Urgent
Chamber Application
MUSAKWA
J:
This
is an application for a spoliation order. The draft order reads as
follows -
“TERMS
OF FINAL ORDER SOUGHT
That
you show cause to this Honourable Court why a final order should not
be made in the following terms;
1.
The 1st,
2nd
and 3rd
Respondents be and are hereby interdicted from interfering in any
manner with the Applicant's business operations at the tuck shop
situated at Gateway Primary School including but not limited to
barring her potential customers from buying from the tuckshop.
2.
The1st,
2nd
and 3rd
Respondents be and are hereby ordered not to unlawfully evict the
Applicant from the tuck shop at Gateway Primary School.
3.
The 1st,
2nd
and 3rd
Respondents to pay costs of suit on an attorney and client scale, the
one paying the others to be absolved.
INTERIM
RELIEF GRANTED
Pending
confirmation or discharge of the provisional order, the Applicant is
granted the following relief:
1.
The 1st,
2nd
and 3rd
Respondents be and are hereby ordered to remove their additional
locks at the tuck shop at Gateway Primary School upon service of this
order and take all necessary steps to ensure that the Applicant's
peaceful and undisturbed occupation of the tuck shop is restored
failing which the 4th
Respondent
be and is hereby authorized to remove the locks above said (sic).
2.
The 2nd
Applicant (sic) be and is hereby ordered to publicly and at an
assembly reverse the order he imposed on school pupils and teachers
not to buy at the Applicant's tuck shop at Gateway Primary School.
3.
The Applicant's legal practitioners are hereby given leave to serve
the order on the Respondents.”
The
background to this application is that the applicant leased a tuck
shop that is situated at Gateway Primary School. The agreement was
concluded with the Parents' Association Committee of Gateway
Primary School.
The
applicant has been a statutory tenant since 2011.
On
6th
February 2017 the applicant was given notice of termination of the
lease with effect from 6 April 2017.
On
5th
April 2017 the applicant's legal practitioners wrote to the
chairman of the Parents' Association Committee challenging the
termination of the lease without good cause.
The
applicant claims that she stocked the tuck shop in anticipation of
the opening of the second term of schooling.
On
9th
May 2017 which was the opening day of school, it is alleged that the
second respondent barred everyone from buying from the tuck shop. The
ban was announced at the school assembly. People were deployed to
guard against anyone buying from the tuck shop. The applicant tried
to engage the second respondent to no avail.
On
10th
May 2017 the applicant found that additional locks had been installed
on the tuck shop. As a result she has not been able to access the
tuck shop.
It
is the applicant's contention that she had hitherto been in
peaceful and undisturbed possession of the tuck shop. Consequently
she was despoiled of her peaceful and undisturbed possession of the
tuck shop.
The
respondents contend that the applicant accepted the termination of
the lease. She only flipped on the 5th
April 2017.
When
she voluntarily gave up possession the Gateway Schools Trust took
over the premises. It is also contended that the applicant was never
in possession of the premises during the month of April. It is also
disputed that she stocked the tuck shop.
There
is further averment that the second and third respondents did what
was in the best interests of the pupils whom the applicant was
swearing at.
Although
in the opposing papers the respondents had raised some points in
limine,
Mr Madhuku
abandoned them in favour of the matter being heard on the merits.
That
is quite commendable as it has become predictable in urgent
applications for the opposing side to raise preliminary issues.
Mr
Daitai
submitted that there was no response to the letter of the 5th
April, which suggests an admission of the unlawful conduct complained
of. He further submitted that in terms of the oral lease, the
applicant would not pay rentals during school holidays as there was
no business to be conducted. However, the applicant had access to the
tuck shop during the holidays.
The
denial of access by placing additional locks is in violation of s24
of the Commercial Premises (Rent) Regulations, Statutory Instrument
676/1983.
He
further submitted that a tuck shop fits within the definition of
commercial premises. Regarding the contention that a spoliation order
may not be granted where it is not practicable to do so, Mr Daitai
submitted that there is no averment that someone else has taken over
the premises.
In
submitting that the requirements for spoliation had been proven, he
outlined them as -
(a)
Peaceful and undisturbed possession; and
(b)
Unlawful deprivation.
Whilst
conceding the legal requirements for spoliation, Mr Madhuku
submitted that this is not a case of spoliation.
According
to him, spoliation is proprietary and does not apply to personal
rights. He further submitted that the applicant's possession of the
premises ended when the lease was terminated. Thus, possession of
immovable property must be factual. Quasi-possession does not apply.
Mr
Madhuku
also submitted that the applicant was misconceived to claim that the
Commercial Premises (Rent) Regulations apply to the facts of the
matter. This is because Gateway Primary School does not constitute
commercial premises.
Mr
Madhuku
further submitted on the authority of De
Jager And Others v Farah And Nestadt
947
(4) SA 28 that a court has discretion not to grant a spoliation order
where it is not practicable to do so.
