IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NUMBER: 2022/3979

REPORTABLE: NO
OF INTEREST TO OTHER JUDGES: NO
REVISED. NO

In the matter between:

MASAZIE LOGISTICS (PTY) LTD 					 Applicant
(Registration Number: 2017/237353/07)

and 

SHOW PAO FAN			 				 Respondent

Heard:	16 February 2022 (Via Microsoft Teams)
Delivered:	This judgment was handed down electronically by circulation to the parties’ legal representatives via email and by being uploaded to CaseLines. The date for hand-down of the judgment is deemed to be on 18 February 2022.

JUDGMENT

THOMPSON AJ:
[1]	The Applicant launched urgent spoliation proceedings against the Respondent on 2 February 2022. The matter first was on the roll before the Honourable Madam Justice Windell on 8 February 2022. When the matter was finally called on 10 February 2022 it became clear to Windell J that the Respondent requires the services of an interpreter and postponed the matter to the urgent roll of 15 February 2022. It is doubtful whether this matter is indeed urgent due to the fact, as I will demonstrate below, it would seem as if the Applicant’s possession of the immovable property situated at 3052 Thomas Road, Vlakfontein 30IR, Benoni (“the premises”) was already wholly interfered with on, at the latest, 30 November 2021. However, due to the Applicant’s assertion that the alleged spoliation took place on 21 January 2022, I have elected to exercise my discretion to hear the matter as an urgent application in terms of Rule 6(12). 

[2]	The Respondent, in response to the application, delivered a rudimentary answering affidavit. The Applicant, in its Replying Affidavit, took issue with the answering affidavit on the basis that the commissioner of oaths could not have been satisfied that the Respondent confirms the truth and correctness of the answering affidavit as she has no grasp of the English language. At the hearing of the matter, I questioned the Respondent as to the manner in which the affidavit was drafted and commissioned. According to the Respondent the affidavit was drafted with the assistance of her son and a third party. Prior to attending to the commissioning thereof, her son read and explained the contents of the affidavit to her and she was satisfied as to the contents thereof. I also enquired from her as to whether she understood the nature and import of the oath and I was satisfied that she did.

[3]	As the answering affidavit was prepared without the assistance of a legal practitioner, I exercised my discretion to hear the Respondent by way of viva voce evidence as allowed for by Rule 6(12)(a) as read with Rule 6(5)(g). Without descending into a full-blown trial, taking into consideration the nature and purpose of the urgent court, I also permitted Ms Van Der Laarse, appearing on behalf of the Applicant, to pose questions to the Respondent.

[4]	Prior to dealing with the facts of the matter I must point out that the Respondent raised issues relating to arrear rental, termination of the lease agreement, protection orders and a fear for her safety during the course of her viva voce evidence and closing submissions. As spoliation applications only pertain to the questions (i) whether an applicant was in peaceful and undisturbed possession of the spoliated item and (ii) whether the applicant was dispossessed without its consent or due process of law, I will have no regard to such evidence and/or submissions. For greater clarity, the decision in this matter is not influenced by the extraneous and irrelevant material testified to and/or submitted by the Respondent.

[5]	The Applicant’s version is a simple and straightforward one. The Applicant points out that it has been in occupation of the premises since 30 April 2019. The Respondent admits that the Applicant was so in occupation. The Applicant alleges that its peaceful and undisturbed possession of the premises was interfered with on 21 January 2022 when the premises was rendered inaccessible by lock and chain on 21 January 2022 by the Respondent. It is further alleged that the main entrance gate of the premises was also welded shut by the Respondent. The Applicant alleges that this action by the Respondent was wrongful and had the effect of depriving the Applicant of its possession of the premises.

[6]	These allegations were sufficient to bring the Applicant within reach of obtaining a spoliation order, but for the Respondent’s version. As the Applicant seeks final relief, the matter must be determined on the Respondent’s version, unless I can find that the Respondent’s version is consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far-fetched or so clearly untenable that I am justified in rejected the Respondent’s version on the papers. As there are conflicting versions in respect of the alleged spoliation, I must decide the matter on the basis of the admitted facts advanced by the Applicant, together with the facts alleged by the Respondent.

[7]	According to the Respondent, the South African Police Services (herein after referred to interchangeably as “SAPS” or “the police”), conducted “an operation” at the premises on 30 November 2021 after having conducted surveillance of the premises on 29 and 30 November 2021. Although the Applicant does not admit the “operation”, the Applicant does confirm in its Replying Affidavit that the police did confiscate alleged stolen property from the premises. This admission is made in direct response to the allegation that “an operation” was conducted by SAPS on 29 and 30 November 2021.

[8]	According to the Respondent, no business was conducted by the Applicant at the premises thereafter. The Respondent also alleges that the police, by way of the investigating officer Tumi Williams (“Williams”), instructed her to lock the premises, which she duly did. Thus, if the version of the Respondent is to be accepted, the Applicant’s possession of the premises was already interfered with on 30 November 2021.

