Patrick v Pillay (6736/2007) [2009] ZAKZDHC 24 (16 April 2009)

IN THE

HIGH COURT OF SOUTH AFRICA

DURBAN AND COAST LOCAL DIVISION

CASE NO. :6736/2007

In the matter between :

NORMAN

MARK PATRICK APPLICANT

and

KOGI PILLAY RESPONDENT

JUDGMENT

Date delivered: 16 April 2008

SISHI J

[1] On 21 June 2007, the Applicant approached this court by way of an urgent application, wherein he sought the following order:

That the Respondent shall forthwith restore to the Applicant the residential premises situated at Flat 10, Adelia Court, 54 Vernon Road, Musgrave, Durban [hereinafter referred to as the premises] and, in effect, that the Respondent shall give vacant possession and occupation of the premises to the Applicant;

In the event of the Respondent failing or refusing to comply with the order in terms of paragraph 1.1 above, the Sheriff or his lawful Deputy is hereby directed and authorised to do all things and to take all steps necessary, including but not necessarily being limited to the breaking of any lock or locks securing the premises, for the restoration of the premises to the Applicant;

That the costs of this application shall be paid by the Respondent on the scale as between Attorney and Client.

[2] That the orders prayed in paragraphs 1.1 and 1.2 hereof are to operate forthwith as interim orders pending the return date of the rule nisi.

The order was granted as set out above and this the return day of the rule nisi.

[3] In the founding affidavit, the Applicant coached his claim for relief under common law, Mandament Van Spolie but he also expressly invokes the occupier’s procedural protection under the Prevention of Illegal Eviction from an Unlawful Occupation of Land Act No.19 of 1998 ( the PIE).

[4] The Applicant and the Respondent had been lovers for more than 20 years and had leaved in Swaziland until 2005. Both parties had been conducting business in Swaziland until the year 2005 when the Applicant returned and resided in the premises in question. It appears that the Respondent still conducts business in Swaziland. The ownership of the flat in question appears to be in dispute although the Applicant appears to concede that although he initially bought the flat it was, however, transferred into the name of Regal international (Pty) Ltd (the company) which initially had the Respondent and the Applicant as Shareholders and Directors. At some stage, the shareholding of this company changed and the Respondent and his son became the only shareholders of the said company. The flat appears to be owned by this company.

[5] The Applicant alleges that when he returned to Durban in 2005, it was by Mutual agreement between himself that the Respondent that he resided at the said premises. This is also in dispute between the parties as the Respondent alleges that she allowed the Applicant to leave in the said premises only for a period of one month. The Applicant alleges that at the time he launched this application, he was in peaceful, lawful and undisturbed possession and occupation of the said premises. He also alleges that the Respondent did not follow a due process of law in dispossessing him of the said premises. The Respondent, however, disputes that the Applicant was in peaceful, lawful, undisturbed possession and occupation of the said premises.

[6] It is clear from the answering affidavit that the parties ended their relationship and the Respondent alleges that she only allowed him to stay in the premises for the period of one month when he returned to the Republic of South Africa and the Applicant refused to vacate the premises at the expiration of the period of one month.

[7] The Applicant alleges in the founding affidavit that since year 2005 and until June15, 2007 he had been in peaceful, lawful and undisturbed possession and occupation of the said premises. On 15 June 2007, the Respondent obtained an order against him in terms of the Domestic Violence Act No.116 of 1998 from the Durban Magistrate’s Court. At about 12h30 Friday, 15 June 2007, the Respondent came to his place of employment at North Coast Road, Durban, in the company of certain police officers who handed over to him the papers in the Domestic Violence Interdict. He alleges that in terms of the Domestic Violence Interdict, he is forbidden, inter alia, from entering the premises. He alleges that he is still in possession of the keys to the premises and verily believes that the

Respondent has changed the locks to the premises. All his clothing, personal belongings, and is car are still in the said premises.

[8] An order in terms of the Domestic Violence Act has not been annexed to the Applicant’s founding affidavit. The Respondent admitted applying for the said order but denied that the said order was issued. Even in the Applicant’s Heads of Argument, the Applicant alleges that the Respondent was deceitful in obtaining an order on 15 June 2007 against him in terms of the Domestic Violence Act to prevent the Applicant from returning to the premises. It is only in the replying affidavit that the Applicant alleges that he was

under the bona fide belief that the Respondent had obtained an interim protection order on 15 June 2006, and that on the same date

the police officers told him in the presence of the Respondent that he would be arrested if he goes back to the premises. What is annexed to the Applicant’s replying affidavit is a set of the Application papers for the said order in the Magistrate’s Court.

