REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 17272/20

(1)	REPORTABLE: YES/NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED: YES/NO

 Date: ……………		.......................... 

In the matter between:

ELIAS WILLIAM MASANGO	1st Applicant
MASANGO INDUSTRIES (PTY) LTD	2nd Applicant
NELSON JALI	3rd Applicant
QEDA NGCOBO	4th Applicant
STEVE MILLION	5th Applicant
MDUDUZI MDLULI	6th Applicant
ERNEST MATHONSI	7th Applicant
NKOSIKHONA MNGUNI	8th Applicant
MISHECK SPONDO	9th Applicant
NOSIPHO NGUBANE	10th Applicant
TROMPIES NGWENYA	11th Applicant
ANELEJACU	12th Applicant
VESI MBUKISENI	13th Applicant
BONGANI NGUBANE	14th Applicant
MUSA HLATSWA YO	15th Applicant
ALFRED DAMBUZA	16th Applicant
NKULULEKO NDLOVU	17th Applicant
THEMBA SHOKA	18th Applicant
BERNAD NDABA	19th Applicant
FIGHTON NYONI	20th Applicant
MANDLA MPOFU	21st Applicant
MZIWENDODA KHANYE	22nd Applicant
TAWANDA KUNZA	23rd Applicant
NOKUTHULA NDLOVU	24th Applicant
JENET NDULINI	25th Applicant
LIHLE NDULINI	26th Applicant
HLUPHEPH DORIS SIBIYA	27th Applicant
MANDOZA LEBELE	28th Applicant
REANARD MUHAMED	29th Applicant
KWANELE MPOFU	30th Applicant
QHINGA NTSHAYINTSHAY	31st Applicant
NGQQABUTHO MHLANGA	32nd Applicant
BHEKI JALI	33rd Applicant
THABISILE ZULU	34th Applicant
LENARD BANAD	35th Applicant
NDUDUE NDEBELE	36th Applicant
THAMI KHUMALO	37th Applicant
CIPHO MUCHARI	38th Applicant
O'BRIAN NGUENYA	39th Applicant

and

SUNSET BAY TRADING 156 (PTY) LTD	First Respondent
SIBONGINKOSI MAGAGULA	Second Respondent
NATHAN LEN	Third Respondent

	