[9]	The Applicant tenders no real evidence to gainsay the Respondent’s evidence that the Applicant’s possession of the premises did not persist after 30 November 2021. The Applicant relies on, what can best be described, as an interpretative process of a particulars of claim whereby the Respondent is suing the Applicant for arrear rentals. In this regard the Applicant relies on the following averment in the Particulars of Claim:

“Pursuant to the provisions of the agreement of lease as aforementioned, the Defendants took occupation of the premises on the 30th of April 2019 and have been in occupation since then.”

The submission on behalf of the Applicant is that this is a clear indication that the Applicant has been in possession since April 2019 and remains in occupation of the premises after the date of 30 November 2021 when the police allegedly terminated the Applicant’s possession of the premises. This submission is based thereon that the summons was issued on 8 December 2021. What the Applicant leaves out of consideration in respect of this submission is that the Particulars of Claim was, ex facie the Particulars of Claim, drafted sometime in November 2021. The exact date is unknown as the Particulars of Claim is not finally dated with a day in respect of the November 2021 date. It is more than reasonably possible that the Particulars of Claim was signed prior to 30 November 2021 or, at best for the Applicant, on 30 November 2021 without the Respondent having informed the attorney in the rent collection matter of the most recent developments. This sequence of events, in my view, is quite probable having regard thereto that the summons was dated on 1 December 2021.

[10]	The second string in Ms Van Der Laarse’s bow amounted to an attempt to introduce hearsay evidence. According to the Applicant, its attorney made telephonic contact with Williams, who confirmed to the Applicant’s attorney that SAPS did not order that the premises be locked nor that the police locked the premises. The probative value of the evidence tendered depends upon the credibility of Williams and not that of the Applicant’s attorney, with only the latter having provided a confirmatory affidavit. Hearsay is, in the absence of an agreement to receive same, to be excluded unless the interests of justice requires its admission. Its admission, in the interests of justice, must be sought in terms of Section 3(1) of the General Law of Evidence Amendment Act (“the Hearsay Act”). Hearsay evidence not so admitted in terms of the Hearsay Act is no evidence at all. 

[11]	No case, in terms of Section 3(1) of the Hearsay Act was made out in the replying affidavit and no such case was advanced in the Applicant’s heads of argument. Ms Van Der Laarse, when I pointed out to her that the evidence sought to be relied upon constitutes hearsay evidence and is therefore inadmissible, submitted that hearsay evidence is more readily admitted in urgent application. On this score she is correct, however this does not mean that hearsay evidence will be admitted without the requirements of Section 3(1) of the Hearsay Act having been complied with. It merely means that a court, having regard to the purpose of the urgent court, will approach the admission of hearsay, in appropriate circumstances in urgent matters, properly advanced and motivated, with some degree of latitude. Otherwise stated, a proper motivation must be set out in an affidavit by the party relying on the hearsay evidence, having regard to the requirements set out in Section 3(1) of the Hearsay Act, why the interests of justice permit the admission of hearsay.

[12]	The belated admission of the hearsay evidence sought must fail on this ground alone as no such application is contained in the Applicant’s Replying Affidavit or, for that matter, its heads of argument. Yet this is not the only ground upon which the admission of the hearsay evidence must fail. Prior to the enactment of the Hearsay Act, it was incumbent on a party seeking the admission of hearsay evidence to, inter alia, assert that the deponent believes the hearsay to be correct and furnish the grounds for such belief. I can find nothing in Section 3(1) of the Hearsay Act that this requirement has been abandoned. As a matter of fact, Section 3(1)(c)(vii) of the Hearsay Act enjoins the court to have regard to any other factor which, in the opinion of the court, should be taken into account. I am of the view that a deponent who seeks to have hearsay evidence admitted must, at least, in terms of this section state that the hearsay evidence is believed to be true and set out the grounds upon which such belief is founded.

[13]	As no proper application for the admission of the hearsay evidence is before me, the exercising of my discretion in the admission of hearsay evidence does not even come into consideration.

[14]	It must also be pointed out that the Respondent testified in court that she knew no one from the Applicant had attended the premises since 30 November 2021 as her kitchen window looks out over the premises. Despite affording the Applicant an opportunity to question the Respondent on this evidence, this version by the Respondent was not challenged by way of questions being put to her in this regard nor an alternate version put to her for comment.

[15]	Turning to the date upon which the Applicant contends the spoliation occurred, 21 January 2022, the Respondent has a diametrically opposed version to that of the Applicant. According to the Respondent an incident occurred at her residence where the deponent to the Applicant’s founding affidavit, together with two other persons jumped over the locked gate and threatened her. This resulted in the police attending at the Respondent’s abode which is adjacent to the premises. According to the Respondent the main gate to the premises, which was found to have been broken open, was then welded shut by an employee of the Respondent at the instance of the police.

