REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK

JUDGMENT

CASE NO. A 34/2016

DATE: 3 JUNE 2016

NOT REPORTABLE

In the matter between:

FADI FADEL
AYOUB........................................................................................................APPLICANT

And

TRANSNAMIB HOLDINGS
LIMITED..............................................................1ST
RESPONDENT

STRUGGLE TUWILIKA
IHUHUA....................................................................2ND
RESPONDENT

Neutral citation: Ayoub v
Transnamib Holdings Limited & Another (A 34/2016) [2016] NAHCMD
158 (3 June 2016)

Coram: ANGULA, DJP

Heard: 19 April 2016

Delivered: 3 June 2016

Summary:
Spoliation application seeking for an order
compelling the respondents to restore peaceful and undisturbed
possession ante omnia
to the water supply. Spoliation is a possessory remedy applicant has
to prove he have had possession. Water not capable of being
possessed. Applicant is accordingly not entitled to a spoliation
order. Application dismissed.

Held on
the facts of this matter that the respondent had a functioning
padlock affixed to the chain on the door of the pump room on 6
February 2016.

Held on
the facts of this matter that the applicant’s employee,
Goeieman, and other people did not have accesses to the pump room and
that the only person who had access to the pump room was the
respondent’s employee, Kalimbo.

Held on
the facts of this matter that it was the applicant and not Goeieman
who gave the new padlock to Kalimbo.

Held that
spoliation is a possessory remedy. The applicant had never had
possession of the water and could therefore not found his claim on
loss of physical possession. Water is not capable of being physically
possessed. Accordingly, the applicant had not been despoiled or
dispossessed of the water. Spoliation is not aimed at the protection
of rights in the widest sense but its aim is the restoration of
factual possession of a movable or an immovable thing. This
protection also extends to incorporeal things.

Held on
the facts that the supply of water to the applicant had not been
terminated or interfered with by the respondent.

Held that
in so far as the applicant attempted to found his claim on his rights
arising from the lease agreement between the parties to enforce such
right, spoliation cannot be extended so as to compel the performance
of contractual right, because to do so would extend the remedy beyond
its legitimate application and usefulness. Accordingly, the
application was dismissed with costs.

ORDER

1. The
rule is discharged.

2. The
application is dismissed with costs, such costs to include the costs
of one instructing counsel and of one instructed counsel.

JUDGMENT

ANGULA, DJP:

Background

[1] This application came before
me on 16 February 2016 on an urgent basis seeking for an order in the
following terms:

“1.
An order condoning the non-compliance with the Rules of this
Honourable Court and hearing this application on an urgent basis as
is provided for in Rule 73 (3) of the High Court in particular, but
not limited to, condoning the abridgement of time periods and
dispensing, as far as may be necessary, with the forms and service
provided for by the Rules of the above Honourable Court.

1.
That
a rule nisi be issue, calling upon the respondents to show cause on a
date and time to be determined by the Registrar of the above
Honourable Court why an order in the following terms should not be
made final:

1.1
Ordering
the respondents to forthwith restore the applicant’s peaceful
and undisturbed possession ante omnia in and to the water supply at
Bahnhof Station in the Rehoboth District, in particular by:

1.1.1
Removing
the padlock which the respondents affixed to the pump room at the
Bahnhof Station; alternatively,

1.1.2
Giving
one of the keys to the padlock which the respondents have affixed to
the door of the pump room at the Bahnhof Station to the applicant or
his employee, Mr Bronvin Goeieman.

2.
That
prayer 2.1 above shall operate as an interim interdict with immediate
effect pending the final decision of the above matter by the
Honourable Court on the return date of this matter.

3.
Ordering
the respondents to pay jointly and severally, the one paying and the
other to be absolved the applicant’s costs on a scale as
between attorney and client.”

[2]
From the papers it appears that the applicant is a businessman. He is
hiring a piece of land from the respondent, where he is conducting
some horticultural activities. The respondent is a well-known
national railway operator which is a State-owed Enterprise. Its head
office is situated is Windhoek. It owns railway stations which are
situated alongside the railway line. One of such stations is the
Bahnhof Station which is situated about ten kilometers north of the
town of Rehoboth. The incident which forms the subject matter of this
application took place at Bahnhof Station. The
second respondent is merely an employee of the first respondent. The
matter is, strictly speaking, only between the applicant and the
first respondent; therefore for the sake of brevity I will only refer
to “the
respondent” in this judgment.

