    lease (clause 7(b)) and, finally, that the lessee was obliged to
    return the premises to the second appellant upon termination of the
    lease in good order and repair, fair wear and tear excluded (clause
    7(a)).








  1. It
    was both practical and convenient for the second appellant to carry
    on the business of a bar, bottle store and restaurant on the
    premises whilst her husband, the first appellant, farmed with
    livestock on the remainder of the farm. The situation changed after
    the first appellant had sold the farm and, when the respondents
    deprived them of possession of the remainder (i.e. the portions of
    the farm which do not include the premises) and they had to move
    their farming operations elsewhere, it was no longer practical and
    financially feasible for her to carry on with the business on the
    premises in person. Hence, they decided to let the premises and
    allow the lessee to carry on with the business as a going concern on
    authority of the second appellant’s liquor licence. The
    cumulative effect of the provisions of the lease agreement to which
    I have referred to earlier evidences continued - albeit indirect -
    physical control over the premises by the second appellant and, by
    letting it at an agreed rent, also an intention to so possess it for
    their own benefit.








  1. I
    do not understand the judgment of the Court
    a
    quo

    to hold that the appellants did not possess the premises all during
    the currency of the lease. Had it done so, I would have respectfully
    disagreed for the reasons and on the authorities I have mentioned.
    The Court
    a
    quo

    held - and emphasised - that the appellants had failed to show
    “possession that was sufficiently established, stable or
    durable” for the Court to grant the mandament. In arriving at
    this conclusion, the Judge
    a
    quo

    reasoned that the lessees “were in physical occupation of the
    bottle store and (that) they had the necessary intention to hold it
    as their own and to derive some benefit from it for themselves.”
    A tenant almost invariably possesses leased premises
    animus
    ex rebus commodum acquirendi
    .
    But, so too, does the landlord who lets it. The nature of the
    benefits they are seeking for themselves may well differ but, even
    though they relate to the same premises, they are not mutually
    exclusive. In the context of the mandament’s requirements, the
    more significant difference is that a tenant’s possession and
    control of the leased premises are immediate and direct whereas that
    of the landlord is, at most, indirect. It follows that, if
    spoliated, a tenant may obtain the mandament against the spoliatus
    to restore possession
    19
    – even if the latter happens to be the landlord
    20.








  1. The
    more difficult question is whether a landlord has a right,
    concurrently with that of the tenant, to claim such relief in
    respect of the leased premises against a third party? More so, if
    the tenant fails or refuses to take action against the
    spoliatus.
    I have not been able to find judicial pronouncements on this point.
    Some legal commentators
    21
    and writers suggest the landlord’s indirect possession should
    also be protected by the mandament. One of the views, expressed by
    Van Der Merwe in
    LAWSA,22
    is the following:








“In
cases of indirect possession the question may arise in future whether
the direct possessor and the person exercising indirect possession
through another should not both be entitled to a mandament van
spolie. Where physical control is exercised on behalf of a master or
employer by a servant or an employee, the courts have decided that
only the master or the employer can institute the mandament. What,
however, about the case where the direct possessor such as an agent
or a lessee who exercises control on behalf of a principal or a
lessor does in fact have the intention of deriving some benefit from
the thing? In this case it is submitted that both the direct and the
indirect possessor should in principle be entitled to the mandament.
The direct possessor should have the first opportunity of instituting
the mandament. If the latter is, however, unwilling or unable to
institute the mandament, the vicarious possessor (namely the
principal or the lessor in the above example) should be entitled to
avail himself of the mandament.”







Interesting
as his contention may be, I do not find it necessary to decide the
point in the context of this case and, therefore, refrain from
expressing any view thereon. It suffices for purposes of the
reasoning to follow to hold, as I do, that the second appellant did
not lose possession of the premises during the currency of the
successive leases entered into by her.











