Wepex Trading (Pty) Ltd v Olivier

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: CC Williams ADJP and MC Mamosebo J
• Judgment Date: 14 May 2021
• Docket Number: CA & R 38/2020
• Hearing Date: 15 February 2021
• Court: Northern Cape Division
• Citation: 2021 JDR 1400 (NCK)

Mamosebo J:

[1]

This is an appeal against the judgment and order granting a spoliation order by Magistrate Mulder in the Magistrates Court for the district of Mgcawu held at Postmasburg on 29 July 2020 against the appellant, Wepex Trading (Pty) Ltd. The appellant was ordered to reconnect the electricity supply to the residence occupied by Mr

2021 JDR 1400 p2

Mamosebo J

Gert Olivier, situated at a certain Portion 7 of Farm Gloucester, Number 674, also known as Number 1, Glosom, with costs. Adv C Bester represents the appellant while Adv AS Sieberhagen represents the respondent.

Grounds of appeal:

[2]

The appeal is premised on the following grounds set out in the Notice of Appeal, which issues stand to determine whether the court a quo erred:

2.1

The Court should have found that the application was not urgent having regard to the allegations in the founding affidavit and that the respondent was not entitled to make out a new case on urgency in reply for the first time to explain the inordinate delay of over two months in bringing the application;

2.2

The Court did not have to make a credibility finding on the respondent's version regarding the explanation for the delay since on the facts alleged by the respondent the application did not justify an approach to the urgent Court;

2.3

Contrary to the approach set out in Firstrand v Scholtz [2007] 1 All SA 436 (SCA) at para 13 that the mandament had not become a catch-all remedy to protect "quasi-possession" of all kinds of rights, irrespective of their nature, the trial court still incorrectly applied the mandament van spolie when it was clear, on both the founding and replying affidavits, that the respondent did not show that the right to the supply of electricity was an incident of his possession of the premises.

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Mamosebo J

2.4

The court should not have found that the right to the supply of electricity was an incident of the respondent's possession of the premises considering that such a finding could not be made on the papers on the proper application of the Plascon-Evans rule as the facts averred by Mr Olivier (as applicant) in his founding affidavit read with the admitted facts by Wepex (as respondent) together with the facts alleged by the latter did not justify such an order;

2.5

The Court should not have found that Mr Olivier established a "gebruiksreg" (right of use) having regard to the fact that his founding affidavit made out no such case. It was in his replying affidavit for the first time that Mr Olivier purported to make out such a case, which is impermissible in the circumstances;

2.6

The Court should have found that on a proper analysis of the facts, the application was one for specific performance (as the rights relied on were distinctly personal in character) and dressed up as a spoliation application since the premises forming the subject of the lease agreement relied on by Mr Olivier do not envisage that they be put to residential use, but only for stock grazing purposes, with no allegation made to show that electricity was required to allow for the premises to be put to effective use for such grazing purposes.

The issue:

[3]

Although the appeal was noted on a number of grounds as tabulated above, the main ground that the appellant is seeking relief on is for this court to determine in this appeal whether Mr Olivier was entitled to a spoliation order when the appellant disconnected the supply of electricity to House number 1, Glosom. Couched differently, the

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Mamosebo J

issue that stands for determination is whether the court a quo erred in its finding that the supply of electricity was incidental to the possession or occupation of the property and consequently qualifying for the spoliatory protection, and rejecting the submission on behalf of Wepex that the right enforced was purely personal and not susceptible to spoliatory relief.

Condonation application:

[4]

The appellant was supposed to have filed its heads of argument not later than 22 January 2021, but only did so on 26 January 2021, two court days out of time. It is imperative for the practitioners to observe Rule 49(15). However, Mr Olivier does not oppose the application. The explanation for the delay on its own is not determinative of whether condonation should be granted or not. The pertinent question to be asked is whether it will be in the interests of justice for condonation to be granted. See S v Ndlovu [1] . A delay of two court days is minimal. The interests of justice require that condonation be granted, as Mr Olivier would not suffer any prejudice.

The background:

[5]

The appellant is the current owner of the two farms:

(i)

Certain Remaining Extent of the Farm Gloucester Number 674, measuring 1195, 7510 hectares, held in terms of Deed of Transfer number T674/1966; and

(ii)

Certain Portion 7 of the Farm Gloucester Number 674, measuring 12, 9679 hectares, held in terms of Deed of Transfer number T866/2005 having bought them from Assmang Ltd.

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Mamosebo J

[6]

Mr Gert Olivier, the respondent in the appeal, has occupied the house erected by his late father on one of these two farms also known as House Number 1, Glosom for about 40 years. According to him, his father was awarded a right of occupation having worked on that same farm for more than 60 years. Mr Olivier contends that he was born at Glosom.

[7]

On 17 October 2017 Assmang (Pty) Ltd (the lessor), then its registered owner...