The Facts

[3] As
can be gathered from the reliefs quoted above, the applicant is
asking for restoration of supply of water to him, as well as access
to a small room or building in which a water pump is situated (“the
pump room”). The pump room
is a concrete structure, with no windows but which has vents and a
door. The door has a chain to close and secure it. Access to the pump
room is controlled by the first respondent’s employee, one
Kalimbo, who has a key for the padlock affixed to the door of the
pump room. The water is pumped from a borehole situated beneath the
pump room. The borehole supplies water to about 29 families living in
the vicinity of Banhof Station, including the applicant. As mentioned
before, the applicant is conducting horticultural activities. The
plantation is irrigated with water pumped from the borehole beneath
the pump room. In order to pump the water one has to switch on the
electric pump by means of a switch situated in the pump room. The
pump is connected to the national electric grid. Kalimbo is
responsible for operating the pump.

[4] Besides the applicant, about
18 households are also hiring land from the respondent for
agricultural purposes. The applicant has about 8168 meters of land
under irrigation. He is growing Brazilian grass. He irrigates the
plantation with what is known as a rainfall irrigation system. In
order to irrigate the plantation, the system requires about three
bars of pressure. A 50 mm pipe is connected to six 10 000 litre
tanks. The tanks are connected to a water reservoir. The tanks fill
up simultaneously and supply water also simultaneously to the
irrigation system in order to maintain the requisite pressure.

[5] The applicant alleged that he
also has a dedicated worker, one Bronvin Goeieman, who is responsible
for operating the pump according to the needs of the applicant’s
plantation. This allegation is denied by the first respondent. The
applicant further stated that on Monday 8 February 2016 he provided a
padlock to Goeieman in order for him to secure the door of the pump
room. Goeieman then gave one of the keys to Kalimbo and retained the
other key. According to the applicant it was necessary for Goeieman
to have access to the pump room as the reservoir often needed to be
replenished, especially during morning hours when the nearby
communities used the water in high quantities, which caused the
pressure for the system to drop below the required operating
pressure. However, according to Kalimbo, it was not Goeieman who gave
him the padlock but the applicant, who on 6 February 2016, approached
Kalimbo and instructed him to remove the old padlock securing the
pump room door. The applicant then removed the respondent’s
padlock and replaced it with his own padlock and gave Kalimbo a copy
of the key for the new padlock. Thereafter Kalimbo reported the
incident of replacement of the padlock to a certain Husselman, a
security staff member of the respondent, who undertook to report the
incident to head office. Husselman reverted to Kalimbo on 11 February
2016 and gave Kalimbo a new padlock and instructed him to unlock the
applicant’s padlock and replace it with the new padlock of the
respondent and provided Kalimbo with a set of keys for the new
padlock. Kalimbo then returned the applicant’s padlock with the
copy of the key that had been given to him by the applicant. The
applicant then launched this application alleging that neither had he
consented to being locked out from the pump room nor had he consented
to relinquish his right to operate the pump, and that therefore the
acts of the respondent and his employee amounted to spoliation. He
thus prayed that the status quo ante
be restored.

[6] When the matter came before
me on an urgent basis I was satisfied that the matter was urgent and
thus granted the rule nisi
with a return date of 29 February 2016. On 29 February 2016, by
agreement between the parties, I extended the rule to 4 March 2016.
Again on 4 March 2016 by agreement between the parties, I extended
the rule to 29 March 2016 in order for the parties to subpoena
witnesses to resolve a dispute which has arisen on the papers. When
the matter was called on 29 March 2016, due to what appeared to be a
misunderstanding between the legal representatives of the parties,
witnesses had not been subpoenaed. The matter was again postponed to
19 April 2016 for the parties to properly subpoena the desired
witnesses.

Issues for determination:

[7] 1. Whether the respondent had a
functioning padlock affixed to the chain on the door of the pump room
on 6 February 2016?

2. Whether Goeieman and other people
had access to the pump room?

3. Was it the applicant or Goeieman who
gave the new padlock to Kalimbo?

4. Whether the applicant had been in
peaceful and undisturbed possession of water supply?

5. Whether the applicant the applicant
committed an act of spoliation when he instructed the respondent’s
employee Kalimbo to remove the respondent’s padlock and to
replace it with his own padlock?

