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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 76421/19

In the matter between:

GLORIA KIGGINDU                                                                                                 Applicant

and

THANDI NTHULI                                                                                                 Respondent

 

JUDGMENT (Ex-Tempore)

 

COLLIS J

 

INTRODUCTION:

[1] In this urgent application the relief sought by the applicant is a spoliation order.

[2] The relief is seldom claimed in action proceedings because of the urgency of the matter.

[3] In order to obtain a spoliation order, two allegations must be made and proved:

3.1 Firstly that the applicant was in possession of the property and;

3.2 that the respondent deprived him of that possession forcibly and wrongfully, against his consent. In this regard the parties are referred to the decision of Kgosana v Otto, 1991 [3] AIISA 665 W.

[4] The causa of the applicant's possession is irrelevant, e.g. whether as in the present instance there was a valid sale agreement concluded between the applicant and the previous owner. It is also irrelevant whether the respondent has a stronger right or claim to possession e.g. that the Respondent first purchased the muthi store from the previous owner for R450 000.

[5] The claim for relief under the mandament arises solely from deprivation of possession, otherwise than through legal procedure and for the restoration of that possession, ante omnia. See Viljoen v Viljoen, 2002 (2) AIISA 143T. In as far as dispossession is concerned, the applicant must allege and prove unlawful deprivation of possession by the Respondent.

[6] Now in the present instance, the applicant sets out, after she started operating the shop on the 11th of August 2019, she was approached by the respondent on the 12th of August 2019. On this day the respondent made enquiries about the previous owner called "Abu" and then she had left the shop.

[7] In her absence and illegally so, the respondent returned to the shop at around 20:00 later that evening, she locked up the shop with chains and padlocks.

[8] She thereafter returned to the shop on the 13th of August 2019, unlocked the shop to open up for an employee that she had locked inside the shop the previous night and again she proceeded to lock the shop.

[9] The shop remained closed until it was reopened on the 9^th of October 2019, where after the respondent started trading from the shop.

[10] Several attempts were made by the applicant to be restored her possession to the muthi shop, which ultimately culminated into the signing of Annexure GKS, attached to the Founding Affidavit, which the applicant avers she was coerced into signing.

 

IN OPPOSITION

[11] Now in her opposition the respondent challenges the locus standi of the applicant. She challenges it on the basis that the applicant has not concluded a lease agreement with the landlord and it is on that basis that she says the applicant has no legal standing to bring these proceedings.

[12] Secondly she attacks the validity of the sale agreement of the muthi shop, concluded between the applicant and the previous owner called "Abu". On the basis that same, this is now the sale agreement, was not signed, neither has the applicant attached proof of payment to her founding affidavit, as proof that she had paid the purchase price for the shop and its contents.

[13] Thirdly, the respondent further alleges that she was bewitched and as a result defrauded by the previous owner called "Abu" of the amount of R450 000 and two of her cellular phones which the previous owner had also taken frim her.

[14] Startlingly before this court, the respondent admitted in paragraph 13.7 of her Answering Affidavit of resorting to self-help, by taking over and control of possession of the business premises or property, until such time that the previous owner returned. As such the respondent concedes of having been in control and possession of the business premises as from the 12th of August 2019 albeit that she only resumed trading from this premises as from the 9th of October 2019.

[15] She however contends, that an agreement was reached between herself and the applicant and the family of the previous owner, to take over the muthi shop and to start trading from this muthi shop, in order to recoup her lost money, but that this agreement only occurred on the 4th of October 2019.

[16] Now as mentioned, the admission by the respondent, of taking control over the possession of the business premises, on the 12^th of August 2019, is sufficient for the applicant to have proven this requirement.

[17] Furthermore, at the time when the respondent changed the padlocks and placed the chain on the door of the shop, she had already established the applicants to have been in possession of this business premises.

[18] To the court's mind the validity of the sale agreement between the applicant and "Abu", the previous owner, is of no consequence for the relief that the applicant is seeking.

[19] It is also of no consequence that the respondent had ultimately concluded a lease agreement with the landlord to be on the premises.

[20] The evidence before this Court that remains uncontroverted, is that the applicant was in peaceful and undisturbed possession of the muthi shop when she was unlawfully deprived of such possession.

[21] Consequently this Court is satisfied that the applicant is entitled to the relief that she is seeking.

 

ORDER

[22] In the result the following order is made:

22.1 The Respondent, upon service of the order by Sheriff on her is to forthwith hand over occupation and possession to the applicant, of the Bantu Muthi Chemist, together with its stock, situated at corner Church and Lanham Street, Shop No 1, Spar Complex, Bronkhorstspruit, Gauteng Province.

22.2 In execution of this order the Sheriff of the Court, together with the Applicant and the Respondent and their legal representatives, is to compile an inventory of all stock present in the Muthi Shop, as at date 12 of August 2019. It is this trading stock which is to be returned to the Applicant.

22.3 As the Respondent is the unsuccessful party in these proceedings she is also ordered to pay the cost of the proceedings on a party and party scale.

 

 

____________________

COLLIS J

JUDGE OF THE HIGH COURT OF

SOUTH AFRICA

 

 

Appearances as follows:

Counsel for the Applicant                          : Adv. Mohlala

Attorney for the Applicant                          : Z. Ntuli Attorneys

Counsel for the Respondent                     : Mr. Fakude (Attorney)

Attorney for the Respondent                     : Ehlers Fakude Attorneys

Date of Hearing                                         : 22 & 24 October 2019

Date of Judgement                                    : 24 October 2019

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