  1. It
    is not necessary to express myself on a landlord’s concurrent
    (or accessory) rights to the mandament because it is common cause
    that the alleged spoliation of the premises took place after
    termination of the lease agreement, not during the currency thereof.
    The tenant, Hengari, terminated the lease agreement and vacated the
    leased premises “on or before 31 August 2006” – in
    the first respondent’s words. It was only on 2 September 2006,
    while the first respondent was in Moscow, that he received a
    telephone call from his wife, the second respondent, informing him
    about the development. He then called one of his employees, Mr
    Kandimuiine, to confirm the second respondent’s earlier report
    and instructed him to put padlocks on the doors of the premises. It
    follows, even if the respondents’ version of events is to be
    accepted, that they secured possession of the premises for
    themselves by locking it only a couple of days after the lease had
    terminated and the premises had been vacated by the lessee. It was
    by putting padlocks on the doors, the appellants allege, that they
    have been deprived of possession. The appellants’ case is
    therefore not that they had been spoliated during the currency of
    the lease, but that it happened after the termination thereof.








  1. In
    De
    Beer v Firs Investments Ltd
    23
    Coetzee J emphasised 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”.
    Although the respondents dispute the appellants’ claim that
    the latter personally took possession of the premises after the
    lessee had vacated them, it is common cause that the appellants’
    eldest son, Alfons, continued to stay on therein. He, in fact,
    states in reply that when the lessee vacated the premises, he
    (Hengari) left the key to the premises with him.








  1. I
    interpose here to note that it was contended on behalf of the
    respondents that this evidence, tendered in reply, should be
    disregarded because it constitutes “new” evidence which
    should have been part of the appellants’ founding papers. It
    is trite that all allegations necessary to sustain the relief being
    sought in application proceedings must generally be supported by
    evidence tendered in the founding papers and that the court will
    only allow an applicant to supplement those allegations where
    necessary to establish its case in reply under exceptional
    circumstances.
    24
    The case which a respondent is called upon to meet is, after all,
    the one set out in the founding affidavits.
    25
    The evidence which the respondents requested the Court to disregard
    – and I must note that there was no application for it to be
    struck – does not seek to introduce a new ground for the
    relief prayed for: It is been alleged in the first appellant’s
    founding affidavit (and supported in the confirmatory affidavits of
    the second appellant and their son) that they took possession of the
    premises after the lessee had vacated them and that their son,
    Alfons, remained on the premises to take care thereof. Although some
    of these allegations are denied, it is not denied that Alfons
    remained on the premises. What remained in issue was the underlying
    reason for his presence on the premises – a denial which I
    shall presently deal with. It is common cause, however, that he was
    resident on the premises when, on 2 September 2006, the respondents
    put padlocks on the doors. According to the answering affidavits of
    respondents and that of the former tenant, Hengari, which was
    tendered in support, Alfons (and two other persons) continued to
    occupy the premises after he had vacated them. The appellants’
    son could obviously not do so without keys to the premises. The
    allegation by second appellant’s son in reply constitutes in
    my view a fair response to respondents’ denial of the clear
    factual basis of possession laid in the appellants’ founding
    affidavits and, in any event, has been invited by the defence set up
    by the respondents in opposition. Had the respondents been surprised
    by this allegation in reply and possessed information to the
    contrary, they would have been at liberty to tender a further
    affidavit to the contrary and to seek the Court’s leave for it
    to be allowed in evidence.
    26









  1. The
    respondents also deny that the appellants’ son occupied the
    premises as the appellants’ agent or representative after
    termination of the lease. In the view I take, this denial does not
    raise a
    bone
    fide

    dispute of fact and is, in any event, so patently untenable that it
    may be rejected merely on the papers.
    27
    In terms of clause 7(a) of the lease agreement and the authority I
    have referred to earlier, Hengari was obliged to return the leased
    premises (and the second appellants’ movable property
    specified in the contract) to her. Even if I accept, on the
    respondent's version, that Hengari allowed appellants’ son
    (and two other ladies) to take up residence on the premises during
    the currency of the lease because of a shortage of accommodation
    elsewhere in town, the indulgence extended to them terminated at the
    same time as the lease agreement. When Hengari vacated the premises
    all those occupying under him or on his authority had to do so as
    well. The act of handing over the keys to the premises to the second
    appellant’s son could therefore not signify his permission for
    the latter to stay on – that permission was no longer his in
    law to give. In the circumstances, the inference that he handed over
    the keys in the discharge of his contractual and common law
    obligation to return the premises and movables thereon to the second
    appellant is almost irrefutable. At the very least, it is justified
    on a balance of probabilities.








