Ntshwaqela and Others v Chairman, Western Cape Regional Services Council, and Others

• Jurisdiction: South Africa
• Citation: 1988 (3) SA 218 (C)

Ntshwaqela and Others v Chairman, Western Cape Regional Services Council, and Others
1988 (3) SA 218 (C)

1988 (3) SA p218

Citation	1988 (3) SA 218 (C)
Court	Cape Provincial Division
Judge	Howie J
Heard	March 4, 1988; March 8, 1988; March 9, 1988; March 10, 1988
Judgment	April 15, 1988

Flynote : Sleutelwoorde

Spoliation — Mandament van spolie — Applicants having quasi-possession C of incorporeal right to occupy property (right to occupy portion of farm) — Proof of alleged incorporeal right not necessary for spoliation order — Sufficient if evidence shows that applicant exercised occupation and use of land disturbed on the day in question — Even if at time of application for order spoliator not in possession of D property, this does not amount to impossibility on his part to restore possession — If it is reasonably possible for him to recover possession and then pass on to applicant or if he could effect restoration without himself actually taking possession, then spoliation order could be granted against him. E

Headnote : Kopnota

The applicants applied for a spoliation order, directing the respondents to restore to them undisturbed possession of the sites occupied by them on land belonging to some of the respondents. The applicants had lived in shacks on the land until a removal operation was mounted at the instigation of the respondents with the assistance of the police and the applicants among others were moved to a township. Second and third respondents, the Administrator of the Cape and the Minister of Law and Order respectively, opposed the order whereas the other respondents, the F owners of the land, abided the decision of the Court. Second and third respondents contended (a) that no dispossession occurred seeing that possession was surrendered by consent, and (b) that as they (second and third respondents) did not have possession they therefore could not restore possession. The Court examined the requirement that the applicants had to show that they were in possession of the land and held that whereas in the instant case the applicants did not occupy the whole G farm but their possession was rather the quasi-possession of the incorporeal right to occupy part of the land, proof of the alleged incorporeal right was not required before a spoliation order could be granted. This accorded with the principle that determination of the parties' competing rights was irrelevant and impermissible in spoliation proceedings. It was sufficient if the evidence showed (as it did in the instant case) that the applicants exercised occupation and use of the land which exercise was disturbed on the day in question. H

As regards the respondents' contention that the applicants left voluntarily, the Court held on an analysis of the evidence that there had been no choice for the applicants: the essence of the intimation made to them by the police was an order to vacate and that intimation was conveyed in circumstances which in all probability would have led them to think that any alternative to immediate departure would not be tolerated. The Court held accordingly that the applicants were dispossessed by means of duress and that the dispossession was unlawful. I

As regards the respondents' defence that they could not restore possession, the Court held that, even if at the time when a spoliation application was brought the spoliator was not in possession of the property, this did not amount to an impossibility on his part to restore possession. If he could reasonably possibly recover and then restore possession or if it was reasonably possible for him to effect restoration of possession without actually recovering possession himself, then a spoliation order could be granted against him. The Court J held that the second and third respondents

1988 (3) SA p219

A could physically and lawfully, through their servants, effect the return of applicants to the sites in question and thereby assist the owners in the restoration to applicants of the position they claimed. Application granted.

Case Information

Application for spoliation order. The facts appear from the reasons for judgment.

B J J Gauntlett for the applicants.

W G Burger SC (with him C B Prest) for second and third respondents.

No appearance for other respondents.

Cur adv vult.

C Postea (April 15).

Judgment

Howie J:

This is an application for a spoliation order.

As at 2 December 1987 applicants were amongst hundreds of people D living in shacks which they had erected on land in the Noordhoek area. Applicants had been resident in this part of the Peninsula for some years. On the date mentioned, first applicant and third applicant lived on the farm 'Dassenberg'. Second applicant resided on land belonging to the relevant local authority, which property is known as 'The Tip'. That local authority was, until June 1987, the Divisional Council, and thereafter the Western Cape Regional Services Council. For convenience I E shall refer simply to 'the local authority'.

