CASE LAW UPDATE

Facts: The applicants are husband and wife and have been occupying the premises owned by the respondent in terms of a 12-month lease agreement. The husband is in custody awaiting trial and the applicants defaulted on their rent payments. The wife, Ms Cassim, received a letter from the respondent’s attorneys to the effect that if she failed to make payment the agreement would be terminated and she should vacate the premises. Ms Cassim went to visit relatives and while she was away, her brother-in-law, Mr Essack, resided in the premises. One day he found three men in the premises and had to share the premises with them for several days, until they changed the lock, which he was informed was done on the instructions of the respondent. The attorneys informed Ms Cassim that the applicants had vacated the premises and that their movable property must be removed, otherwise it would be removed and she would be responsible for the costs of storage and transportation.

Application: The applicants brought an application by way of urgency for a mandament van spolie in terms of which they sought the restoration of possession and control of the premises and that the respondent be ordered to provide the keys to the new lock or restore the old lock. The applicants contend that they were in peaceful and undisturbed possession of the premises when the respondent changed the locks to the premises and installed three adult men in the premises to prevent Ms Cassim retaking possession of the premises. By so doing the respondent has unlawfully deprived the applicants of their possession to the premises without a court order.

Discussion: Ms Cassim was notified that should she fail to settle the payments, the lease agreement is cancelled and she should vacate the premises with all other occupants by a certain date. She did not settle the arrear payments. However, she alleges that she continued to remain in the property. As and when she was in the property, she knew that the agreement of lease came to an end as a result of her breach as a result of non-payment of rent. She also knew that she had to vacate the property. There was therefore no basis for her and the other occupants to remain in the premises. She knew she was not in lawful possession. It cannot be correct for her to contend that she was in peaceful and undisturbed possession of the premises.

Findings: At the time of the alleged spoliation Ms Cassim was not in possession of the premises. Payment of rental was demanded from her, she failed to pay and the contract was cancelled. At the time when her brother-in-law came to the premises, the applicants had long lost possession of the leased premises. The fact that the applicants’ movables are still at the premises does not revive their possession of the premises. At that time the applicants did not enjoy a peaceful and undisturbed possession of the premises. At the time of the spoliation the applicants did not possess the premises. They could not, therefore, have been deprived of possession. The applicants have failed to prove that they are entitled to the relief sought on a balance of probabilities.

Order: The application is dismissed. The applicants are ordered to pay the costs of this application.

TEFFO J

* Eds – See Zinju v King Sabata Dalindyebo Municipality [2023] ZAECMHC 67 at paras [15]-[16]:

In spoliation proceedings the court is not concerned with the lawfulness of the applicant’s possession. In other words, the applicant must not show that he was entitled to be in possession, but that he was in de facto possession at the time of being despoiled. In Mbuku v Mdinwa 1982 (1) SA 219 (Tk) at 220 it is stressed that an applicant for a spoliation order must establish the fact of his possession, for it is that which he is seeking to recover. The possession which must be proved is not possession in the juridical sense; it may be enough if the holding by the applicant was with intention of securing some benefit for himself, accompanied by the physical element of corpus or detentio. See: Reek v Mills 1990 (1) SA 751 (A) at 759D.

Facts: The applicant rendered legal services in divorce proceedings to the respondent and incurred disbursements. The respondent disputes her liability. The respondent made a series of payments to the applicant despite the respondent alleging that these were gratuitous. The applicant needs to serve her claim for fees on the respondent, who had declined to accept service of papers save under the Uniform Rules. The respondent is a Pilates instructor who has practised her profession outside of South Africa for a period not less than four years prior to the present time. When the settlement agreement in the divorce proceedings was made an order of court during October 2022, the respondent appears to have been in Singapore, in which jurisdiction the proceedings of the settlement were deposited at the respondent’s request.

Application: The respondent applies for reconsideration of an order granted ex parte against. The part of the order obtained at the instance of the applicant, which the respondent wishes to be set aside, authorised the sheriff to attach and take under his control for the purposes of confirming jurisdiction, a certain immovable property, as well as funds held by the respondent in bank accounts.