6. Whether the respondent’s
actions constituted a counter-spoliation?

[8] On 4 March 2016 the parties,
with the consent to the court, reached an agreement to have the
dispute of facts with regard to the first issue listed above,
referred to oral evidence for solution. The agreement reads as
follows:

“AGREEMENT
ON ORAL EVIDENCE

WHEREAS
In terms
of Rule 67 (1) (a) the court may make an order it considers suitable
or proper with the view to ensuring a just and expeditious decision,
which may be a direction that oral evidence be heard on specific
issue with the view to resolving any dispute of fact;

WHEREAS
The court
may order any deponent to appear personally or grant leave for him or
her to appear and be examined and cross-examined.

WHEREAS
A dispute
of fact has arisen whether the first respondent had a functioning
padlock affixed to the chain on the door of the pump room at the
Bahnhof Station, Rehoboth, during the period up to 06 February 2016,
with a chain that granted it exclusive control of the pump room.

WHEREAS
The
applicant is desirous that the witness, Toivo Kalimbo Stefanus who
deposed to a confirmatory affidavit should appear and be
cross-examined.

WHEREAS
The first
respondent is desirous that witnesses, Jan Husselman and Bronvin
Goeieman, who also deposed to confirmatory affidavits should appear
and be examined and/or cross-examined.

Now
therefore the applicant and first respondent agree as follows:

1.
That
the deponent Toivo Kalimbo Stefanus be called on subpoena to be
cross-examined on the question whether the first respondent indeed
had a functional padlock affixed to the chain of the door to the pump
room at Bahnhof Station, Rehoboth, up to 06 February 2016 giving the
respondent and in particular the said Mr. Stefanus exclusive control
and access to the pump room to operate the pump.

2.
That
the deponents Jan Husselman and Browyn Goeieman be called on subpoena
to be examined and/or cross-examined on the question whether the
first respondent indeed had a functional padlock affixed to the chain
of door to [the] pump room at Bahnhof Station, Rehoboth, up to 06
February 2016 giving the first respondent and in particular the said
Mr. Stefanus exclusive control and access to the pump room to operate
the pump.

3.
The
parties accordingly agree that the above issue be referred to oral
evidence for examination of Mr.Toivo Kalimbo Stefanus, Jan Husselman
and Bronwyn Goeieman”.

[9] It is necessary to set out
the applicant’s position before Kalimbo testifies in order to
put the dispute in context. According to the applicant, the door of
the pump room was not formerly secured with a padlock. However, there
was an old padlock on the chain but the padlock could not be opened
because no one had a key; this padlock was not operational due to the
fact that the keys for the padlock were lost. On the other hand,
according to the respondent, when Kalimbo was employed he was
provided with a key to the padlock securing the door of the pump
room. He was the only person in possession of the key to the padlock
and had been the sole operator of the pump operated pump.

[10] Kalimbo then testified that
he has been employed by the respondent for many years. However, he
could not say exactly how many years. He estimated that it could be
more than 15 years. He cannot read. He reiterated that he was the
only person who had had the key to open and lock the door to the pump
room because the padlock had only one key. His duties entailed inter
alia the switching on the pump to pump
the water into the tanks and when the tanks are full, to switch off
the pump and to prevent unauthorised access to the pump room by
locking the door with the padlock. The padlock was fixed to a chain
which was on the door of the pump room. He confirmed that he was the
only person who operated the pump and who had access to the pump
room.

[11] In
the course of his testimony, Kalimbo produced the padlock in dispute,
which he said had been on the door of the pump room for many years
before it was replaced with the padlock given to him by the
applicant. The padlock configuration is shaped like a heart. The hole
for the key is on the side and not at the bottom of the padlock like
most modern padlocks. It bears the words “Spoor...”
the rest of letters are illegible. Attached to the
padlock is a short but solid-looking chain. Kalimbo then demonstrated
in court how the padlock functioned by locking and unlocking it with
its key. He mentioned that that type of padlock is commonly used by
the respondent in its railway operations.

