REPORTABLE

CASE NO.: SA 3/2007

IN
THE SUPREME COURT OF NAMIBIA

In
the matter between

And

CORAM: Maritz,
JA, Strydom, AJA et
Mtambanengwe,
AJA

HEARD
ON: 2008/06/16

DELIVERED
ON: 2008/10/28

_______________________________________________________________

APPEAL
JUDGMENT

_______________________________________________________________

MTAMBANENGWE,
A.J.A.: [1]
This is an appeal against the dismissal by Smuts AJ in the High
Court on 30 November 2006 of a spoliation application brought against
respondents by the appellants.

[2]
The spoliation application concerned a small fenced off portion of a
Farm called Uris No 481 in the district of Tsumeb (Farm Uris/the
farm) known as the Tschudi Mining Area (the Mining Area).

2. 
   The
   parties on both sides are associated entities but in reality those
   involved in this matter are only the first appellant and the second
   respondent. It is to these two I shall refer to in this judgment as
   appellant and respondent, referring only to the parties in the
   plural when and if necessary.

   
   

[4] The
first appellant is the owner of Farm Uris, having purchased it from
the original owner, the second respondent, in terms of an agreement
of sale dated 22 August 2002 for N$400 000,00.

[5] At
the time the agreement of sale was concluded respondent was the
holder of a mining licence (ML125) over a portion of farm Uris
including the Tschudi Mining Area. Respondent is still holder of that
licence granted in terms of section 93 of the Minerals (Prospecting
and Mining) Act, 1992 (the Act). The agreement of sale thus provides:

1. 
   that respondent retains
   all its prospecting and mining rights held over the farm (clause 8);

   
   

2. 
   that
   respondent as seller shall pay compensation to appellant as
   purchaser for any mining activities on the farm at a certain rate to
   be escalated in accordance
   with the Consumer Price Index (CPI) (clause 20)
   

   
   

3. 
   that –

   
   

“should
the Seller re-activate mining activities at the Tschudi
Mine, the Seller will ensure that the Purchaser is supplied with at
least 10m² of water per day if the current water installation is
to be used by the Seller.” (Clause 20.3)
and

4. 
   that
   -

   
   

“The
Purchaser has acquainted himself with the exploration and mining
rights on the farm and is aware of the fact that
these sources may be exploited.” (Clause 20.5)

[6] Before
the farm was sold,
mining had taken place in the Tschudi Mining Area from 1989 to 1992.
That mining had then stopped but during that phase an access tunnel
had been constructed for underground mining. This access tunnel,
according to respondent, would entail a replacement cost of
approximately N$50 million. The tunnel and the associated working
are approximately 1.8 km in length.

1. 
   A
   site plan produced by appellant shows that the Tschudi Mining Area
   extends across into an adjacent farm called Tschudi 461, and that
   that part of the area on farm Uris is fenced off and access to it is
   through two gates shown on a sketch plan also produced by appellant
   as gate 1 and gate 2.
   

   
   

[8] After
the farm had
been purchased and after appellant had taken possession, mining and
prospecting operations by respondent continued in a part of the farm
called the Bobos.

[9] Certain
structures had previously been erected by second respondent’s
predecessors within the fenced off area including an office, storing
and ablution facilities and a workshop. After the purchase of farm
Uris appellants claim to have made some improvements to these
structures and to have made use of some of them as storage for some
items and as accommodation for their staff.

1. 
   Of
   particular relevance in the spoliation application is the fact that
   within the fenced off area first appellant stored some fencing poles
   and porcelain insulators which were placed adjacent to gate 2.
   Exactly when that happened is not stated in appellant’s
   affidavit. The poles and insulators were placed inside the fence in
   such a manner that they prevented access to the fenced off area
   through that gate. The gate itself was kept closed by use of wires.

   
   

[11] Respondents
state that the mining area including the tunnel had been placed under
"care and maintenance", a term which they say, is used in
the mining industry to denote minimum maintenance as opposed to
abandoning and rehabilitating. This, they say, was done with the
purpose of possibly utilizing the facility again, and to this end the
mining area remained fenced off and the site was visited from time to
time and was guarded except during the period the second respondent’s
predecessor was under liquidation.