Discussion: The respondent’s counsel was urged to give sufficient weight to the respondent’s assertions under oath that she was domiciled in South Africa. It was legitimately pointed out by the applicant’s counsel that the respondent’s version was terse to the point of being uninformative. She states that she is domiciled and ordinarily resident in Johannesburg, the latter assertion sought to be supported by reference to the visa. It is significant that the copy of the visa contains redactions which obliterate the respondent’s passport number and the visa type. In the circumstances of the reconsideration application the type of visa granted to the respondent may well have shed light on the type of visa or conditions attached to the visa. Not only is this information not available from the copy, but the respondent proffers no explanation for the redaction, nor gives any hint of what has been redacted. Manifestly absent is any information relating to whether the respondent is, or is not, working for another employer and, if so, where she is employed. Her statement that she is living in the USA is similarly lacking in any detail which would have been expected concerning her whereabouts and residential circumstances.

Findings: The respondent’s assertion that she is domiciled at Johannesburg and that she is ordinarily resident in Johannesburg is unconvincing and lacking factual foundation. There is no credible evidence that the respondent is domiciled in South Africa based on residence that is fixed, being not for any defined period or particular purpose but general and definite in its future duration. The respondent’s version is archetypically bald and uncreditworthy, as well as being palpably implausible. The respondent has exclusive knowledge of her own personal circumstances and has chosen not to disclose these. It is difficult to avoid the inference that such non-disclosure was motivated by the knowledge that the full facts, if disclosed, would not assist her cause. In these circumstances less evidence is required from the applicant to discharge the onus. The applicant has satisfied the burden of establishing that the respondent is not an incola of South Africa, from which follows the axiom that she is a peregrinus.

Order: The reconsideration application by the respondent is dismissed.

GRAVES AJ

Facts: This matter deals with the administration of the second respondent (CEPPWAWU). CEPPWAWU has been under administration since 2020, and the terms of its administration and the appointed administrator have been extended on several occasions. The administrator appointed Mr Tseki as a national organiser and the appointment triggered this application. The applicant’s case is that Mr Sono made a presentation to the office of the Registrar, and he introduced the idea of appointing a national organiser. The applicant raised his concerns about the appointment of a national organiser, which concerns related to the effect such an appointment would have on the union’s financial position and its continued failure to file audited financial statements. Mr Sono responded, acknowledging that the applicant’s concerns were legitimate, but stated that in his view, the role of the national organiser is crucial to the attainment of a stable operational environment, which would enable him to be more effective in his administration. In further correspondence, the Registrar discouraged the administrator from proceeding with the appointment of a national organiser due to the financial position of the CEPPWAWU.

Application: The applicant seeks an order to declare Mr Tseki’s appointment as national organiser null and void and for it to be set aside. The applicant also seeks an order declaring that paragraph 6.4 of the third administration order contemplates consultation with the Registrar on all decisions pertaining to the administration of CEPPWAWU.

Discussion: The administrator, by appointment, stepped into the shoes of CEPPWAWU and the union can only act through the appointed administrator, who took over the management control of the union. The functions of the Registrar are provided for in the Labour Relations Act 66 of 1995 (LRA), and more specifically section 103A empowers the Registrar to apply to the Labour Court to appoint an administrator, to vary or amend any prior order made or to terminate the appointment of the administrator where an administrator is no longer required. The Registrar does not have unfettered powers, and he must act within the confines of the powers given to him in terms of the LRA. Paragraph 6.4 of the third administration order provides for Mr Sono to consult with interested parties when deciding the proper and effective governance and administration requirements to be put in place for CEPPWAWU. The Registrar seeks an order declaring that Mr Sono must consult with him on all decisions pertaining to the administration of CEPPWAWU, as this is how the Registrar understands paragraph 6.4.

