Makeshift 1190 (Pty) Ltd v Cilliers

• Jurisdiction: South Africa
• Judge: O L Rogers and Cloete J
• Judgment Date: 25 May 2020
• Docket Number: A38/2020
• Hearing Date: 08 May 2020
• Court: Western Cape Division
• Citation: 2020 JDR 0845 (WCC)

Rogers J (Cloete J concurring):

[1]

At issue in this appeal is whether the court a quo, the Riversdale Magistrate's Court ('the RMC'), erred and acted beyond its powers in making various orders pursuant to a spoliation application launched by the present respondent against the present appellant. Due to the Covid-19 lockdown, the parties agreed that we could adjudicate the appeal on the basis of the record and heads of argument. We reserved the right to call for oral submissions, but in the event we have found it unnecessary to do so.

[2]

The appellant's heads of argument were filed very late. An explanation was furnished in a substantive application for condonation. Although aspects of the explanation are open to criticism, this is not a case in which we would non-suit the appellant. The respondent in the appeal was afforded an opportunity to file supplementary heads. Because we are adjudicating the appeal without an oral hearing, the lateness of the appellant's heads has not resulted in a day's wasted costs.

[3]

I should mention that Mr Ferreira, who was briefed to appear for respondent in the appeal and drafted the supplementary heads, was not the author of the main heads filed on the respondent's behalf.

[4]

The appellant, Makeshift 1190 (Pty) Ltd ('Makeshift'), is the owner of a farm in the Riversdale area. The respondent, Colleen Cilliers, occupies a building on the farm together with her husband, Tom, and their children. I shall refer to this building as 'the store', in keeping with terminology used in the papers. Since it will be necessary to make reference to other members of the Cilliers family, I

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Rogers J (Cloete J concurring)

shall refer to the respondent and her husband by their first names, meaning no disrespect. Tom and his family occupy the store as a home. On Makeshift's version, Tom and the family moved into the store in April 2015.

[5]

The shares in Makeshift used to belong to Tom's father, Martinus. Until his death in October 2019, Martinus resided in another dwelling on the farm.

[6]

In December 2014 Martinus sold the Makeshift shares to Tom, but a dispute about performance of the sale led to Martinus selling 75% of the shares to Tom's siblings, Humboldt Cilliers, Rykie Erasmus and Salome Doman. Precisely what happened to that sale is unclear, because in March 2018 Martinus transferred all the shares in Makeshift to Humboldt and Rykie in equal shares.

[7]

The collapse of the sale of Makeshift to Tom led to, or was perhaps indicative of, a fractured relationship between him on the one hand and his father and siblings on the other. There were various legal proceedings apart from those at issue in the present appeal:

(a)

In 2016 Tom obtained from the RMC an interim protection order against Martinus which was still pending at the time of the alleged spoliation.

(b)

In 2017 Tom launched an application in this court for specific performance of the sale agreement. In October 2017 Tom's attorneys notified the attorneys acting for Tom's father and siblings that Tom would be withdrawing the application and issuing summons for the same relief. (This subsequently happened, and the action is pending.)

(c)

Also in 2017, Makeshift launched an application in this court for Tom's eviction. Engers AJ dismissed the application on the basis that because of the pending dispute about control of Makeshift, it could not be concluded that Tom was an unlawful occupier.

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[8]

The store was served by Eskom electricity. The Eskom contract was in Makeshift's name but Tom paid the bills, at least since the time he began occupying the store. The respondents in the court a quo stated that in July 2016 Martinus installed solar panels on the roof of his dwelling, which provided sufficient electricity for his own requirements and those of the farm. On the other hand, there is evidence from Colleen that she encountered an electrician on the farm on 31 October 2017, who said that he was there to convert Martinus' electrical supply and that this entailed a termination of the Eskom supply. At any rate, it seems that for some time before December 2017 Martinus had not been dependent on Eskom for electricity.

[9]

On 20 or 21 December 2017 the Eskom electricity on the farm was disconnected. The only part of the farm served by Eskom electricity at that time was the store and its related facilities. The electricity was disconnected because Makeshift had cancelled its contract with Eskom. As a result of this cancellation, Eskom sealed the electricity box on the farm.

