Jamieson and Another v Loderf (Pty) Ltd and Others (A595/2011) [2015] ZAWCHC 18 (20 February 2015)

Jamieson and Another v Loderf (Pty) Ltd and Others (A595/2011) [2015] ZAWCHC 18 (20 February 2015)

The court found that the version advanced by Loderf regarding voluntary surrender of possession was not credible and should have been rejected on the papers. The Jamiesons were entitled to spoliation relief at the time of the application and judgment in the court a quo. However, subsequent sale and transfer of the flats to innocent third parties without notice of the dispute rendered restoration of possession impossible. The spoliation remedy does not extend to innocent third parties who acquire possession in good faith. The court substituted the order of the court a quo with a declaration that Loderf unlawfully despoiled the Jamiesons of possession and awarded costs, but did not order...

Citation
[2015] ZAWCHC 18
Parties
Appellant: Brian Leslie Jamieson; Appellant: Barbara-Ann Jamieson; Respondent: Loderf (Pty) Ltd; Respondent: Benjamin Guy Blumenthal; Respondent: Taliah Salomon; Respondent: Nelio Manuel Mendes; Respondent: Armand van der Merwe; Respondent: Sisanda Pumeza Sipamla
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
20 February 2015
Case Number
A595/2011
Procedural Posture
Civil Appeal / Appeal From Dismissal of Spoliation Application; Joinder of New Owners; Substituted Relief Sought
Outcome
Appeal upheld in part; declaration of unlawful spoliation granted; costs awarded; restoration of possession not ordered due to sale to innocent third parties.
Judges
Bozalek, Rogers, Dolamo
Legal Topics
Mandament Van Spolie, Genuine Dispute of Fact, Builder Lien, Restoration of Possession, Res Litigiosa, Doctrine of Notice
Civil Procedure Land and Property Mandament Van Spolie Genuine Dispute of Fact Builder Lien Restoration of Possession Res Litigiosa Doctrine of Notice

Case Brief

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Parties

Brian Leslie Jamieson

Appellant

Barbara-Ann Jamieson

Appellant

Loderf (Pty) Ltd

Respondent

Benjamin Guy Blumenthal

Respondent

Taliah Salomon

Respondent

Nelio Manuel Mendes

Respondent

Armand van der Merwe

Respondent

Sisanda Pumeza Sipamla

Respondent

Procedural Posture

Civil Appeal / Appeal From Dismissal of Spoliation Application; Joinder of New Owners; Substituted Relief Sought

Legal Issues

  1. 1 Whether there was a genuine dispute of fact regarding the alleged spoliation and voluntary surrender of possession.
  2. 2 Whether the trial court erred in not referring the dispute to oral evidence.
  3. 3 Whether a spoliation order is competent after sale and transfer to innocent third parties during the pendency of appeal.

Ratio Decidendi

The court found that the version advanced by Loderf regarding voluntary surrender of possession was not credible and should have been rejected on the papers. The Jamiesons were entitled to spoliation relief at the time of the application and judgment in the court a quo. However, subsequent sale and transfer of the flats to innocent third parties without notice of the dispute rendered restoration of possession impossible. The spoliation remedy does not extend to innocent third parties who acquire possession in good faith. The court substituted the order of the court a quo with a declaration that Loderf unlawfully despoiled the Jamiesons of possession and awarded costs, but did not order...

Court Disposition

Appeal upheld in part; declaration of unlawful spoliation granted; costs awarded; restoration of possession not ordered due to sale to innocent third parties.

Orders

  • The appeal succeeds with costs, including those arising from the postponement on 22 November 2013 and those relating to the joinder of the second to sixth respondents.
  • The order of the court a quo is set aside and substituted with a declaration that the first respondent on 15 January 2011 unlawfully despoiled the applicants of their possession of Flat A3 (section 14), Flat A4 (section 15), and Flat B4 (section 20) in Avondale Flats, Three Anchor Bay, Cape Town.