[12] Kalimbo testified further
that, on a date he did not remember, the applicant came to him and
instructed him to remove the old padlock. The applicant then placed
his own padlock on the door. The new padlock had two keys. The
applicant then handed him one key of his padlock. Kalimbo did not
know who Goeieman was. When Goeieman was called into courtroom, and
when Kalimbo saw Goeieman, he stated that he did not know Goeieman’s
name, but he said he had seen him around the applicant’s
plantation. Kalimbo further testified that it was the first time that
the applicant had spoken to him even though he had seen him before
around his plantation. He vehemently disputed the applicant’s
version that it was Goeieman who took the new padlock to him. Kalimbo
further testified that after the replacement of the old padlock with
the new padlock by the applicant he informed the respondent’s
security staff member, one Husselman, who informed Kalimbo that he
would report the incident to the head office and revert back to him.
Kalimbo was asked by Mr Narib for the applicant, why he would replace
the old padlock at the applicant’s request without verifying
with his superiors. Kalimbo responded that he assumed that the
applicant had already consulted his superiors at the head office.

[13] The other two witnesses who
were subpoenaed, Goeieman and Husselman, were not called to testify.

[14] Kalimbo impressed me as an
honest witness. I gained the impression that he is a plain, simple
and unsophisticated person. It was clear that he was testifying from
his own knowledge of his situation and events. I consider it unlikely
that he was in position to recall what was contained in the answering
affidavit so that he could tailor his oral evidence to what was in
the affidavit. Even though Goeieman was present at court, the
applicant decided not to call him. I think it is fair to say that if
the applicant had confidence in his version that Goeieman had access
to the pump room, he would have called him to reiterate his version
in oral evidence and to submit his version to be tested in cross
examination. This leaves the evidence of Kalimbo uncontradicted and
uncontested. Accordingly, I accept Kalimbo’s evidence without
any reservation. Based on Kalimbo’s evidence, the question of
whether the first respondent indeed had a functioning padlock affixed
to the chain of the pump room must be answered in the affirmative and
in favour of the respondent. Kalimbo produced the padlock with its
key, which key the applicant alleged was lost. I reject the
applicant’s evidence that the pump room was not secured with a
padlock and that the padlock was not functioning due to the fact that
the keys to the padlock were lost, as a fabrication and false.

Did Goeieman and others have
access to the pump room?

[15]
The applicant alleged that Goeieman, and other deponents who deposed
to confirmatory affidavits to the applicant’s founding
affidavit, had access to the pump room. In his replying affidavit the
applicant said the following “as
I stated in my founding affidavit and all the residents of Banhof
Station had access to the pump room”.
Kalimbo gave credible reasons why no one else except himself had
access to the pump room. Firstly, he said he was employed to operate
the pump and in order to ensure equitable supply of water to the
applicant and other households in the vicinity. Secondly, that there
had been several attempts in the past to break into the pump room and
remove the pump from the room; and that this was one of the reasons
why the pump room had to be locked at all times. In my view it is
highly improbable that the respondent would allow every Tom, Dick and
Harry to have access to the pump room and operate the pump. If such a
situation were to be allowed to prevail, and say the pump should
break, it would be impossible to hold anybody accountable.
Furthermore, if the pump were to be allowed to run continuously it
would overheat and burn. Accordingly, I also accept Kalimbo’s
evidence that nobody else other than Kalimbo had access to the pump
room. I reject the applicant’s version.

Was it the applicant or
Goeieman who gave the new padlock to Kalimbo?

[16] There is a dispute as to who
gave the padlock to Kalimbo. Was it Goeieman as per applicant’s
version or was it the applicant as per Kalimbo’s version? The
applicant stated in his affidavit that he had noticed that the pump
room was not properly secured and that people were gaining access to
the pump room and switching the pump on and off. He then provided
Goeieman with a padlock to secure the door of the pump room because
it was necessary for Goeieman to have access to the pump room as the
reservoir often needed to be replenished. I consider it highly
improbable that it was Goeieman who gave Kalimbo the new padlock and
instructed Kalimbo to remove the old padlock and replace it with the
applicant’s padlock. Why would the applicant relegate such an
important task to a mere labourer? Kalimbo testified that he did not
know Goeieman, nor had he ever spoken to Goeieman even though he had
seen him around the applicant’s plantation. I cannot think of
any reason why Kalimbo would be deliberately untruthful about who
gave him the new padlock and the instructions to replace it with the
old padlock. He has nothing to gain from being untruthful. After all
he had assumed that the applicant had consent of the respondent for
replacing the old padlock with the applicant’s new padlock. One
can only speculate on the reason why the applicant tried to distance
himself from the scene. The inherent probabilities favour Kalimbo’s
version. I accept his version that it was the applicant and not
Goeieman who gave him the new padlock and the instructions to remove
the old padlock and replace it with the applicant’s new
padlock. I reject the applicant’s version as false. The only
reasonable inference to be drawn as to why the applicant
surreptitiously gave Kalimbo his padlock and instructed him to remove
the old padlock is that the applicant did not have access to the pump
room and wanted to have access to the pump room. It calls into
question the ethical behaviour of the applicant for him to exploit
the ignorance of Kalimbo and to impose himself on Kalimbo. It begs
the question as to why the applicant did not first take up the matter
with Kalimbo‘s superiors. This was much more to be expected
because there is an existing lease agreement between the applicant
and the respondent which regulates their relationship.

