Wightman t/a JW Construction v Headfour (Pty) Ltd and Another

• Jurisdiction: South Africa
• Judge: Mpati DP, Cameron JA, Heher JA, Ponnan JA and Mhlantla AJA
• Judgment Date: 10 March 2008
• Citation: 2008 (3) SA 371 (SCA)
• Docket Number: 66/2007
• Hearing Date: 27 February 2008
• Counsel: EJJ Spamer for the appellant. SC Goddard for the respondents.
• Court: Supreme Court of Appeal

Heher JA:

[1] The appellant is a building contractor. In March 2004 he entered into an agreement with the first respondent to carry out construction work on an erf in Hout Bay owned by the first respondent. At all material D times then and thereafter the company was represented by its sole director and shareholder, Mr Archar Head, the second respondent.

[2] During July 2004, before completion of the contract, the parties fell out over payment or defective workmanship, depending on which one you believe. On or shortly before 12 July the respondent took possession E of the property and put in other contractors to complete the work.

[3] The appellant consulted an attorney who wrote two letters to the respondents' attorney on 13 July. In the first, payment of outstanding payments was claimed and the second relied on an agreement allegedly concluded between the attorneys to the effect that the appellant possessed F and would retain a lien over the property notwithstanding his agreement to the continuation of the work by the contractors whom the second respondent had employed.

[4] Early in August the first respondent issued summons against the appellant. It claimed payment of R463 669 as the alleged cost of G remedying his defective performance and some R220 000 as special damages for loss of rental income, occupational rental and moving and storage costs.

[5] The appellant thereafter became aware that the second respondent and his family had taken occupation of the completed works. He H regarded that as a breach of the agreement which acknowledged his lien and as a spoliation. On 17 August 2004 he launched an application in the Cape High Court seeking an order for restitution ante omnia and ejectment of the respondents and their invitees, together with a temporary interdict to prevent the respondents from reoccupying the premises I pending final determination of a counterclaim to be instituted against the first respondent and costs on the attorney and client scale. The appellant alleged that the first respondent still owed him over R350 000 for work done under the contract.

[6] I have not attempted to do more than provide a terse summary of the J

Heher JA

A case. The facts are fully set out in the judgment in the court a quo which is reported at 2007 (2) SA 128 (C).

[7] The application was heard by Waglay J. He dismissed it with costs in March 2005, but granted leave to appeal to the full bench. In September 2006 Thring J (Blignault J concurring) dismissed the appeal with costs. B Bozalek J dissented. He would have granted the relief claimed save for the interdict against occupation of the premises. The present appeal is with the special leave of this court.

[8] Although the appellant, in his founding affidavit, relied on the occupation by the second respondent and his family in August as the act C of spoliation, it is apparent that he did so because of a fundamental misconception induced by the legal advice that he received. This was to the effect that he continued to retain possession in August by reason of the agreement reached between the attorneys on 13 July. In fact it is clear, as the respondents emphasised in their answering affidavit, that the D appellant had lost possession by 12 July and never thereafter regained it. The founding affidavit contained averments covering all material events from 3 July onward. The respondents did not seek to avoid meeting them because of alleged irrelevance or immateriality. Despite counsel's submissions to the contrary, the appellant's misdirection should not be E allowed to deflect us from the real issue in dispute: did the respondents unlawfully despoil the appellant?

[9] Much of the argument was directed to the meaning of the agreement reached between the attorneys on 13 July. In the view I take of the matter it is unnecessary to decide whether they agreed that the appellant F possessed an enforceable lien (as appellant's counsel submitted) or merely that if the appellant possessed a lien at all he would not be deemed to have waived it by agreeing to allow the contractors to proceed (as was contended on behalf of the respondents). There is no dispute that the appellant had lost (whether by voluntary abandonment or G spoliation) physical control over the property before that agreement was concluded. No agreement between the attorneys could of itself revest such control. At best for the appellant it purported to confirm a state of possession which did not exist. The lien referred to in their correspondence also no longer existed and could not exist absent possession. Nor was the effect of the agreement, even on the appellant's interpretation, H such as to restore possession to him. If therefore the appeal were to turn on this aspect of the case it would go the way of the respondents.

[10] That does not conclude the matter. The events which preceded the agreement between the attorneys require careful consideration. If the proven facts establish that the appellant was unlawfully despoiled of his I possession before that agreement was reached, then their consensus, on whatever basis, could only have deprived the appellant of a remedy if its effect was to restore possession (which it did not) or because the appellant thereby waived or abandoned his rights to be restored to possession. It is not helpful to describe the agreement as a 'substitute' for J whatever rights had accrued to the parties before its conclusion (as the

Heher JA

respondents' counsel did). Apart from the fact that it is very doubtful A that such was the attorneys' intention, unless the legal effect was that of a waiver or abandonment, there was no negation of these rights. But the respondents did not rely on a waiver nor do the undisputed facts support such a case. In fact, the appellant has at all material times believed, and, apparently, been advised, that their agreement entitled him to contend B for and rely upon uninterrupted physical possession of the premises. In his eyes, accordingly, he intended to give up no rights whatsoever.

[11] The first task is accordingly to identify the facts of the alleged spoliation on the basis of which the legal disputes are to be decided. If one is to take the respondents' answering affidavit at face value, the truth C about the preceding events lies concealed behind insoluble disputes. On that basis the appellant's application was bound to fail. Bozalek J thought that the court was justified in subjecting the apparent disputes to closer scrutiny. When he did so he concluded that many of the disputes were not real, genuine or bona fide. For the reasons which follow I respectfully D agree with the learned judge.

[12] Recognising that the truth almost always lies beyond mere linguistic determination the courts have said that an applicant who seeks final relief on motion must, in the event of conflict, accept the version set up by his opponent unless the latter's allegations are, in the opinion of the E court, not such as to raise a real, genuine or bona fide dispute of fact or are so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers: Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984...