  1. It
    has long been recognised that the handing over of the key to a
    building is not only an important symbolic act of delivery but, if
    none other than the holder of the key and his or her representatives
    have keys to access a building, it also constitutes an act of
    “transferring” possession of and control over the
    building and its contents to the receiver. Many of the authorities
    in that regard have been collected and discussed by Thring J in
    Wightman
    t/a JW Construction v Headfour (Pty) Ltd and Another
    28.
    Three of the points relevant to this appeal which emerged from his
    analysis are 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; after all, that is the primary purpose which locks and keys
are designed to achieve.



(3) Where
… 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 ….”
.







If this
summary of judicial authority in point is applied to the facts and
the probabilities of this matter, the following conclusions must
follow on the evidence: The tenant, Hengari, was contractually
obliged to restore the leased premises and specified movables thereon
to the second appellant upon termination of the lease, at the latest,
on 31 August 2006; he did so by handing the keys of the building to
the second appellant’s son; the latter received and held them
on his mother’s behalf; as such he was able to access to the
premises and to retain control thereof and of the movables therein on
her behalf; through him she could exclude others from the premises
and could enter the premises without assistance from or interference
by others
29;
the respondents did not have keys to the building and, in
dispossessing the appellants on 2 September 2006, were constrained to
put padlocks on the doors; in doing so, they despoiled the second
appellant’s possession of the premises and the movables therein
illicitly, i.e. “in a manner which the law will not
countenance.”
30







  1. What
    remains, is to determine whether the finding that the second
    appellant did not directly possess the premises at the time of
    spoliation but used, occupied and controlled it indirectly through
    her son constitutes a bar to the remedy. It is now well settled law
    that the mandament is not available to an employee
    31
    or representative
    32
    who possesses a thing not for his or her own benefit but for the
    benefit of their employer or principal (
    animus
    non sibi sed alteri possidendi
    ).
    In
    Mpunga
    v Malaba,
    33
    Steyn AJ (as he then was) restated this proposition:








It
seems to me that the authorities have established that a servant or a
person who holds no rights on his own behalf, except insofar as such
rights derive from an authority given to him by the master, is not
entitled to bring proceedings for a spoliation order, but that only
the employer can do so. In other words, it seems to me that before a
person can bring spoliation proceedings, he must show that the right
of which he has been spoliated is something in which he has an
interest over and above that interest which he has as a servant or as
a person who is in the position of a servant or a quasi-servant.”







In such
instances, it is the employer or principal who actually possesses the
thing
34,
albeit vicariously or indirectly. They are the ones entitled to
protect their possession by seeking a mandament against a
spoliatus.35








  1. It is for
    these reasons that I respectfully agree with the conclusion of my
    Brother Mtambanengwe that the Court
    a
    quo

    should have granted the mandament in respect of the premises. In
    addition, having been deprived of possession of the movables on the
    premises when the respondents barred the doors with padlocks, the
    mandament should have been granted for the same reasons,
    mutatis
    mutandis,

    in respect of those movables.





  1. In
    the result, I would therefore make the same order as the one
    proposed by him.








______________________________



Maritz, JA.



































































CHOMBA, AJA (Dissenting):




  1. I have had the opportunity of
    perusing the lead and concurring judgments prepared by my brothers,
    Mtambanengwe, AJA, and Maritz, JA, respectively, in this case. Both
    of them, I notice, have arrived at the same decision, namely that
    this appeal should succeed. However, in doing so they have taken
    divergent routes on the main issue underpinning the appeal. That
    issue is whether or not in divesting the appellants of their
    possession of the disputed premises, namely Kanaindo Bar and Bottle
    Store, the respondents breached the law on
    mandament
    van spolie
    .