1. 
   The
   reason why the site would have been placed under care and
   maintenance is explained by Mr R Webster, the current managing
   director of respondents. As summarized by the Court a
   quo,
   he says:

   
   

“…improved
technology or, more efficient means of extraction or price increases
in ore would justify an operation being placed in care and
maintenance and thus on hold until one or more of those factors were
to eventuate which could result in mining recommencing on a viable
basis”.

And in Webster’s
own words (to clarify)

“More
often than not, new inventions and better scientific procedures as
well as price increases allow reactivation. In fact, mines all over
the world are often put on care and maintenance for many years while
price increases are awaited. That is the inherent nature of mining.
Since 1992, until now, the second respondent’s engineers and
personnel had free access to the Tschudi fenced off area and visited
the site on a regular basis to do maintenance.”

[13] I
pause to say, in passing, that appellants admit at
least that:

“the
enclosed area was fenced off
by respondents’ predecessors”;

that –

“Whether they
initially intended to secure and maintain the site and tunnel, may
well be so”

and,
lastly, that –

“The
only employee of respondent that I am aware of who came into the area
for any official purpose,
was the person who read the electricity meter that was in the area.”

14. 
    Also as to the care and
    maintenance of the Tschudi mining area, appellants do not
    categorically deny respondent’s allegation but argue that
    this, if found to be the case, lacked the element of factual and
    physical control and did not constitute joint control as contended
    by respondents.

    
    

14. 
    According
    to appellant’s founding affidavit respondent’s first act
    of spoliation was a letter respondent wrote to appellant on 28
    August 2006 in which respondent informed appellant that it intended
    “to commence mining operations in the Tschudi area” and
    stated further:

    
    

“The
mine area and buildings, which I understand are being used
(unofficially) by Uris Lodge, will be immediately vacated, and
secured by Rubicon.”

14. 
    It is
    not necessary to recite the rest of the contents of that letter and
    its sequelae.
    Suffice it to relate that this led to Mr Neethling who deposed to
    the affidavit dwelling to some extent on the merits of the matter
    against advice by appellants’ legal practitioners that the
    merits are not relevant to the application, and to say further that
    further correspondence and discussions between the parties took
    place as a result, during which appellant insisted that before
    mining could resume in the Tschudi area a surface agreement had to
    be entered into between the parties.

    
    

14. 
    During
    the said correspondence appellant clearly stated in a letter dated
    20 September 2006 that

    
    

1. 
   “…the
   personnel of respondent could not be allowed into the Tschudi
   mining area without such agreement”

   
   

and that

2.
“…no personnel of respondent would be allowed on
applicants’ farm Uris 481 (with the exception of the Bobos
Silica area) as from 21 September 2006”.

Consequently
appellant locked out respondent from farm Uris on that date.

14. 
    The
    Court a
    quo
    catalogued the events that followed the letter of 28 August 2006 in
    paragraphs [15] – [17] of its judgment and in paragraph [20]
    thereof stated that the alleged spoliation had taken place on 27
    September 2006 when –

    
    

“…second
respondent moved a caterpillar scoop load haul dumper into the mining
area by gaining entrance through gate no 2 of the enclosed area after
19h00 on that day”.

14. 
    The
    notice
    of appeal states that the appeal is “against the whole of the
    judgment and orders handed down by Acting Judge Smuts on 30 November
    2006”.

    
    

14. 
    The
    last but one paragraph of the judgment a
    quo
    (Para [52]) appears to me to summarise the essential findings the
    Court a
    quo
    made on some crucial aspects of the case and to explain why the
    Court made the order it gave: it reads as follow:

    
    

“[52]
In exercising my discretion against a referral, I stress that I am
also mindful of the underlying purpose served by the remedy of
spoliation and the harm the remedy is designed to prevent and the
protection it is to afford in the interests of public order. In
doing so, the relationship between the person deprived and the thing
is to be considered in
determining whether it requires the protection in the interests of
public order as
was stressed in Ross
v Ross
supra.
As I have also stressed, the applicants have retained their
possession of the area and their poles and insulators and have access
to them. The
deprivation of possession of the point inside gate 2 for the purpose
of blocking that access to the second respondent does not in my view
require protection in the interests of public order in all the
circumstances of this case.
In the exercise of my discretion, I
would accordingly decline a referral to oral evidence and
furthermore
the relief now sought in any event for this reason as well.
(My
emphasis)