Findings: The Registrar is a creature of statute, he does not have unfettered powers, but must act within the confines of the powers given to him in terms of the LRA. The Registrar fulfils an important regulatory and custodial function. The scope of the Registrar’s interest is limited to the ambit of his functions and powers as specified in the LRA. If the Registrar were to demand to be consulted on matters that fall outside of his statutory functions and powers, such would be ultra vires. The words "governance and administration requirements" relate to activities relevant to the process of administration that CEPPWAWU is undergoing, and it does not include the day-to-day administration of the union. The Registrar’s powers do not extend, as he believes, to matters that have an impact on the general running and governance of the union.

Order: The application is dismissed.

PRINSLOO J

Facts: During October 2023, legal practitioners cast their votes in support of the candidates they wanted to be elected as board members of the Legal Practitioners' Fidelity Fund (the Board). The elections were conducted per the procedures as determined by the Legal Practice Council (LPC). After the election closed, the LPC took the position that the procedures and methodology it had followed, in conducting the election, were based on its own incorrect interpretation of Rule 46 of the Legal Practice Council Rules. In January 2024, it informed the legal fraternity that, because of this irregularity, it had decided to not tally the votes cast in the October 2023 election and would, instead, re-run the election.

Application: Applicants have brought an application (Part B) to have the LPC’s decisions to not tally (and thereafter, release the outcome of the October 2023 votes) and to re-run the election, reviewed and set aside. Additionally, they seek an order directing the LPC to tally such votes, release the outcome and publish the names of the successful candidates in the Government Gazette. In the interim, they, on an urgent basis, seek an order from this court interdicting the LPC from announcing a date, calling for nominations of candidates, and/or conducting a re-run election (Part A).

Discussion: The pertinent issue is whether the LPC was empowered to make the impugned decisions. The LPC, despite repeated invitations from the court during the hearing, could not refer the court to the specific provision in Rule 46 (or elsewhere within its statutory framework) in terms of which it was empowered to, after the close of voting, declare an election to have been irregular or to decide to not comply with its obligations per Rules 46(15), 46(16) or 46(17). The LPC contended that it was entitled to abandon the election process on the principle of legality. To contend that the doctrine of legality empowers an administrative body to act ultra vires or irrationally, is to contend the diametrical opposite of the very essence of the doctrine. Unfortunately, the LPC’s submissions, to a large extent, were based on its erroneous view of itself as final arbiter of the correct interpretation of Rule 46(1) and that, having felled its final judgment in this regard, it had the power to declare the October 2023 election irregular or unlawful.

Costs: The LPC, before filing its answering affidavit, called for nominations for candidates and set out a timeline for the re-run election. The LPC afterwards files an answering affidavit in which it, rather obtusely, informs the court tasked with deciding whether to interdict the call for nominations, setting of a date and re-run of the election, that the call for nomination is a fait accompli. The LPC’s conduct, both in calling for nominations and then in failing to present a cogent basis for opposition, is that of an organization which, regardless of legal scrutiny, will at all costs remain intransigent. Instead of properly assessing the basis of its opposition, the LPC initiated costly election proceedings in what can only be reasoned as an attempt to frustrate the relief sought herein by the applicants. The LPC, in doing so, paid no regard to the fact that it is, as least partially, funded by the public (insofar as legal practitioners are considered “the public”). The costs already incurred in a reckless, ultimately ill-fated attempt to force a re-run election, in light of the order, are wasted.

Order: Pending the finalisation of the review application brought by applicants in Part B hereof, the LPC is interdicted and prohibited from announcing an election date for the election of members to the Board of The Legal Practitioners' Fidelity Fund, calling for the nomination of candidates, and from conducting elections for the appointment of members. The LPC shall pay the costs of NADL and Mvuzo Notyesi on the attorney-own-client scale. The LPC shall pay the costs of the Black Lawyer’s Association on an attorney-own-client scale. The LPC shall pay the costs of the Board of The Legal Practitioners' Fidelity Fund on an attorney-own-client scale.

STRYDOM AJ