  1. The facts of the dispute with which
    this appeal is concerned have been fully recapitulated by my two
    brothers. Further the statement of the relevant law, as formulated
    by the judge of the Court
    a
    quo,
    has evoked no
    controversy between my brothers. Therefore it will be
    otiose
    for me to delve into the facts or the law, save merely to reproduce
    the formulation of the law as stated by the judge
    a
    quo,
    viz:








From
the authorities, it is clear that the central principle of the remedy
(relating to the law of
mandament
van spolie
)
is simply that no person is allowed to take the law into his or her
own hands and thereby cause a breach of the peace. Thus, the remedy
is aimed at every unlawful and involuntary loss of possession by the
possessor. Consequently, its single object is the restoration of the
status
quo

ante
as a prelude to any inquiry into the merits of the respective claims
of the parties to the thing in question.”








  1. The judgment of Mtambanengwe, AJA
    appears to be premised on his perceived understanding that the judge
    a quo had
    held that the appellants had lost possession of the premises in
    dispute at the time that the second appellant leased the premises on
    three successive occasions to Guim, Kapenda and lastly to Hengari.
    He then held, after considering a number of decided cases, that in
    landlord and tenant cases, both the landlord and tenant do retain
    possession of the demised premises, with the tenant holding actual
    physical possession, while the landlord remains with legal
    possession.









  1. On the basis of the foregoing ratio,
    Mtambanengwe, AJA held that either the landlord, as in the present
    case, or the tenant as
    de
    facto
    possessor, has
    capacity to institute an action in
    mandament.
    It was for that reason that he concluded that the Court
    a
    quo
    had erred in holding
    that the fact of leasing resulted in loss of possession of the
    premises by the appellants, and consequently reversed its decision.








  1. While agreeing with Mtambanengwe, AJA
    in regard to the ultimate result of the appeal, Maritz, JA appears
    to have distanced himself from the holding of Mtambanengwe, AJA that
    the Court
    a quo had
    held that the appellants had lost possession of the premises upon
    leasing the same as stated above. Maritz, JA found that the error
    of the Court
    a quo lay
    in the finding it made that the appellants had, on a balance of
    probabilities, failed to discharge the onus they bore to prove that
    they had been in peaceful and undisturbed possession of the premises
    in dispute at the time of the alleged spoliation. The learned trial
    judge had come to that conclusion on the basis of the reasoning that
    the effect of the leasing of the premises was to interfere with the
    state of peaceful and undisturbed possession the appellants had
    prior to the leasing.








  1. Upon a careful reading of the
    judgment appealed against in this case, I agree with Maritz, J.A.
    that indeed the pillar upon which the Court
    a
    quo
    based its decision was
    the perceived failure to discharge the onus of proof as stated in
    the preceding paragraph.








  1. The learned judge a
    quo
    does not appear to
    have appreciated the various factors outlined by Maritz, J.A. which
    evidenced elements of continued abstract possession of the premises
    by the appellants during the tenancy periods. The factors
    highlighted by Maritz in this connection were: The fact that the
    liquor licence used during the lease periods was in the second
    appellant’s name; the fact that the lease, particularly that
    between the second appellant and Hengari, who was the last lessee,
    significantly stipulated that upon its lapse the premises would
    revert to the 2
    nd
    appellant; the fact that it was after the termination of Hengari’s
    lease when, on the instructions of the first respondent, one of the
    respondents’ servants put padlocks on the doors to the
    premises; the fact that during the lease periods the second
    appellant was responsible for paying for the electricity supply to
    the premises; and the fact that upon termination of his lease,
    Hengari surrendered the keys to the premises to Alfons, the son of
    the appellants. That surrender of keys was done about two days
    before the respondent’s servant put the respondents’ own
    padlocks on the doors to the premises.