14. 
    As to
    the
    grounds of appeal in the present instance, one has to refer to
    counsel’s submission to see what it is that appellants find
    wrong with the Court a
    quo’s
    judgment. I have done so and find only two areas where a direct
    allegation is made that the Court a
    quo
    erred and one area, where the allegation is made by implication. I
    refer first to paragraph 2 in the introduction section of Mr
    Mouton’s heads of argument on behalf of appellants:

    
    

“2.
It is contended that the Court a
quo
erred when it found that the Applicants (First Applicant) was not
dispossessed of its free peaceful and undisturbed possession of a
portion of the farm Uris No 481 in the district of Tsumeb (the farm)
known as the fenced off Tschudi Mining Area.”

And secondly in paragraph
25 of the same heads:

“25. It is
respectfully submitted that his Lordship Mr. Justice Smuts (acting)
erred when he found that:

1. 
   there
   was joint possession whereas the facts before Court clearly
   indicate that there was not joint possession, but exclusive control
   and possession by the First Applicant."

   
   

14. 
    That
    the Court a
    quo
    erred in that it did not refer the dispute as to the alleged joint
    possession is indirectly and vaguely made when Mr Mouton says in the
    alternative to (a) of paragraph 25:

    
    

“alternatively

that a
dispute as to the alleged joint possession exist which is capable and
prudent to be referred to oral evidence”.

Similarly
when counsel (a) submits:

“First Appellant
contends that:

(f)
The Second Respondent by having addressed annexure ‘F’
to the First Appellant has disturbed the free and undisturbed
possession by the First Appellant of the fenced off area in
question.”

and
(b)
emphasises:

“…The
Appellants had free undisturbed and peaceful possession of the fenced
off Tschudi Mining Area until
such
free undisturbed and peaceful
possession was unlawfully,
disturbed
by the letter (annexure ‘F’ and the breaking of the fence
and the removal of the property of the appellants.”
(My
underlining)

14. 
    In
    argument before this Court Mr Mouton for the appellant,
    in fact submitted that the addressing of that letter to appellant
    was an act of spoliation and that when appellant secured gate 2 with
    wires it was in fact counter-spoliating.

    
    

14. 
    Describing
    the contents of the letter (annexure “F”) of 28 August
    2006 or the addressing of that letter to appellant as an act of
    spoliation is, in my opinion, stretching the meaning of the word
    spoliation beyond permissible limits, grammatically speaking, or is
    an interpretation beyond what common sense would allow. The most
    one can say of that letter is that it constitutes a threat and
    appellants’ remedy for that would be no more than to seek an
    interdict against respondent, as nothing done by the letter makes
    the principle spoliatus
    ante omnia restituandus est applicable.

    
    

14. 
    In
    paragraph 7 of his heads of argument Mr Mouton submitted
    that in order for an application for spoliation to succeed all that
    was required to be established was a disturbance of the free,
    peaceful and undisturbed possession without the consent and against
    the will of the possessor. He referred to Beukes
    v Crous,
    1975(4) SA 215 (NC) and Administrator,
    Cape v
    Ntshiwagela,
    1990(1) SA 705 (A) in support of this submission, and also in
    support of the proposition that the removal of the poles and
    insulators at gate 2 amounted to dispossession of appellant of those
    items. Counsel went onto say that it was also clear from the
    application as a whole that Appellants had factual and mental
    control over the things dispossessed coupled with the intention of
    deriving some benefit ‘from the thing.’

    
    

This he makes clear when
he attacks respondent’s defences in paragraphs 13 to 18 of his
written submission, particularly in paragraph 18 where he says:

“It
is also submitted that the Second Respondent’s defence that the
First Appellant is not deprived of its possession of the property or
things and/or that the Second Respondent is not in possession of the
poles and/or insulators any
longer and that possession cannot be restored, is no bar to the
granting of an order for Mandament van Spolie.”