Whether the applicant had been
in peaceful and undisturbed possession of water supply?

[17]
The next issue for determination is whether the applicant is entitled
to the first part of the order he is seeking: that “the
respondents forthwith restore to the applicant the peaceful and
undisturbed possession ante omnia in and to the water supply”.
In this regard the applicant stated
that he had been in peaceful and undisturbed possession of water
supply since the inception of the lease agreement between the parties
and the subsequent settlement agreement which was made an order of
court. In terms of the settlement agreement the applicant had
undertaken to “only
use the water [supplied] for irrigation purpose from 10 am to 7 pm
per day.”
There is a distinct thread in the applicant’s
approach which indicates that apart from relying on spoliation as a
remedy, the applicant is also basing his claim for the supply of
water on his contractual right in terms of the lease agreement. This
is more apparent from his replying affidavit when he stated: “The
first respondent well knew that I would need water for irrigation
purpose when it entered into the lease agreement with me. Nowhere in
the lease agreement is any limit of the water I have to use [is]
stated.”

[18]
The facts in this matter are almost similar to the facts in the
matter of Zulu v Minister of Works,
Kwazulu and Others[1].
I will relate the facts as outlined in the headnote of the judgment.
The applicant in that matter had a pipeline connected to the piping
system which supplied water to the Zulu royal household, which was
situated at some distance from the applicant's home. The water had
been supplied for a number of years in pursuance of an arrangement
with the KwaZulu Government under which the applicant was allowed to
draw water surplus to the requirements of the royal household free of
charge. The decision to terminate the supply of water to the
applicant was made because the surplus was no longer available. It
was submitted on behalf of the applicant that the termination of the
water supply was an act of spoliation and that the respondents should
be placed in the status ante omnia,
and before the merits of the dispute could be entered into, be
ordered to restore the applicant's water supply.

[19]
The court held inter alia
that:

“what
the applicant was seeking was in essence an order compelling the
respondents to supply water to his house, and not one which ordered
the respondents to restore the applicant's physical control over
corporeal property to the extent that he had been deprived thereof
(for example, by reconnecting his pipeline).”

[20]
The principles laid down in Zulu matters were referred to with
approval by our Supreme Court in the matter of Koch
t/a Ndhovu Safari Lodge v Walter t/a Mahangu Safari Lodge and
Others[2]
where Langa AJA said the following;

“Thus
in Zulu supra, where the applicant had sought an order
for the
respondent to supply him with water, the
court held that the applicant had never had possession of the water
and could not therefore found his claim on loss of physical
possession. Mandament van spolie had no role there. As a concept or a
form of relief, it is not concerned with the protection of rights 'in
the widest sense' but with the restoration of factual possession of a
movable or an immovable. This extends to incorporeals such as the use
of a servitudal right. It is the limited nature of the scope of the
mandament van spolie that excludes, for instance, the right to
performance of a contractual obligation from its operation. (See C
also Plaatjie and Another v Olivier NO and Others 1993 (2) SA 156 (O)
at 159F.) These principles, with which I respectfully agree…”

[21] Applying the principles
outlined above to the present application, as in the Zulu matter, the
applicant in this matter is seeking for an order that the respondent
be ordered or compelled to supply water to him. Spoliation is a
possessory remedy. The applicant has never had peaceful and
undisturbed possession of the water; he had not been despoiled or
dispossessed of water. The applicant could not find his claim on loss
of possession. His claim is misconceived. For those reasons the
applicant is not entitled to a spoliation order. In any event,
according to the respondent, the factual situation which prevails on
the ground is that the water supply to the applicant has not been
terminated.