  1. I would agree that the hand-over of
    the keys to Alfons symbolized reversion of possession of the
    premises to the appellants. Alfons’s status at the time of
    accepting the keys from Hengari was none other than that of being
    the appellants’ son. This is because whatever relationship
    Alfons had with Hengari vis-à-vis the premises ended at the
    expiry of that lease. That relationship was incapable of surviving
    beyond the end of the lease.








  1. Consequently, despite the brevity of
    the reversion period of the possession, namely the period between
    the hand-over of the keys and the subsequent padlocking of the
    doors, that period did represent a peaceful and undisturbed
    possession on the part of the appellants. In my view, it follows
    that the padlocking constituted unlawful usurpation of possession by
    the respondents.








  1. I accordingly also concur with the
    ultimate decision of the lead judgment, and endorse the order as to
    costs.












_____________________


CHOMBA,
AJA





























Counsel
for the Appellant: Mr. G. Coleman



Instructed by: LorentzAngula Inc.








Counsel
for the Respondent: Mr. G. S. Hinda



Instructed by: Ueitele & Hans
Legal Practitioners



1
“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.” Per Price J in Greyling v Estate Pretorius,
1947 (3) SA 514 (W) at 516 in fine – 517A. Compare also
Wille, Principles of South African Law, 7th ed.,
p.198 - quoted with approval in Willowvale Estates CC and Another
v Bryanmore Estates Ltd,
1990 (3) SA 954 (W) at 956D – I.




2
C.f. Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi, 1989
(1) SA 508 (A) at 512A – F; Le Riche v PSP Properties CC
and Others
, 2005 (3) SA 189 (C) at 198D-E.




3
See: Tswelopele Non-Profit Organisation and Others v City of
Tshwane Metropolitan Municipality and Others,
2007 (6) SA 511
(SCA) at 250A-B; Malan v Dippenaar, 1969 (2) SA 59 (O) at 64
in fine and the authorities referred to therein; Badenhorst
et al., Silberberg and Schoeman’s The Law of Property,
5th ed., p. 287-288 and Van Der Merwe, Sakereg,
2nd ed., p.118-119.




4
Per Van Den Heever, JA in Boompret Investments (Pty) Ltd v
Paardekraal Concession Store (Pty) Ltd,
1990 (1) SA 347 (A) at
353B-D and the authorities referred to. See also: Nino Bonino v
De Lange
, 1906 TS 120 at 122.




5
“The remedy 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.” Per Viviers J in Ness v
Greef
, 1985 (4) SA 641 (C) at 647B-C.




6
See: Mankowitz v Loewenthal, 1982 (3) SA 758 (A) at 767F-H.




7
1946 AD 1049 at 1053




8
Compare: Yeko v Qana, 1973 (4) SA 735 (A) at 739D-H where Van
Blerk JA said: “The very essence of the remedy against
spoliation is that the possession enjoyed by the party who asks for
the spoliation order must be established.” In Ness and
Another v Greef
, 1985 (4) SA 641 (C) at 647D-E, Vivier J
elaborated on it: “According to the authorities, the applicant
for a spoliation order must first of all establish that he was in
peaceful and undisturbed possession of the thing in question at the
time he was deprived of possession. By the words "peaceful and
undisturbed" is probably meant sufficiently stable or durable
possession for the law to take cognizance of it.” See also:
Shoprite Checkers Ltd v Pangbourne Properties Ltd, 1994 (1)
SA 616 (W) at 619F-H.




9
See: Ness and Another v Greef, supra, at 647D-E
followed in Mbangi and Others v Dobsonville City Council,
1991 (2) SA 330 (W) at 365 in fine.




10
C.f. Wightman t/a JW Construction v Headfour (Pty) Ltd and
Another,
2008 (3) SA 371 (SCA) at 380E-F: “In order to
succeed in the application the appellant had to establish that he
was in peaceful and undisturbed possession of the property and that
he was unlawfully deprived of that possession”. See also:
Singh v Santam Insurance Ltd, 1997 (1) SA 291 (A) at 294H-I.