14. 
    The
    first case he cited is in Afrikaans.
    I have looked at the English head note and found in it nothing to
    show whether the case supports the proposition. The second case is
    cited without reference being made to the relevant pages. A perusal
    of the judgment however, reveals that in that case, both in the
    Court a
    quo
    (before Howie J) and on appeal, the question whether a spoliation
    order was competent where the spoliator has no possession of the
    thing, as in this case (the poles and insulators) was debated. In
    both Courts the statement of De Wet J in
    Potgieter en ‘n Ander v Davel,
    1966(3) SA 555 (O) at 559 D – E to the effect that no
    spoliation order is competent where the spoliator has no possession
    or control of the thing despoiled was said not to have any support.
    In the course of dismissing that statement, Nicholas AJA said (in
    the Administrator’s
    case, supra,
    at 719 G):

    
    

“The
policy of the law being what it is, it would be strange if it
required of an applicant for a spoliation order that he should prove
as part of his cause of action that the spoliator
had acquired possession.”

14. 
    In
    discussing the Potgieter
    judgment Howie J referred to various views in disagreement with it
    by various writers more or less the same as Nicholas AJA did at p
    227 A – J in Ntshiwaqela
    v Chairman, Western Cape Regional Services Council,
    1988(3) SA 218 (C). The learned Judge said at 227 H:

    
    

“According
to Kleyn, the spoliator need not himself have possession. It is
sufficient if he has merely impeded or disturbed the possessor’s
freedom to control and to use the property concerned. He agrees with
the views of the other writers referred to and submits that the
learned Judge in the Potgieter
case, having confused the question whether there had been spoliation
with the question whether restoration of possession was possible,
wrongly concluded that because the spoliator had not acquired
possession it necessarily followed that restoration of possession was
impossible.”

14. 
    Correct
    as Mr Mouton is in the submission, the question remains whether what
    respondent did on 27 September 2006 in regard to gate 2 and the
    poles and insulators made it a spoliator or a counter spoliator.
    The Court a
    quo
    addressed that question as I will later show in this judgment.

    
    

14. 
    The
    Court a
    quo
    pointed out that initially the notice of motion complained of the
    unlawful dispossession of the Tschudi Mining Area, but that at the
    hearing of the matter counsel for the appellants submitted that the
    restoration of the appellants ante
    omnia
    would only be with respect to the possession of the site adjacent to
    gate 2, “submitting that the prior possession of that specific
    area should be restored by the second respondent by returning the
    pile of poles and insulators to that precise location from their
    present location a short distance away within the enclosed area,
    that is to the area from which they had been removed by the second
    respondent, in effecting access through gate 2”

    
    

14. 
    I
    will consider how the Court a
    quo
    dealt with this new stance of the appellant shortly hereunder. But
    before that I must briefly mention certain relevant events that took
    place immediately before the incident of the removal of the poles
    and insulators from the site adjacent to gate 2, and immediately
    thereafter.

    
    

14. 
    To
    begin with I refer to respondent’s stance which was that,
    though no mining operations took place within the Tschudi Mining
    Area since 1992, it (respondent) always had access to the area
    through gate 1 to take care and maintain the tunnel. When
    respondent wrote annexure “F”, appellant’s
    response was, inter
    alia,
    to dispute respondent’s entitlement to resume mining in the
    Tschudi mining area and to declare that respondent would not be
    allowed into the area.

    
    

14. 
    Thus
    on 27 September 2006 appellant locked out respondent from the area.
    This was preceeded by a letter to respondent’s legal
    practitioners dated 20 September 2006 in which appellant’s
    legal representative stated, inter
    alia,:

    
    

“Your
refusal, despite numerous written requests and invitations to that
effect, to enter into negotiations with TTM leaves little alternative
other than to prohibit any and all employees and/or representatives
of Ongopolo Mining Ltd.,
(hereinafter referred to as ‘OML’), from entry onto Farm
Uris, No. 481, with the exception of the Bobos Silica development.
This prohibition is effective as from 09h00 on 21 September 2006
until further written notice and does not in any way limit the right
to make use of the existing proclaimed road over the Farm Uris.

This
restriction is in line with the stipulations of section 52 of the
Minerals (Prospecting and Mining) Act, Act 33 of 1992.”

14. 
    The
    locking out included securing gate 2 with wires in addition to it
    having been blocked by the pile of poles and insulators, and the
    padlocking of gate 1 on 27 September 2006 for the first time,
    with the expressed intention of denying access to respondent.