[22] Mr
Narib referred me to the judgements of this court in the matters of
Naruseb v The Government of the Republic
of Namibia[3]
and Goses v Hoff[4]
where the court ordered the respondent to restore the supply of water
and electricity to applicants’ premises. In my view the facts
of those cases are distinguishable from the facts in the present
matter in that in both those cases the respondents had interfered
with the flow of or supply of water or electricity to the premises of
the applicant. In the present matter, the applicant is seeking for an
order compelling the respondent to supply water to his plantation in
the quantity needed to irrigate his plantation because the lease
agreement did not contain any limit of the pipeline to his
plantation. The applicant is not seeking for an order that the
respondent be ordered to restore physical control over an incorporeal
property he has been deprived of, such as an order to reconnect his
water pipeline.

[23] In so far as the applicant
seeks to base his claim on his contractual right, the legal position
was again reaffirmed by the Supreme Court in the Kock
matter, namely, that the protection given by mandament
van spolie cannot be extended to the
exercise of rights in the widest sense such as a right to the
performance of a contractual obligation because to do so would extend
the remedy beyond its legitimate field and usefulness. It follows
therefore that the applicant cannot rely on his contractual right
under the guise of a spoliation.

[24]
What the applicant in essence is asking is the right to operate the
pump “for
the purpose of keeping the water levels sufficient to operate the
irrigation system”.
According to the respondent it had been
supplying water to the applicant as previously agreed, namely,
between 10 am and 7 pm. It would appear that the applicant’s
situation was self-created because the applicant had installed five
water tanks, each with a capacity of 10 000 litres, after the
agreement had been concluded. According to the respondent, the
installation of additional tanks was done without consultation with
the respondent and without the respondent’s prior consent.
Initially there was one tank with 10 000-litre capacity which
supplied about 29 households, as well as the applicant. What then
happened was that the applicant increased his own water requirement
which could not be met by the borehole supply capacity. The
applicant’s so-called “peaceful
and undisturbed possession and to the supply of water”
has in fact not been disturbed, but the
applicant’s water requirement or demand increased beyond the
borehole supply capacity, which drove the applicant to adopt a
desperate measure to change the padlock so that he could have access
to the pump room to pump the water at sufficient level to operate the
irrigation system. The right to water supply must be distinguished
from the right of access to the pump room. I have already found that
the applicant never had a right of access to the key of the old
padlock, nor by extension to the pump room. On the applicant’s
own version, the keys for the padlock to the pump room were lost. The
applicant had never had peaceful and undisturbed possession of the
pump room.

Whether the applicant
committed on act of spoliation when he instructed the respondent’s
employee Kalimbo to remove the respondents padlock and replaced it
with his own padlock?

[25] The next issue for
determination is whether the applicant committed an act of spoliation
when he ordered Kalimbo to remove the padlock the respondent had
caused to be affixed to the door of the pump room. It is clear from
the facts that up to 8 February 2016 the respondent had been in
peaceful and undisturbed possession of the pump room when the
applicant instructed Kalimbo to remove the old padlock and handed him
his (the applicant’s) padlock and further instructed him to
affix his padlock to the door of the pump room. Mr Narib submitted
that Kalimbo’s conduct was consensual. I disagree. For the
consent to be valid it must be an informed consent. The applicant
simply tricked Kalimbo to hand over the control and possession of the
pump room. The legal position is well settled:

“It
is trite law that violence, stealth, fraud or force is no longer
necessary for an act of spoliation. All that is required is unlawful
spoliation, that is, disturbance of possession without the consent
and against the will of the possessor. 
A
person who gains possession of a thing by trickery commits an act of
spoliation, just as a person who fraudulently induces a servant to
hand over the property of the master” LAWSA
Vol. 27 par 79.

[26] It
is not in dispute that the applicant instructed Kalimbo without first
informing the respondent or securing the respondent’s consent.
Kalimbo was oblivious of what was going on. Kalimbo testified that he
assumed the applicant had permission from his superiors. On the
authority referred to above, Kalimbo’s ostensible consent was
invalid because it was obtained by trickery or deceit. It follows
therefore that the respondent had been in peaceful and undisturbed
possession of the pump room until 8 February 2016 when the applicant
took the law in his own hands and instructed Kalimbo to change the
padlock to the door of the pump room and replaced it with his own
padlock. In my view the applicant committed an act of spoliation on
that day.[5]

Did the respondent’s
conduct constitute a counter-spoliation?