11
Reported as: Kuiiri and Another v Kandjoze and Others, 2007
(2) NR 749 (HC).




12
At p 755D.




13
At p 756B.




14
Most notably Morkels Transport (Pty) Ltd v Melrose Foods (Pty)
Ltd and Another, supra
at 468A-B; Welgemoed v Coetzer and
Others, supra
at 720 and Badenhorst et al., Silberberg
and Schoeman’s: The Law of Property,
4th ed., p
278.




15
See: Ex parte Van der Horst: In re Estate Herold, 1978 1 SA
299 (T) at 301A-B and the later discussion (at 301F-G) of the
judgment in Mulder v Divisional Council of Prince Albert,
(1886) 4 S.C. 139 at 142-143. See also: Bennett Pringle (Pty) Ltd
v Adelaide Municipality,
1977 (1) SA 230 (E) at 233G-H.




16
Compare: Joubert et al., LAWSA, Vol. 27 (First Reissue) par
261.




17
For a general discussion of those elements, see: Siblerberg and
Schoemans, op.cit., at p 293.




18
Per Ogilvie Thompson, J in Van Wyk and Another v Louw and
Another
, 1958 2 SA 164 (C). See also De Jager v Harris, NO
and the Master
, 1957(1) SA 171 (SWA) where the Court held that a
bona fide possessor of an immovable who had erected a
dwelling thereon may, for purposes of enforcing his lien, retain
possession thereof through the agency of a tenant. And, in general:
Joubert et al., LAWSA, Vol. 21 (First Reissue) par 131




19
Blomson v Boshoff 1905 TS 429; Bennett Pringle (Pty) Ltd v
Adelaide Municipality,
supra, at 233H; Magadi v West
Rand Administration Board,
1981 2 SA 352 T.




20
C.f Bennett Pringle (Pty) Ltd v Adelaide Municipality, supra,
at 237E-G; Nino Bonino v De Lange, supra, at 125




21
Sonnekus 1978 SALJ 217 at 221; Delport and Olivier, Sakereg
Vonnisbundel,
p 74–75; Sonnekus 1982 TSAR 178 180.




22
Vol.27 (First Reissue) par 266 in fine. See also: Sakereg
(2nd ed.) by the same author at p127.




23
1980(3) SA 1087 (W) at 1092H.




24
See: Stipp and Another v Shade Centre and Others, 2007 (2) NR
627 (SC) at 634G-H.




25
Pountas' Trustee v Lahanas, 1924 WLD 67 at 68




26
As to the general rule compare James Brown & Hamer (Pty) Ltd
(previously named Gilbert Hamer & Co Ltd) v J Simmons NO,

1963 (4) SA 656 (A) at 660D – H and as to the discretion of
the Court in that regard see: Standard Bank of SA Ltd v
Sewpersadh and Another
, 2005 (4) SA 148 (C) at 154B-F.




27
C.f. Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty)
Ltd
,1984 (3) SA 623 (A) at 634E - 635C.




28
2007(2) SA 128 (C) at 133I-136F.




29
C.f. Ex parte Van der Horst: In re estate Herold, supra, at
301F-G.




30Per
Broome J in R v M, 1949(4) SA 975 (N) at 977.




31
See: Greaves and Others v Barnard, 2007 (2) SA 593 (C) at
596A-B; Du Randt v Du Randt, 1995 (1) SA 401 (O) at 406E-G;
Dlamini and Another v Mavi and Others, 1982 (2) SA 490 (W) at
493B-F.




32
See: Mbuku v Mdinwa, 1982 (1) SA 219 (Tk) at 222F-G; Barlow
Motors Investments Ltd v Smart,
1993 (1) SA 347 (W) at 352I-J.




33
1959 (1) SA 853 (W) at 861E-G.




34
Hutchison et al., Wille's Principles of South African Law
(7th ed.) at 196




35
See: Lawsa, op.cit., par 266 and the authorities cited
there