JUDGMENT

STRYDOM J :
[1]	This is a spoliation application brought by 39 applicants (hereinafter referred to as “the applicants”) against the first respondent (hereinafter referred to as “Sunset Bay”) and the second and third respondents.
[2]	Apart from a prayer directing that this application be dealt with as one of urgency, the applicants are seeking the following relief:
“2. That the respondents, forthwith restore occupation of the property, situated next to the Francois Oberholzer M2 Freeway, on the southern side and borders on Dennis Road and Wemmerpan Road, Village Main, Johannesburg (‘the property’), to the 1st to 39th applicants.
3.	That the respondents be ordered, within 24 hours of this order, to deliver and erect 22 x six-person tents for the 3rd to 39th applicants to reside in and deliver and erect 5 x portable cabin toilets fitted with wash basins + water and 5 x portable cabin showers + water, at the property, until the respondents have rebuilt the 3rd to 39th applicants’ 22 residences and communicable ablution facilities with five showers, five bathrooms, five toilets, five washing basins, laundry facilities and storage rooms, at the property, at the respondents’ own cost.
4.	That the respondents be ordered, within 14 days of this order, to rebuild the 3rd to 39th applicants’ 22 residences and communal ablution facilities with the five showers, five bathrooms, five toilets, five washing basins, laundry facilities and storage rooms, at the property.
5.	That the respondents and any one on their behalf, are interdicted and restrained from damaging and/or demolishing the residences and communal ablution facilities of the 3rd to 39th applicants at the property and from harassing and/or evicting the 3rd to 39th applicants from the property. 
6.	That costs of this application be paid by the respondents, jointly and severally, the one paying the other to be absolved on the scale as between attorney and client.”
[3]	There has been ongoing litigation between some of the applicants and some of the respondents pertaining to the property which is owned by Sunset Bay.  On this property was erected 22 rooms and communal ablution facilities with five showers, five bathrooms, five toilets, five washing basins, laundry facilities and storage rooms (“the structures”).
[4]	It is alleged by the applicants that they were in undisturbed possession of these structures on the property and that they were unlawfully deprived from their possession by the respondents on 18 September 2020.  On this date, according to the applicants, unknown people came in two minibus taxis and totally demolished the structures.  Photographs were attached to the founding papers evidencing the total destruction which had rendered the units to mere rubble and thereby the applicants were deprived of their undisturbed possession.
[5]	It was common cause that there was ongoing litigation for the eviction of the alleged unlawful occupiers and that the demolition of the structures on the property was unlawful.
[6]	The only issue as far as the spoliation application is concerned, is who was responsible for the destruction and, if it is to be found to be the respondents, what remedy should be ordered, if any.
[7]	Before dealing with the merits of the application the court should first deal with the urgency of the matter as this application was brought on an extremely urgent basis with very short times afforded to the respondents to file answering affidavits.  
Urgency
[8]	According to the applicants, the second applicant, Mr Magagula, became aware of the demolition of the structures, which took place on 18 September 2020, on Monday 21 September 2020 on his return from an area where there was no cell phone reception.
[9]	On Monday 21 September 2020, during the late afternoon, papers were emailed to the respondents’ attorney.  The amended notice of motion indicated that the matter is set down in this court for hearing on Wednesday 23 September 2020, at 10h00.  The respondents were required to file a notice of their intention to oppose the application by 12h00 on 22 September 2020 and file an answering affidavit on or before 9am on 23 September 2020, an hour before the hearing.
[10]	The applicants basis for the extreme urgency was premised on the fact that their primary residences and that of their families were demolished leaving them stranded.  They required urgent redress immediately as should they bring the application in ordinary cause their need of housing would not be satisfied in the interim.  
[11]	The applicants failed to set out any reasons why the application was not prepared and timelines set for a complete application, ready and paginated by 12 noon on Thursday, to be set down for hearing on the next Tuesday as required by paragraph 9.23 of the Practice Manual of this court (“the Practice Manual”).  The applicants failed to explain in any detail why it was set down with effectively one court day’s notice.
[12]	Despite the short notice, the respondents however managed to file an answering affidavit in the short time set.  No replying affidavit was filed.  
[13]	I am of the view that the applicants breached the requirements set in the Practice Manual but, despite this, this court is inclined to condone the applicants’ failure for the obvious reason that the applicants were rendered without housing and shelter through unlawful actions by people who demolished structures on the property.
Background circumstances
[14]	Before dealing with the merits of the matter, a brief synopsis of the history of previous and ongoing litigation between the parties should be considered.  Papers in these matters filed in this court pertaining to the other applications were uploaded on caselines although it was not properly cross-referenced in the current founding affidavit.  
14.1	During or about February 2019, Sunset Bay launched an eviction application pertaining to the property against the first and second applicants (therein cited as the first and second respondents).  An order under Case No. 4269/19 was granted on 5 March 2019.  
14.2	During or about April 2019, 27 applicants brought an application under the same case number of 4269/10 for the stay of execution pending a rescission application now also citing the Sheriff of the High Court, Johannesburg Central.  Pursuant to this application a written undertaking was provided by Sunset Bay not to execute pending the finalisation of the rescission application mentioned in Part B of that application.  This application is still pending.
