Ntai and Others v Vereeniging Town Council and Another

• Jurisdiction: South Africa
• Judge: Centlivres CJ, Van Den Heever JA and De Beer AJA
• Judgment Date: 03 October 1953
• Citation: 1953 (4) SA 579 (A)
• Hearing Date: 16 September 1953
• Court: Appellate Division

Ntai and Others v Vereeniging Town Council and Another
1953 (4) SA 579 (A)

1953 (4) SA p579

Citation	1953 (4) SA 579 (A)
Court	Appellate Division
Judge	Centlivres CJ, Van Den Heever JA and De Beer AJA
Heard	September 16, 1953
Judgment	October 3, 1953

Flynote : Sleutelwoorde H

Magistrate's court — Court granting judgment of ejectment against holder of site permit in location — Form 34 of First Annexure to Magistrates' Courts Rules used in issuing warrant — Warrant directing messenger to remove defendant or any person 'claiming through or under him' — Warrant not invalid — Duty of messenger to place owner in unrestricted possession

1953 (4) SA p580

of his premises — Owner of location and messenger sued by sub-lessees for damages for wrongful ejectment — Owner not relying upon self-help — Messenger not liable in damages while warrant stands — As holder of permit lost his rights on ejectment no rights A remained in sub-lessees — Forms in First Annexure — Such not obligatory.

Headnote : Kopnota

Per CENTLIVRES, C.J.: Under Form 34 of the First Annexure to the Magistrates' Courts Rules of Act 32 of 1944 the messenger is entitled to remove from the premises all persons claiming through or under the defendant.

The Forms in the First Annexure are not obligatory.

B Per VAN DEN HEEVER, J.A. (DE BEER, A.J.A., concurring): Self-help exercised by an owner to recover the possession of property unlawfully withheld from him is itself not an actionable wrong automatically entitling the person possessed to damages: if it emerges that such dispossessed person is not entitled to possession the damages are nil.

Self-help is permitted only against the usurper of possession, in order C to frustrate his attempt to take possession, not against a person in quiet possession.

In an action in a magistrate's court the first respondent had obtained judgment against S, the holder of a site permit in a location, for his ejectment from certain stands on which he had erected rooms which he let to the appellants. When a Provincial Division dismissed an appeal from this decision the first respondent caused a writ to be issued D authorising and requiring the messenger (the second respondent) to put 'the plaintiff in possession of the same by removing therefrom the said defendant or any person claiming through or under him'. The messenger emptied the rooms of all the appellants and removed their possessions to a place outside the location. The appellants then sued the first and second respondents in the Supreme Court for damages suffered as the E result of an alleged wrongful ejectment. The trial Court held that the magistrate's order had been directly solely against the defendant S and had made no mention of 'any person claiming through or under him': accordingly the writ had gone beyond the judgment and was invalid. The Court held, however, that as the appellants were no longer holders of lodger's permits and as they had remained on in the location they were trespassers and the Council was entitled to remove them and their F belongings. On an appeal,

Held, per CENTLIVRES, C.J., as S had no right to occupy the premises the appellants could have no such right and could not therefore object to being removed, along with S, by the messenger.

Held, per VAN DEN HEEVER, J.A. (DE BEER, A.J.A., concurring), as the owner's right of occupation ceased when the proceedings in the G magistrate's court went against him that the sub-lessees' rights ceased as well.

Held, further, that the first respondent had not relied upon self-help.

Held, further, that an action was not maintainable against the second respondent for executing the warrant while the writ stood.

Held, further, that under the judgment the first respondent was entitled to unrestricted possession of the premises and it could only be so put when all other persons, claiming through S, were ejected.

H The decision in the Transvaal Provincial Division in Ntai and Others v Vereeniging Town Council and Another confirmed.

Case Information

Appeal from a decision in the Transvaal Provincial Division (BLACKWELL, J.). The facts appear from the judgment of VAN DEN HEEVER, J.A.

P. Lakier, for the appellants: The writ of execution as issued was invalid and of no force and effect in so far as it affected any person