[10]

On 21 December 2017, at which time Tom was working on a mine in the Free State, Colleen launched an urgent ex parte spoliation application in the RMC, citing Makeshift and Martinus as respondents. In her founding affidavit, Colleen said that because of the prevalence of farm murders, she was very scared when the external lights were not on at night. Her husband had recently slaughtered a cow and two sheep, which were in the freezer and would go rotten without electricity.

[11]

On the same day an ex parte order was issued calling on the said respondents to show cause why final orders should not be granted (a) ordering them to remove the locks on the electricity box or to provide Colleen with a key; (b) ordering them to switch on the supply of electricity to the store or to authorise

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Colleen to do so; (c) ordering them to restore the electricity supply to the property by not later than 16:00 on 21 December 2017; (d) prohibiting them from depriving Colleen of her possession and use of electricity and water without a court order. The rule nisi was to operate as an immediate interim order pending the final determination of the application.

[12]

The respondents did not comply with the interim order. They opposed the application. The extended return day was heard in November 2018. The RMC, having seemingly raised the point mero motu, ruled that the orders sought by Colleen could not be granted without Eskom's joinder. Colleen noted an appeal against that ruling. In May 2019 this court (per Sievers AJ, Steyn J concurring) dismissed the appeal on the basis that the RMC's ruling was not an appealable order.

[13]

Colleen caused Eskom to be joined. In October 2019 Martinus died, so Makeshift became the sole respondent. The case was argued in November 2019. On 6 December 2019 the RMC granted final orders in terms of the rule nisi and ordered Makeshift to pay the costs on the attorney and client scale.

[14]

No point was taken, on the papers or in argument, that Colleen did not have standing to apply for spoliatory relief. At the time she brought the application she had factual control (detentio) of the store and its appurtenances, and clearly intended to hold it, at least in part, for her own benefit and that of her children (cf Mbuko v Mdinwa 1982 (1) SA 219 (TkSC) at 222F-H; Dlamini & another v Mavi & others 1982 (2) SA 490 (W) and cases there reviewed). It matters not that she may also have been exercising control for Tom's benefit or that she and Tom may both have had possession, because the claimant in spoliation proceedings need not have exclusive possession (Nienaber v Stuckey 1946 AD 1049 at 1056).

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[15]

The author of the main heads of argument on Colleen's behalf (not Mr Ferreira) raised two matters which it is desirable to clear out of the way at the outset.

Extension of Security of Tenure Act 62 of 1997 ('ESTA')

[16]

The first matter is his invocation of s 6(1) of ESTA as a basis on which Tom and his family were entitled to continue enjoying access to Eskom electricity, such supply having been a service agreed upon as part of their right of occupation.

[17]

This argument must be rejected, because nowhere in her papers did Colleen allege that she was relying on ESTA, and she did not allege the facts necessary to bring herself within the ambit of that legislation. (This would have included the question whether Tom and Colleen's income exceeded the prescribed amount contemplated in the definition of 'occupier' and whether their right of occupation had been lawfully terminated.) A person who asserts a claim under ESTA is relying on a substantive right to be in possession and to enjoy the agreed services. Spoliation proceedings, by contrast, are not concerned with the question whether or not the claimant enjoys the alleged right.

Authority to represent Makeshift:

[18]

The second matter is the submission that as at December 2017 Martinus was Makeshift's sole director, and that Humboldt and Rykie, who in their opposing affidavits claimed responsibility for the decision to terminate the Eskom supply, had not been empowered to do so.

[19]

This is a self-defeating argument. If it were right, it would mean that the act of spoliation was not the act of Makeshift but the act of Humboldt and Rykie, and it would follow that they, rather than the company, should have been cited as the respondents. Factually, however, I do not think that the evidence shows that

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Humboldt and Rykie were acting without their father's authority. At very least, his opposition to the application, including a confirmatory affidavit, demonstrates that he ratified Humboldt and Rykie's actions.

Possession:

[20]

I can now deal with the issue that lies at the heart of the appeal. Makeshift disputes that Colleen had possession of an electricity supply in the sense required for spoliatory relief. Makeshift places particular reliance on the recent judgment of the Supreme Court of Appeal in Eskom Holdings Soc Ltd v Masinda 2019 (5) SA 386 (SCA).

[21]

Masinda confirms that certain rights, although incorporeal, may be the subject of quasi-possession for...