14.3	On or about August 2019, Sunset Bay launched a further application for eviction of 33 respondents (the majority of who are the same as in the current application) from Portion 97 of the Farm Turffontein.  This application became opposed and an answering affidavit was filed.  This litigation is also still pending.
14.4	During or about July 2020, Sunset Bay, with the current second and third respondents, filed an urgent application under Case No. 17272/20 in which the first respondent was cited as follows:
“The unknown individuals who entered and/or trespassed and/or attempted to settle on the immovable property known as Unit 1 and 2 of Remaining Extent of Portion 51 (a portion of portion 44) of the Farm Turffontein 96, Registration Division IR, the Province of Gauteng.”
14.5	The second respondent was Elias William Masango (the first applicant in the current application), with the police being the third and fourth respondents.  In this application, an order was obtained from this court from my brother Spilg J in the form of a rule nisi ordering the first and second respondents to immediately restore the possession of two units on this property to Sunset Bay and Mr Magagula (the second respondent in this current application).
14.6	The respondents in that application filed an answering affidavit and that application is also still pending. This matter was on the court roll on 26 August 2020 and the rule was extended to 14 October 2020. 
[15]	Whilst the abovementioned matters were still pending, the structures were demolished and the current application was launched, referred to as a “counter application”  under the same case number as the matter in which Judge Spilg made an order despite the fact that all the parties in the main application and the counter application do not correspond.
[16]	The applicant also served a notice in terms of which the return date of 14 October 2020 was anticipated, to be heard in the urgent court for hearing on 23 September 2020.  
[17]	In my view, the respondents correctly pointed out that the return date of the rule nisi could not be anticipated after an extension was ordered with the consent of a party who now wants a hearing on an earlier date.
[18]	During argument before this court, counsel for the applicants, Mr van der Merwe, abandoned the notice of anticipation and continued to argue the spoliation application, not as a counter application but as a substantive application.
The spoliation application 
[19]	It is trite that in order to obtain a spoliation order, two allegations must be made and proven:
19.1	That the applicants were in undisturbed possession of the property; and
19.2	That the respondents deprived them of their possession forcibly or wrongfully against their consent. 
[20]	As far as the first requirement is concerned, the respondent denied that the applicants were in possession of the property and the structures thereon.  The denial is bare and unsubstantiated.  In previous litigation the same parties featured and at least two of the current respondents claimed for the eviction of the current applicants.  The court is satisfied that the applicants have shown on a balance of probabilities that they were the occupants of the structures on the property and that they were deprived of their possession in an unlawful manner without a court order. 
[21]	The situation pertaining to the so called units 1 and 2 is on a somewhat different footing. Mr Magagula, the second respondent, obtained possession of these units but was spoiliated. This led to the court order made by my brother Spilg J, in terms of which he ordered, pending a return day, for the restoration of possession of these units to Sunset Bay and Mr Magagula by Mr Masango, the current first applicant. It is not clear on the papers before me to what extent this order was executed but what transpired thereafter was that some unknown people came and demolished all units, including units 1 and 2 and effectively evicted the occupants of all units.  The question remains who was responsible for this. 
Who was responsible for depriving the applicants of their possession?
[22]	In the founding affidavit, it is alleged that two taxis filled with persons (the “demolishers”) appointed by the agents of Sunset Bay obtained these unknown people on two occasions to demolish the houses of the applicants.  The agents are the second and third respondents.  Apart from this allegation, there is no further evidence to be found in the founding affidavit as to who was responsible for the destruction.
[23]	On 22 September 2020, at 4:33pm, the applicants emailed a confirmatory affidavit of one Matikwane Mgobodi Mathews to the respondents’ attorney.  There is no reference to this affidavit in the founding papers and the status of this affidavit, referred to as a “confirmatory affidavit”,  will be dealt with later in this judgment.  The answering affidavit filed by the respondents did not deal with this affidavit.  The reason is obvious.  This affidavit was not referred to in the founding affidavit.  
[24]	In the answering affidavit, deposed to by Mr Kevin Garth Schroeder, a director of Sunset Bay, reference was made to two confirmatory affidavits deposed to by the second and third respondents. These affidavits were not attached to the answering affidavit.  During the hearing of this matter the court was informed that this was an oversight. The court ruled that these affidavits could be uploaded on to CaseLines and once this was happened same would form part of the papers.  This was subsequently done and copies thereof were also emailed to the court’s registrar.
[25]	In the answering affidavit it was admitted that the second and third respondents were acting as the agents of Sunset Bay.  The respondents however denied that they were responsible for demolishing the structures.  It is asserted that the respondents all along attempted to amicably and peacefully negotiate with the occupiers of the property to vacate.  Two agreements evidencing that occupiers were paid money to leave units 1 and 2 were attached to the answering affidavit.
[26]	It is further averred that on 15 September 2020, which was three days after the initial partial demolition of the structures, Sunset Bay’s attorneys wrote to the attorneys of the applicants and stated that Sunset Bay had no knowledge of the men that attended at the premises and demolished the structures. It was further that caused denied that the third respondent instructed anyone to demolish the structures.  Further, that the respondents at all times acted lawfully and respected the rule of law.  It was pointed out that Mr Masango is the person who acted unlawfully by depriving the occupants of units 1 and 2 from their undisturbed possession and that a complaint has been laid with the South African Police Service.