Applicants and their fellow shack-dwellers were referred to in argument by Mr Gauntlett, applicants' counsel, as 'squatters'. I shall, for convenience, use the same expression.

F At all relevant times 'Dassenberg' has been jointly owned by fourth to seventh respondents and their brother, Mr I C B de Villiers. I shall refer to them collectively as 'the owners'.

In mid-1987 the owners gave a written option to buy 'Dassenberg' to Messrs H H Vos, J J Vlok, J B de Rooy and H J P Smith ('the G option-holders'). The option was irrevocable and of force for 12 months from the date of its signature. It has not yet been exercised. If it is, the land will be developed as a township. In the option document the owners confirmed that all squatters then on the farm were there illegally, without their permission, and authorised the option-holders to take the necessary steps to remove the squatters, to proceed with the H development scheme and to go on to the farm for the purpose of furthering the project.

During the second half of 1987 several meetings were held at which removal of all the Noordhoek squatters was discussed. The meetings were variously attended by representatives of the owners, of the option-holders, of the Provincial Administration, of the local authority and of the South African Police. The magistrate of Simonstown, in whose I district Noordhoek lies, also attended.

The upshot of the meetings was the mounting of a removal operation carried out on 2 December 1987 in the course of which the squatters' shacks were demolished and they and their belongings were transported to J Khayelitsha on the Cape Flats.

1988 (3) SA p220

Howie J

A The case for the three applicants is that they were in possession of the sites occupied by them and that the effect of the operation referred to was to deprive them unlawfully of such possession. They accordingly seek an order that possession be restored to them.

They have cited as respondents the chairman of the local authority B (first respondent), the Administrator (second respondent), the Minister of Law and Order (third respondent) and all but one of the owners (fourth to seventh respondents).

In the notice of motion the relief sought (omitting irrelevancies was set out as follows:

'1.

...

2.

C That the respondents be directed to show cause... whay an order should not be granted:

2.1

directing first, second and third respondents to restore (applicants) to undisturbed possession of the site(s) occupied by (them)... at Noordhoek and to reinstate the D homes previously occupied by them on the site(s) to the condition in which (they were) prior to... demolition on 2 December 1987.

2.2

...

2.3

...

2.4

... E

2.5

interdicting and restraining the respondents from further demolishing the said homes of the applicants when restored as aforesaid.

3.

Directing that paras 2.1 (and) 2.5 operate as an interim order pending the return date.

4.

F Declaring that the applicants are entitled to restore (sic) their respective houses on the same sites and foundations, to a similar condition as existed prior to 2 December 1987.

5.

Ordering such respondents as may oppose this application to pay the costs jointly and severally.'

G In view of what I have already said the restoration of the shacks is no longer in issue.

Neither first respondent nor the local authority has opposed the application.

Second and third respondents filed affidavits opposing the grant of H relief. Among those affidavits was one by sixth respondent Mr D C de Villiers. Although this affidavit was tendered as the evidence of a witness, he nonetheless said therein that he was authorised to represent all the owners 'in these proceedings', that they were aware of the nature of the relief sought and that it was 'imperative' that the squatters not be allowed to return to 'Dassenberg'. In substance, I therefore, the owners, while not formally opposing, made common cause with second and third respondents.

Subsequent to the filing of affidavits the leading of oral evidence was sanctioned by an order of this Court on the question whether, in effecting the removal, the actions of second and third respondents' servants were lawful. Pursuant to that order certain oral evidence was J led on both sides.

1988 (3) SA p221

Howie J

A Apart from applicants, only second and third respondents were represented at the hearing. The case for those respondents, as presented in argument, is that all the squatters surrendered possession voluntarily and that their removal from the land was therefore not unlawful; consequently, there was no spoliation. It was submitted that in any event, even if there had been spoliation, second and third B respondents did not now have possession and so could not restore possession...