    
    

14. 
    On
    being informed about the lock out, respondent’s legal
    representative wrote to appellant’s legal representatives on
    27 September 2006. The letter was a protest against the said lock
    out and demanded immediate access to the mining site, it sets out
    facts that the writer considered formed the basis of respondent’s
    entitlement to access to the area. More significantly, it states in
    paragraph 10 thereof:

    
    

“I have advised my
client that, inasmuch as I am instructed that they always had
unhindered access and possession of the mining site, that they are
entitled to counter-spoliate, by immediately retaking possession of
the site.”

14. 
    It is
    common cause that the respondent acted as advised and made forced
    entry through gate 2 into the mining area on 27 September 2006.
    Appellant’s reaction was relayed to the legal representatives
    of respondent in a letter on 28 September 2006 in which the writer
    disputes respondent’s entitlement to mine in the area. It
    states in the second
    and third paragraphs:

    
    

“It
came to our knowledge that Ongopolo Mining Ltd.,
(hereinafter referred to as ‘OML’), after 09h00 on 27
September 2006 moved certain machinery and equipment onto a portion
of Farm Uris No. 481 with regard whereto TTM had peaceful and
undisturbed possession for more than the past three years. This
action constitutes an unlawful deprivation of TTM’s peaceful
and undisturbed possession.

We
herewith demand that OML restores TTM’s aforesaid possession
with immediate effect, failing which we shall advise our client to
approach the High Court for appropriate relief.”

14. 
    A Mr
    Barend Mattheus Nel, formerly a Health and Safety Manager of Rubicon
    Security CC, swore an affidavit in support of respondent, wherein he
    states, in paragraph 1:

    
    

“…In
2002 I became Managing Director of Rubicon. I still serve in that
capacity. I have personal knowledge about the facts stated herein as
I have visited Farm Uris during the last 10 years, on numerous
occasions, and at least once a month when detailed inspections were
held at guards and the mine itself….”

In paragraph 3.1 of the
same he states:

“since
at least from 1992, Rubicon and its predecessors were specifically
tasked to guard the area referred to as the Tschudi fenced off area
on a 24 hour basis. We did so continuously and successfully and I
visited the guards there on numerous occasions, and at least once a
month”.

And in
paragraph 3.5:

“gates
1 and 2 were never locked during the time the Tschudi fenced off area
was guarded by us. Mr Neethling locked gate 1 for the first time on
or about 27 September 2006. Until then, both the second respondent
and Mr Neethling’s employees had free and undisturbed access to
the Tschudi fenced off area. …second respondent always had
free access to the tunnel through gates 1 and 2. …the parties
always had joint access to the Tschudi fenced off area…”.

See
record pp 257 –
259.

14. 
    Mr
    Neethling seems to downplay the importance of Mr Nel’s
    affidavit in the way he dealt with it in his replying affidavit; he
    indirectly but
    partially deals with Nel’s affidavit in replying to paragraph
    2 of Rod Webster’s affidavit, when he states:

    
    

“3.8 Applicants
started utilising the enclosed area when it constructed the lodge.
This is when it was initially used as a storing area for building
materials. This is also when a padlock was placed on gate 1 to
secure the material and regulate access to the area. Obviously
during the day when work was done in the area and where an employee
or employees of applicant was in the area, the gate was not locked.
It was however locked when no one was present. This situation
prevails for at least the last two years. It is simply untrue to
state that a padlock was only utilised during September 2006. The
only employee of respondent that I am aware of who came into the area
for any official purpose, was the person who read the electricity
meter that was in the area. This employee either has to obtain the
key from an employee of applicant who lived there or has to come
during the day when the gate was not locked due to the presence of
employees of applicant in the area. If other employees of respondent
came there when the gate was open, they would not have been refused
access but they would have no business there as there was nothing to
do on behalf of respondents. They would have been mere transient
visitors.”

This was later followed
by a mere reference at paragraph 11 of the same:

“AD
AFFIDAVIT OF BAREND MATTHEUS NEL

I have
already dealt with the allegations contained in the affidavit of
deponent Nel and stand by what I have stated.”

14. 
    In
    paragraph 20 of the judgment a
    quo
    Smuts AJ noted the dispute revealed on the facts as stated by
    appellant and as reflected in Mr Nel’s affidavit. Suffice it
    to say that the Court a
    quo
    then related events immediately prior to and after the alleged
    spoliation and counter-spoliation on 27 September 2006 and later
    events relating to the locking of gate 2 by first appellant and the
    breaking of the lock by respondent up to the time the spoliation
    application served before it.