1953 (4) SA p581

other than Moses Sheshe against whom first respondent had obtained judgment on its claim for ejectment. Any doubt or ambiguity in the magistrate's judgment was removed by the magistrate's reasons and by the judgment of the Provincial Division; see Voet, XLII. I. 87. A writ of execution cannot stand by itself but must be based on a judgment; see A sec. 62 (1) of Act 32 of 1944; Rule 34 (1) of the Magistrates' Court Rules. The writ must comply strictly with the judgment which warrants its issue; see van der Linden, Institutes of Holland (Bk. III, chap. IX, secs. V and VI); Huber, Jurisprudence of My Time (Gane's tr. vol. 2, chap. 40, secs. 4 and 5); Emms v Viljoen, 1947 (4) SA 78; White B Ryan & Co v Hilliard, 20 S.C. 334; Union Share Agency & Investment Ltd. (in Liquidation) v Hatton, 1927 NPD 123; Hart v Cohen, 16 S.C. 363; Kaplan v The Union Government, 1924 T.P.D. 532; Sliom v Wallachs Printing & Publishing Co. Ltd., 1925 T.P.D. 650; C Cornforth v Dalton and Roux, 43 N.L.R. 116; Halsbury's Laws of England (2nd ed., vol. 14, pp. 33 - 6); Morris v Salberg, 22 Q.B. 614. In view of the terms of the magistrate's judgment and his reasons for judgment, it was not necessary for the Judge a quo to consider the law as laid down in Davis and Poulter v Duffus, 1908 T.H. 36. In so far D as it is necessary for present purposes, however, the magistrate's judgment was correct; see Davis' and Poulter's case, supra; Oliver v Brouwers, 1934 T.P.D. 173; Landers v Vogel, 27 N.L.R. 458; Amalgamated Engineering Union v Minister of Labour, 1949 (3) SA 637. The Judge a quo was not entitled to find as a fact that appellants were illegally E within the location and therefore trespassers. First respondent was bound by its own Location Regulations, unless a nova causa intervened; see Langheim v Frankfurt Village Management Board, 26 S.C. 3; Hennessey and Another v Durban Town Council, 1923 NPD 326; Municipality of F Alice v Crallan, 14 S.C. 379; Yabbicom v King, 1899 (1) Q.B. 444; Dönges & van Winsen, Municipal Law (p. 691). Appellants were entitled, in an action for their eviction to show, inter alia, that first respondent's action was mala fide and that the two stands in question did not fall within the oldest and most dilapidated part of the location G or within the block which first respondent was busy demolishing. In any event, appellants could not be regarded as 'trespassers' in the narrow sense in which that term is used by McKerron, Law of Delict in South Africa (3rd ed., p. 147); see Tsose v Minister of Justice and Others, 1951 (3) SA at p. 21; McKerron, ibid.; Salmond, Law of Torts (10th H ed., p. 201). No 'necessity' existed which entitled respondents to take the law into their own hands; see McKerron, ibid.; Voet, Bk. XLI. Tit. 11, sec. 16; Bk. XLIII. Tit. 24, sec. 3; Bk. XLIII. Tit. 16, sec. 3; Bk. XIX. Tit. 2, sec. 18; see also Lazarus v Ndimangele, 1913 CPD 732; Grootboom v Magennis, 1907 E.D.C. 87; Nino Bonino v de Lange, 1906 T.S. 120; Blomson v Boshoff, 1905 T.S. 429; Nienaber v Stuckey, 1946 AD 1049.

P. F. O'Hagan, Q.C. (with him D. van der Byl), for the respondents:

1953 (4) SA p582

The so-called order of ejectment is, in substance, an order upon the defendant to give or restore possession of the property in question to first respondent. There is no distinction in law between an order for A the delivery of movable property and an order for the ejectment of a person from immovable property. In each case the judgment is in rem for the recovery of the property itself; Maasdorp's Institutes of South African Law (vol. 2, 7th ed., pp. 14 - 5); Voet, 42.5.2. Apart from attachment of the person of the defendant, the method of executing a B judgment will depend upon whether the judgment is in rem or in personam; see van Zyl, Judicial Practice (vol. 1, 4th ed., p. 250). The difference between the two forms is that whereas a judgment in personam directs performance of a duty by a particular individual, a judgment in rem creates a right to the possession of property rather than a right C against the individual and this right to possession may be enforced against all persons. Restoration of possession to the successful party, which is the essential element of the enforcement of a judgment given in a real action, necessarily involves eviction or dispossession of all D persons holding or occupying adversely to the plaintiff. The question was touched upon but not decided in K. & D. Motors v Wessels, 1949 (1) SA at pp. 10 - 11. Dutch practice and authority, as well as principle, support the view that a judgment in a real action can be enforced in all places and against any person who holds or occupies the property concerned; see Reglement voor de Deurwaarders van den Hove, van E 28 Maart 1680 (Art. 12, Groot Placaat Boek, vol. 3, p. 655); van Leeuwen, Roman-Dutch Law (Kotze's tr., vol. II, Bk. 5, ch. 26, sec. 5); Huber, Jurisprudence of my Time (Gane's tr., Bk. 5, ch. 40, secs. 3, 5, 41); van der Linden, Institutes (Juta's tr., p. 332, ch. IX, sec. 8); F van der Linden, Judiciele Practyck (Bk. 3, ch. 6, sec. 4); Wassennaar, Judiecele Practyck (ch. 22, Art. 1.4.7). For the English practice, see R.S.C., XLVII, Rules 1, 2; Halsbury's Laws of England (2nd ed., vol. 14, para. 146); Upton and Wells case, 1589, 1 Leonard 145. The conclusion is that a warrant of ejectment issued in due form authorises G the messenger to evict all persons in occupation or possession of the property for the purpose of restoring possession to the plaintiff. The remedy of a third...