[16]	The Applicant made much of the fact that two employees of the Applicant is being, as the Applicant termed it, held hostage on the premises due to the main gate having been welded shut. The Applicant sought to confirm this aspect by reference to a video that was recorded evidencing that the person who made the video was, in fact, trapped inside the premises. Various problems exist for the Applicant in this regard. 

[17]	Firstly, the Respondent contends that there are no persons, employed by the Applicant, at the premises. There is no direct evidence from the Applicant to contradict this version by the Respondent and on the Plascon Evans-rule the version of the Respondent is to be accepted. It must also be borne in mind that the Respondent has testified that ingress and egress to the premises can be obtained from her kitchen, thus any person employed by the Applicant can seek the permission of the Respondent to leave the premises via her residence. Secondly, in so far there are employees of the Applicant at the premises, a mandament van spolie is not the appropriate nor the correct remedy to ensure their liberty is restored. One would rather expect a habeas corpus-type application to secure such persons’ liberty. 

[18]	Thirdly, identifiable in the closing seconds of the video, a member of SAPS is to be seen at the premises, in the presence of, inter alia, the Respondent whilst the main gate to the premises is being welded shut by the Respondent’s employee in full view of the SAPS member. In my view, the presence of the SAPS member whilst the gate is being welded shut in his full view give credence to the version of the Respondent that the premises was secured at the instance of the police. I do not have to find that this version is true in order to find for the Respondent. However, in order to find for the Applicant I need to find that this version by the Respondent is either false or untenable. I can do neither. Her version is, in my view, not far-fetched nor does it constitute bald or uncreditworthy denials.

[19]	I do not know on what basis SAPS allegedly instructed the Respondent to secure the premises. In terms of Section 20 of the Criminal Procedure Act (“the CPA”), the police may certainly seize anything which is concerned in the commission or suspected commission of an offence, which may afford evidence of the commission of an offence or is used in the commission of an offence. Section 20 of the CPA is phrased widely to include anything which is used or intended to be used or suspected to be used, or on reasonable grounds are so suspected to have been used or intended to so be used. I can see no reason why SAPS cannot enlist the services of a third party to ensure that Section 20 of the CPA is given effect to.

[20]	Ms Van Der Laarse submitted that the premises could not be seized upon by the police in such manner and that taking possession of the property by the police had to take place in terms of Prevention of Organised Crime Act (“POCA”) This submission is, in my view, misplaced. There is a vast difference between seizing anything for the purposes of procuring or securing of evidence in terms of the CPA and a preservation order sought for the purposes of confiscation of such property to the State in terms of POCA.

[21]	The onus rested on the Applicant to prove that it was in possession of the premises of the alleged spoliation, with the alleged spoliatory incident relied upon being the welding of the main gate on 21 January 2022. The Applicant also had the onus to prove that the dispossession is unlawful and at the hands of the Respondent.

[22]	In light thereof that the 

i.	attendance of the police at the premises at the end of November 2021 and the confiscation of alleged stolen goods is common cause, or at least not seriously disputed;

ii.	Respondent’s version that she could see no one from the Applicant attending at the premises after 30 November 2021 not being seriously disputed;

iii.	Applicant only relies on interpretative inferences to be drawn from terse pleaded averments in the particulars of claim for the recovery of arrear rental in order to established continued possession of the premises past 30 November 2021;

iv.	Evidence that the main gate was locked from 30 November 2021 and found broken on 21 January 2022, which was also not seriously disputed,

I am of the view that the Applicant has failed to establish that it was in peaceful and undisturbed possession of the premises on 21 January 2022.

[23]	Even if I am wrong in the aforesaid findings of fact, the Applicant also failed in proving that it was the Respondent who interfered with the Applicant’s possession of the premises. The Respondent’s version that the Applicant’s possession of the premises was disturbed by the police is not far-fetched nor can it be found, on the papers, to be false. As a matter of fact, the video introduced by the Applicant showing the attendance of the police at the premises whilst the main gate was being welded shut lends credit to the version of the Respondent.

[24]	On the evidence before me I cannot venture an opinion on the lawfulness of the police’s alleged actions and, in the absence of a challenge thereto, there is no need for me to comment on the lawfulness or otherwise of the police’s actions.

[25]	The Respondent was unrepresented throughout these proceedings and I therefore need not consider the issue of costs.

[26]	In the premises, I make the following order:

1.	The Application is dismissed.
2.	No order as to costs.

____________________
Charles Thompson
Acting Judge of the High Court 
Gauteng Local Division 

Appearances:
For the Applicant:	Adv. Yolandi van der Laarse 
Pretoria Society of Associates
Instructed by Mckenzie Van Der Merwe & Willemse

For the Respondent:	In person

Date of hearing:	16 February 2022
Date of Judgment:	18 February 2022