Lessing v Serengeti Golf and Wildlife Estate (28609/2016) [2017] ZAGPJHC 261 (13 September 2017)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG LOCAL DIVISION, JOHANNESBURG)

Case Number: 28609/2016

Not reportable

Not of interest to other judges

Revised.

13 September 2017

In the matter between:

LESSING, THOMAS SAREL APPLICANT

and

SERENGETI GOLF AND WILDLIFE ESTATE RESPONDENT

REASONS

[1] I dealt with this matter in urgent court on 30 August 2016 and granted the order set out below with reasons to follow. I set out my reasons hereunder.

ORDER

1. The Respondent, any of its employees and/or security personnel are interdicted and restrained from harassing and or discriminating

against the Applicant and/or his mother and/or any of his visitors.

2. The Respondent is to forthwith but within two (2) hours of service of this Court Order on the Respondent and at the Respondent's own costs reinstate the Applicant's and his mother's:

2.1. free and undisturbed access to the immovable property described as Erf 215 Witfontein Extension 25, situated at 2 Tinderwood Crescent in the Serengeti Gold and Wildlife Property Development (hereinafter

referred to as "the property ')

2.2. access cards to the property; and

2.3. biometric access to the property.

3. The Respondent is to allow the Applicant free and undisturbed access to the Respondent's:-

3.1 1gym, sport fields and facilities;

3.2 conservation area and any of trails and/or roads; and

3.3 meetings of members

4. The Respondent is to pay the costs of its application on attorneys and own client scale

[2] The applicant is a resident owner at Serengeti Golf and Wildlife Estate. Him and his mother gain access to the estate through a security gate using access cards. The security gate is controlled on behalf of the respondent by an independent security provider. Until 31 August 2016, his mother and he enjoyed secure and unrestricted access to the estate via the security gate using their access cards when they were dispossessed of their right to secure and unrestricted access to the estate. He alleges that this was done without his consent or legal process.

[3] In its answering affidavit, the respondent admits denying the applicant and his mother access to the estate using access cards.

However, it denies that the applicant and his mother have been spoliated as they are still able to access the estate following the protocol designated for visitors. It contends that it was contractually entitled to deprive the applicant and his mother use of the card access system and other privileges such as use of the club and gym facilities. It further contended that restoring the card access system will only restore some comfort to the applicant. The reasons it advanced for resorting to this measure is the applicant's bad standing with regards to levies in respect of which an amount of R1,3 million inclusive of interest and untaxed attorney and own client fees is outstanding. After correspondence from the applicant's attorney, the Respondent responded to them in letter dated 19 August 2016 wherein the amount owed in respect of levies was indicated to be R61, 912.87 in. However, in its answering affidavit, it states that the applicant only owes an amount of R33, 037.07 in levies. It also states that in terms of its delinquency policy, it was entitled to restrict the applicant and his mother's card access to the estate as well as suspend them from using other privileges in the estate. This amount is reflected on a statement attached to the respondent's answering affidavit. It is dated 23 August 2016, some 5 days after the respondent's and his mother's card access to the estate was restricted.

[4] There is doubt whether the applicant's delinquent policy was in place when the respondent addressed the applicant's non-compliance with its rules in a letter dated 1 August 2016 because no reference is made to such a policy in the letter. The only reference is to the estate rules. To its answering affidavit the respondent attached a board resolution dated 22 August 2016, referenced to as item 2/EM (23/06/2016) Financial Committee, reflecting the approval of the respondent's Delinquent Policy by its board of trustees, to be implemented from 1 July 2016. The minutes of the said board meeting, evidencing the discussion of this agenda item and the approval of the said policy by the board are not attached. Also attached to the answering affidavit is the Delinquent Policy, dated 17 May 2016 and approved by the Finance Committee. On the policy, board approval and the date of such approval is not indicated. The respondent further alleged that approval of the policy was communicated on the respondent's portal. Proof of such communication is not attached to the answering affidavit. In the premises, I am not satisfied that the Delinquency Policy was approved by the respondent's board as required by the Respondent's rule. Even the policy was approved by the board, when it restricted the applicant's access and suspended his rights to use the estate communal amenities, the respondent acted in breach of the said policy because on its own version, compliance with the collection steps set out in the policy does not appear to have been followed. Such compliance is not reflected in its letter to the applicant dated 1 August 2016 or in its answering affidavit. In the premises, the respondent's restriction of the applicant and his mother's unrestricted card access to the estate amounts to unlawful dispossession of unrestricted card access to the estate which they hitherto enjoyed. This is a quasi-possessional right worthy of protection under the mandament van spolie remedy.[1] That the applicant and his mother could still access the estate following the visitors' protocol does not destruct from the deprivation of their quasi-possessional right.[2]

[5] From the papers filed by the parties, there appears to be an acrimonial relationship between the applicant and the deponent to the respondent's answering affidavit Hannes Hendriks (Hendriks). On 15 July 2015, the applicant obtained a final protection order in terms of The Protection from Harassment Act No 17 of 2011 against Hendriks from the Kempton Park Magistrates' Court under case number 159/19. In terms of the protection order, Hendriks is prohibited from verbally or physically harassing and emotionally abusing the applicant. He is also interdicted from not directly communicating with the applicant. Hendriks is appealing that order. In the respondent's answering affidavit, he stated that the applicant was bullied as a child, is whining, immature and juvenile. Hendricks is the respondent's estate manager. Notably, in its answering affidavit, the respondent does not deny the acrimony in the relationship between the applicant and Hendriks. In the light of the innuendo statements made by Hendriks against the appellant as reflected above, the apparent abuse of power by the respondent as evidenced by the manner in which the respondent spoliated the applicant in this matter, the applicant has made out a proper case for an order set out in paragraph 3 of the order granted

on 30 August 2016.

[6] The respondent took the law in its own hands, making it necessary for the applicant to bring this application. Therefore there is no reason why the applicant should be out of costs. It is for that reason that I allowed the applicant costs on the attorney and client scale.

__________________

L T MODIBA

JUDGE OF THE HIGH COURT

Counsel for the Plaintiff: R Booysens

Instructed by: Dewey Hertzberg Levy INC

Counsel for the Defendant: B Heystak

Instructed by: Van Rensburg Schoon

INC

Date of hearing: 30 August 2016

Date of judgment: 13 September 2016

[1] Fisher v Body Corporate Misty Bay 2012 (4) SA 215 (GNP) par 24 and Singh and another v Mount Edgecombe Country Club Estate Management Associati on [2016] ZAKZDHC 6 (4 February 2016) paragraphs 99 and 106-130.

[2] Mount Edgecombe par 125-126.