[27]
The next question is whether the respondent’s conduct amounted
to a counter-spoliation when the respondent removed the applicant’s
padlock and replaced it with its own new padlock. It is settled law
that counter-spoliation is a plea admitting the spoliation but
alleging that the respondent’s act was merely to counter the
applicant’s wrongful spoliation. The requirement for
counter-spoliation is that it must take place “instanter”
meaning “forthwith”.[6]

[28] Mr
Boesak for the respondent submitted that respondent’s conduct
was a counter-spoliation. He conceded that the defence was not
pleaded on papers; instead a denial was pleaded but he submitted
further that based on the facts and what happened, it was evident
that a counter-spoliation took place. Mr Narib on the other hand,
relying on the principle laid down in the matter of Mans
v Loxton Municipality and Another,[7]
submitted that for an action to qualify as counter-spoliation it must
take place instanter in
the sense that it is part of the res
gestae. Mr Narib thus submitted that
the respondent’s action was not instanter
or forthwith. It was a fresh act of
spoliation. He pointed out that the applicant was in possession of
the property for about three days. Therefore the respondent should
have applied to court for a spoliation order against the applicant.

[29] In
the matter of The Three Musketeers
Properties (Pty) Ltd v Ongopolo Mining & Others.[8]
Smuts AJ said the following:

“The
requirement of counter-spoliation being instanter
had
been liberally interpreted in De
Beer v First Investments Limited
supra
where the court cautioned against an overly detached armchair view of
matter ex
post facto.
This approach was subsequently approved in Ness
and Another v Greeff
supra
at p 648 where a full bench further approved a statement by Van der
Merwe in Sakereg
at 93 that a court has a wide discretion to approve of an act of
counter-spoliation and to refuse the original spoliator against the
original spoliator against the original possessor. In that matter
even though a period of 11 days had elapsed between the appellant’s
occupation until he was locked out by the respondent, the court held
that the respondent’s conduct amounted to an instanter
recovery of the premises.”

[30]
Smuts AJ view was confirmed by the Supreme Court on appeal.[9]

[31]
The applicant was deprived of his possession for a period of three
days, from 8 February to 11 February 2016. What action was taken on
behalf of the respondent to restore possession? According to the
respondent, after the removal and replacement of the padlock by the
applicant, Kalimbo reported the incident to Husselman, who is a
security staff member of the respondent, who then advised Kalimbo
that he would report the matter to the head office and revert back to
him. Thereafter on 11 February Husselman came back with a new padlock
and instructed Kalimbo to remove the applicant’s padlock and
replace it with the new padlock. Mr Boesak submitted that it was
common cause that the respondent is a State-Owned Enterprise, a big
corporate entity. He submitted that it is within the court discretion
to determine a reasonable time within which such an entity could have
taken action. In the exercising of my discretion, I take into account
that the head office of the respondent is situated in Windhoek, which
is about 80 kilometres from Rehoboth where the incident took place. I
further take into account the usual bureaucracy involved in such big
corporations; the hierarchy or line of reporting and then the process
of decision making which would be involved in the respondent’s
situation. Taking into account that Husselman was a security officer,
he would have reported the incident to his immediate supervisor, who
would in turn report it to his/her superiors. I further take into
account the fact that there had been a court case with the applicant
which was settled as recently as last December 2015 which would be at
the forefront of the staff members of the respondent who were
involved in decision and which compel such staff member to consult
widely and to be cautious not to rush into taking the decision. The
decision would be communicated downward until it reached the
implementer. In this case the implementers were Husselman and
Kalimbo. I am accordingly of the view that under the circumstances,
the period of three days was not unreasonable and did not ‘exceed
permissible limits’[10].
In the exercise of my discretion and in accordance with the liberal
approach propounded and encouraged by the courts in both The
Three Musketeers matters, I consider
the removal by respondent of the applicant’s padlock and
replacing it with the respondent’s padlock as part of the res
gestae of the applicant’s
removing the respondent’s padlock and replacing it with his own
padlock. I have therefore arrived at the conclusion that the
respondent’s conduct constituted a justifiable
counter-spoliation. For those reasons the application stands
to be dismissed.

[31] In the result I make the
following order:

1. The rule is discharged.

2. The application is dismissed with
costs, such costs to include the costs of one instructing counsel and
one instructed counsel.

Angula, DJP

APPEARANCE:

APPLICANT:
Mr Narib

Instructed
by MURORUA & ASSOCIATES

RESPONDENTS
: Mr Boesak

Instructed
by KANGUEEHI & KAVENDJII INC