[27]	The question for consideration by this court is if the applicants, on a balance of probabilities, have proven that it was the respondents, acting jointly, who were responsible for sending the people to the property to demolish the structures.
[28]	Before the probabilities can be considered the facts should first be established.   Clearly there exists a dispute of fact in this matter, which in motion proceedings would be decided on the version of the respondents,  together with the undisputed facts contained in the founding affidavit, unless it can be said that the denial by the respondents of a fact alleged by the applicant is not such as to raise a real, genuine or bona fide dispute of fact.
[29]	To consider this, the starting point is to consider the facts alleged by the applicants.  It is stated that the second and third respondents, the agents of Sunset Bay, appointed the people in the taxis to demolish the structures.  No factual foundation is laid for this allegation, which is stated as a fact.  This allegation, in my view, is nothing more than a conclusion based on speculation.  If this statement had its origin in hearsay evidence, nothing was stated to this effect in the founding affidavit.  The veracity of this allegation stands unsupported by any evidence.  Before reliance can be placed on a statement contained in an affidavit the court must be satisfied by the inherent credibility of the applicants’ factual averment.
[30]	The respondents specifically denied this statement made on behalf of the applicants.  Mr Van der Merwe, on behalf of the applicants, argued that the statements about the involvement of the respondents required more than a bare denial.  He referred the court to the well known case of Soffiantini v Mould and urged that the court to take a robust, common sense approach to this dispute on motion.
[31]	In the matter of Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd it was found that the absence of any positive evidence possessed by a respondent directly contradicting the applicant’s main allegations does not render the matter free of a real dispute of fact.  In my view, should a respondent possess no more facts to counter an allegation save to deny same, it cannot be expected of a respondent to say more.  For instance, if a respondent is accused of demolishing a structure but knows nothing about it, it cannot be expected of such a respondent to place further facts before the, save to deny the allegation.
[32]	Accordingly, I am of the view that the bare denial of the respondents would create a real factual dispute which cannot be decided on the papers before this court.  The parties, for obvious reason that the matter was urgent, never asked this court to refer the matter for the hearing of oral evidence.
[33]	In the Plascon Evans matter the court indicated that there may be exceptions to the general rule, as, for example, where the allegations or denials of the respondent are so far fetched or clearly untenable that the court is justified in rejecting them merely on the papers. In such a case the version of the applicants will prevail. To consider this a court will have to weigh the probabilities in light of common cause or undisputed facts. In casu, the question may rightly be asked who else would have had an interest in the destruction of the structures but the applicants?  On the other hand, the court must consider that the respondents, before the destruction, did not revert to self-help and sought the intervention of the courts.  Why would the respondents now whilst litigation is still pending take the law into their own hands? To merely accept that the respondents were the only interested parties in the property and the housing would be speculation.
[34]	The applicants also emailed a further affidavit to the respondents’ attorney after the application was sent to the respondent. This affidavit was referred to as a “confirmatory affidavit” but has not been referred to in the founding affidavit. It was deposed to by an unknown person who is not one of the applicants. In this affidavit the deponent refers to meetings with the third respondent who needed assistance to evict the people from the place occupied by Mr Masango, the first applicant. It is stated that nothing came about as a result of the meeting. 
[35]	As this affidavit was not part of the application when launched the respondents never answered the allegations made therein. An applicant must establish its case in the founding affidavit. As these further allegations were not contained in the founding affidavit the court cannot place reliance thereon in deciding this application. Moreover, the allegations contained in the affidavit is not such to infer that the respondents were responsible for the destruction of the structures. 
[36]	 One final determination must be made and that is whether the respondents’ denial is far fetched, or clearly untenable, that the court is justified to reject their denial on the papers. To consider this the probabilities come into the fray.  Against the respondent will be the fact that they wanted the applicants out of the structures but this is countered by the clear indication that the respondents have been following due processes for the eviction of the applicants for quite some time.  The court cannot conclude that the denial of the respondents are so far fetched or clearly untenable that the court is justified in rejecting their denial merely on the papers.  This, in my view, is not a case where the court should take a robust, common sense approach as insufficient particularity have been provided by the applicants to come to a factual finding.
[37]	The applicants have shown that their possession of the property was unlawfully taken away from them but failed to prove that the respondents were responsible for this. Consequently, the respondents cannot be ordered to restore occupation of the property as prayed in prayer 2 of the notice of motion or be ordered to provide temporary housing or reconstruction of the structures. The application should be dismissed and cost should follow the result.
[38]	 The following order is made:
The application is dismissed with costs. 

_______________
R. STRYDOM
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION
JOHANNESBURG

Date of hearing:			23 September 2020
Date of Judgment:			01 October 2020
Counsel for the Applicant:	Adv. Van der Merwe
Counsel for the Respondent:	Adv. Bester