    
    

14. 
    I
    note in passing that counsel appearing for the appellant (in the
    Court a
    quo)
    apparently did not in his submissions, unlike Mr Mouton before us,
    deal with appellant’s claim that respondent committed an act
    of spoliation by addressing annexure “F” to first
    appellant. Instead he “understandably submitted that the
    restoration of applicants ante
    omnia would
    only be with respect to possession of the site adjacent to gate 2,
    submitting that the prior possession of that specific area should be
    restored by the second respondent by returning the pile of poles and
    insulators to the precise location from their present location a
    short distance away…” (see judgment a
    quo
    p445 para [33]). As the Court a
    quo
    rightly observed, what was:

    
    

“now
sought in these proceedings is the restoration of the status
quo
ante
so that these items are piled up for the purpose to block access to
gate 2 in their prior position”.

14. 
    I
    also note that in the Court a
    quo
    counsel for appellants raised the issue of reference of the matter
    to oral evidence and that before us the issue is raised indirectly
    and somewhat tentatively by Mr Mouton. In this regard Mr Mouton
    relies particularly on Hillkloof
    Builders (Pty) Ltd v Jacomelli,
    1972(4) SA 228 (D). The facts in that case are very different from
    the facts in the present matter. Suffice it to quote what Harcourt,
    J said at p 229 G as to the facts in that matter, which led his
    Lordship to adjourn the application “to be heard in
    conjunction with the action at present pending”:

    
    

“In
the view I take of the case and the conclusion to which I have come,
it is not desirable that these differences should be set out in
details or canvassed extensively. Suffice it to say that they
disclose substantial dispute in regard to both the question whether
there was sufficient effective possession in the applicant to entitle
it to have such possession protected by means of a spoliation order
and also in regard to the facts constituting the alleged spoliation,
that is the removal, or activities of the respondent resulting in the
removal, of Zondi.”

14. 
    Regarding
    possession of the Tshudi mining area by respondent in the present
    case, there are no substantial area of dispute. The question of
    possession and referral to evidence was adequately dealt with by the
    Court a
    quo,
    as I will show when I come to address these issues.

    
    

14. 
    In
    paragraph [34] of the judgment the Court a
    quo
    questioned the usefulness of the relief “now sought” and
    appellant’s counsel then, in response referred the Court to
    Ross
    v Ross,
    1994(1) SA 865 (SE) at 869 H – 871 A where that Court
    stressed:

    
    

“There
is however, in my view, clearly no numerus
clausus
of persons to whom the remedy is available. Neither is it necessary
for the applicant to place himself in a special legal category of
persons who have a possessory relationship with an object: proof of
the existence of any such sufficient relationship at the relevant
time will do. The
question of the nature of the requisite possession has been
approached from the point of the objects of the remedy, with regard
to the harm it is designed to prevent.
(My emphasis)”

The
Court a
quo
then pointed out that the Court in Ross’s
case at p 869 referred to a difference among academic writers “as
to whether the Mandament van Spolie is a remedy for protection of the
public order rather than a parely possessory remedy” declining
to enter this controversy, but pointing out further that the Court in
Ross’s
case concluded that the Court:

“(s)hould
consider inter
alia
the question whether the relationship between the person deprived and
the thing itself was such as to require protection in the interest of
public order.”

14. 
    Smuts
    AJ
    then made the factual finding in paragraph [36] of his judgment:

    
    

“In
this instance, and unlike in Ross
v Ross
supra,
the applicants have not been deprived of their possession of the
poles and insulators themselves. Nor are they deprived access to the
mining area. Nor are they deprived of access to those poles and
insulators located within the mining area. They have been placed a
short and otherwise insignificant distance away. The applicants thus
have possession of their poles and insulators and of the site
including the area inside gate 2. They are merely deprived of the
opportunity of blocking access and thus causing an obstruction to the
mining area by having those items placed or even dumped at a certain
point with the apparent purpose to thus prevent that access.”

I
respectfully agree with the Court’s
finding of facts.