[9] What is clear from these papers is that no such order was obtained by the Respondent from the Magistrate’s Court and Counsel

for the Applicant conceded that such an order was not obtained despite what is said out in the founding affidavit and in the Heads

of Argument. Furthermore, it is only in the replying affidavit that the Applicant alleges that the police told him in the present of the Respondent that he would be arrested if he goes back to his premises. There is no such allegation in the founding affidavit.

[10] The Applicant’s case has to be made out in the founding affidavit. In the founding affidavit, he has alleged that in terms of the Domestic Violence Interdict, he is forbidden from entering the said premises. It is clear from what is set out above that no Domestic Violence Interdict was obtained against him and that this allegation is misleading. It was submitted on behalf of the Respondent that the Applicant’s application is based squarely on the fact that the said order forbids the Applicant to entering the premises when in truth, it does not. Although it is in dispute that the Applicant was in peaceful, lawful and undisturbed possession and occupation of the said premises, I will assume for the purpose of this case that this was the position.

[11] In Tswelopele Non-profit organisation vs City of Tshwane Metropolitan Municipality and Others 2007[6] SA 511[SCA] at 520 B-C. Cameron JA, pointed out that the remedy of Mandament Van Spolie is available to anyone who is elicitly deprived of property, he is entitled to be restored to possession before anything else is debated or decided. Even unlawful possessor, a fraud, a thief, or a robber is entitled to a mandament’s protection.

[12] In Yeko vs Qana 1973[4] SA 735 [AD] at 739 G, the Court pointed out that possession which must be proved is not possession in the judicial sense; it may be enough if the holding by the Applicant was with intention of securing some benefit for himself. In order to obtain a spoliation order, the onus is on the Applicant to prove the required possession, and that he was unlawfully deprived of some possession. The fundamental principle of the remedy is that no one is allowed to take the law into his own hands. All that the spoliators has to prove is the possession of a kind which warrants the protection which is accorded by the remedy, and that he was unlawfully ousted.

[13] I have already indicated above that for the purposes of this case, it will be assumed that the Applicant had the pre-requisite possession. The only issue which remain, is whether the Applicant was unlawfully deprived of such possession. It is clear from what is set out about that the Applicant has failed to show that he was unlawfully deprived of such possession. He alleges that in terms of the Domestic Violence Interdict he was forbidden from entering the said premises. It has already been shown that no such interdict against him existed and that it was only in the replying affidavit that he indicated that the police told him that they would arrest him if he returns to the said premises. In the absence of such Domestic Violence Interdict, there is no cause of action in this matter.

[14] There is nothing on the papers to suggest that the Respondent committed any act of spoliation in this matter. What appears in this application is mainly the abuse of court process. There are a number of irrelevant issues and personal issues which are dealt with in the Applicant’s papers, which are not relevant for the purposes of determining the issue in this matter.

[15] The Respondent also argued that the application was not urgent and that it ought to have been struck from the roll. It is trite law that when the application lacks the requisite elements or degree of urgency, the Court can for that reason, decline to exercise its powers under Rule 6(12)(a). The matter is then not properly on the roll and it declines to her it. The appropriate order is generally to strike the application from the roll. (See Commissioner, SARS vs Hawker Air Services (Pty) Ltd and Others [2006] ZASCA 51; 2006 (4) SA 292 (SCA) at page 299 G-H.

[16] An interim relief in this matter was granted on 21 June 2007, the matter was argued on 28 February 2008, the Respondent argued that the matter was not urgent. Whether or not the matter was not urgent, then is of no moment now, the issue is whether or not the rule is to be confirmed or discharged.

[17] What is clear from the facts of this case is that the Applicant had not been deprived of the requisite possession. The Applicant has therefore failed to make out a case for the confirmation of the rule.

[18] In the premises, the Applicant’s application falls to be dismissed with costs. In the circumstances, the Respondent has also asked for punitive costs in this matter. As indicated above, the Applicant’s conduct in this matter amounts to the abuse of the Court’s process. There is no reason why the Applicant should not be visited with punitive costs order.

In the circumstances, I make the following order:

The rule issued on 21 June 2007 is discharged;

The Application is dismissed.

The Applicant is ordered to pay the costs of this application on a Attorney and Client scale and such costs to include the reserved

costs of 26 July 2007.

________________

_______

Applicant’s Counsel : Adv K Naidu

Instructed by : Logan Naidoo & Associates

121/123 Field Street

Durban

Respondent’s Counsel : Adv D.S. Rorick

Instructed by : Retha Meering Attorneys

8 on Eight Avenue

Morningside