Thus
it was his submission that the applicant's return to the premises
would poison the learning environment. This is because the
relationship between the parties is said to have deteriorated.
Reference
was made to an incident wherein the applicant is said to have scolded
one pupil calling her an idiot.
I
do not think that it can be argued seriously that the applicant was
not in possession of the tuck shop. Once it is admitted that there
was a lease agreement, then the issue of possession is established.
The
applicant had access to the tuck shop from where she conducted her
business. Even though the applicant was not in exclusive possession
of the tuck shop as it would be closed during holidays, it cannot be
said she forfeited her overall physical control.
I
am not persuaded that the tuck shop does not constitute commercial
premises.
This
is because in terms of the Commercial Premises (Rent) Regulations
commercial premises are defined as -
“'commercial
premises' means any premises or part thereof occupied under a lease
for the purpose of carrying on therein any industry, business, trade
or occupation, and includes any ground, parking-space, garage,
outbuilding, workers' quarters and other improvement let
therewith;”
There
is no doubt that the applicant was conducting business under a lease
with the respondents. This is irrespective of the fact that Gateway
Primary School on which the tuck shop is situated may not be
commercial premises for other purposes.
For
purposes of a spoliation order possession is not dependent on who has
better title between an applicant and the spoliator. What is
necessary to prove is that the applicant was unlawfully dispossessed
or was unlawfully prevented from resuming possession after
temporarily relinquishing physical control over the thing where there
is reasonable belief that the applicant would be able to resume such
control whenever he required the thing.
With
the requirements for spoliation having been set out, the only valid
defences available are that -
(a)
the applicant was not in peaceful and undisturbed possession of the
thing in question at the time of the dispossession;
(b)
the dispossession was not unlawful and therefore did not constitute
spoliation;
(c)
restoration of possession is impossible;
(d)
the respondent acted within the limits of counter-spoliation in
regaining possession of the article.
In
this respect see the case of Kama
Construction (Pvt) Ltd v Cold Comfort Farm Co-Operative And Others
1999
(2) ZLR 19 (SC).
There
is dispute between the parties regarding whether the applicant had
relinquished possession of the tuck shop by virtue of the notice that
was given by the third respondent.
The
applicant denies that she acquiesced to the notice, hence the letter
of 5th
April.
The
other contention is that if she had voluntarily vacated the tuck shop
there would have been no need to install the additional locks. In
addition, there would have been no need to make an announcement at
assembly.
I
would therefore, hold that the applicant was unlawfully deprived of
possession of the tuck shop. This destroys the respondents' defence
that the applicant voluntarily vacated the tuck shop.
It
can be noted that the notice of termination did not advance any
reasons.
This
does not accord with s22 of the Commercial Premises (Rent)
Regulations which provides that -
“No
order for the recovery of possession of commercial premises or for
the ejectment of a lessee therefrom which is based on the fact of
the lease having expired, either by the effluxion of time or in
consequence of notice duly given by the lessor, shall be made by a
court, so long as the lessee —
(a)
continues to pay the rent due, within seven days of due date; and
(b)
performs the other conditions of the lease;
unless
the court is satisfied that the lessor has good and sufficient
grounds for requiring such order other than that —
(i)
the lessee has declined to agree to an increase in rent; or
(ii)
the lessor wishes to lease the premises to some other person.”
The
fact that the applicant refused to vacate the premises did not
empower the respondents to resort to unorthodox means to gain control
of the premises. This runs contrary to the well-established principle
that no one must take the law into their own hands.
The
law on spoliation is aimed at protecting a possessor in retaining
physical control or regaining it where he or she has been unlawfully
deprived of such possession.
The
placing of additional locks on the tuck shop violates s24 of the
Commercial Premises (Rent) Regulations which provides that -
“No
lessor of commercial premises shall —
(a)
without a lessee's consent and without reasonable excuse, cause the
removal from the premises of any property belonging to the lessee; or
(b)
prevent a lessee from using or occupying the premises; unless he has
obtained an order of court for the removal of such property, if
appropriate, or for the recovery of possession of the premises or the
ejectment of the lessee therefrom.”
As
regards whether restoration is possible, the contention by the
respondents is untenable. The argument that the relationship between
the parties has deteriorated was never advanced in the notice of
termination. The claim that the applicant verbally abused a pupil
cannot be an adequate reason to deny restoration as the aggrieved
party has sufficient remedies to pursue. In addition there was no
averment by the respondents that a new tenant has since taken over
the premises.
Accordingly,
a provisional order is granted in terms of the draft.
Magwaliba
& Kwirira,
applicant's legal practitioners
Mundia
& Mudhara,
respondents' legal practitioners
1.
H. Silberberg, The Law of Property-1975
2.
Wille's Principles of South African Law, 7th
ed.