14. 
    The
    Court a
    quo
    next considered the crucial issue, whether there was joint
    possession of the Tschudi mining area by the parties. In this
    regard, note should be made of the fact that appellant does not
    challenge the correctness of any of the legal propositions upon
    which the Court proceeded to consider the issue, namely that a joint
    possessor may invoke a spoliation remedy and that counter-spoliation
    is a defence. It goes without saying that if there was no joint
    possession of the Tschudi mining area respondent’s act on 27
    September 2006 of moving into the area (accepting it took no
    property of appellant away) merely amounted to a trespass. On the
    other hand if there was joint possession the only remaining question
    is whether respondent’s action on 27 September constituted
    counter-spoliation.

    
    

14. 
    The
    question of joint possession hinges on the meaning to be ascribed to
    what respondent called “care and maintenance”. In other
    words the question is whether the Tschudi mining area had been
    abandoned by respondent since 1992 as appellant contended.

    
    

14. 
    First,
    for reasons it gave in its judgment the Court a
    quo
    refused the application for reference to oral evidence of “the
    question as to whether respondents had joint possession for the
    purpose of care and maintenance work”. I fully agree with
    those reasons and consider it superfluous to repeat or try and
    summarise the reasoning of the Court a
    quo
    in this regard. Suffice it to say that in reaching the conclusion
    that there was joint possession of the area, Smuts AJ took into
    account various relevant factors, including relevant provision of
    the sale agreement between the parties of the Farm Uris No. 481,
    (annexure “A” to appellant’s founding affidavit),
    the present replacement value of the tunnel, the nature of
    possession as described in Law
    of South Africa vol
    27 at para 247 and 261 and most importantly, the uncontradicted
    evidence of Mr Barend Mattheus Nel.

    
    

14. 
    The
    learned Judge a
    quo
    found in para [50] of its judgment:

    
    

“The factual
disputes which arise on the papers on certain confined issues would
not in my view in these circumstances need to be referred to oral
evidence. Even if I were to be incorrect as far as the bases I have
set out upon which the application would fall to be dismissed, I
would, in the exercise of my discretion, in any event decline to
refer the factual disputes to oral evidence. This is not only by
reason of the fact that the applicants should have anticipated
certain factual disputes prior to the bringing of this application
given what is stated in the correspondence but a referral would not
be justified given the disputes themselves.”

14. 
    The
    Court a
    quo
    went on to discuss the question of counter–spoliation. It
    stated in this regard that –

    
    

“Once
it is accepted,
that there was possession on the part of the second respondent, then
it would follow that the locking of the gate by applicants on or
around 27 September 2006 would amount to a spoliation of the second
respondent.”

The Court then considered
whether respondent was entitled to counter–spoliate through
gate 2 and by moving the poles and insulators a short distance away
from the gate to gain access through that gate.

14. 
    The
    question of counter–spoliation was raised and debated both
    before the Court a
    quo
    and before us on appeal. The crucial point in this debate was
    whether second respondent was entitled to counter–spoliated as
    it did by seeking access through gate 2 (instead of gate 1) removing
    in the process the pile of poles and insulators which had been
    placed against it in such a manner that they prevented access into
    the mining area. In this connection the argument of counsel for
    appellants in the Court below, which was repeated in more or less
    the same terms before us on appeal, can be summarized briefly. It
    was that counter–spoliation, to afford a defence, must be part
    of the res
    gestae
    of the spoliation, in other words it should take place instanter
    or forthwith and it should not be disproportionate or exceed
    permissible limits.

    
    

14. 
    Thus
    in the Court a
    quo
    counsel for the appellant’s argued that the removal of the
    poles and insulators had not taken place instanter
    since those items had been there for some time, and that the act of
    removing them was disproportionate, suggesting that for respondent
    to rely on counter–spoliation it should have merely removed
    the lock on gate 1. In this Court Mr Mouton went as far as
    submitting that it was incumbent on respondent to prove that it had
    not acted disproportionately in removing the poles and insulators.

    
    

14. 
    Smuts
    AJ
    dealt with the requirements of counter–spoliation and reasoned
    as follows:

    
    

“The
requirement for counter–spoliation
that it should take place instanter,
namely that the act of counter–spoliation should be part of the
res
gestae
of the spoliation, would not in my view necessarily imply that the
act of counter–spoliation to secure access need be in respect
of the same access where the immediate spoliation had taken occurred.
Thus, a party who has been spoliated by being impeded at one access
point may be permitted to secure access at another point to secure
possession even if the blocking of the second point may have occurred
at a prior date. After all the primary purpose of counter-
spoliation and the remedy of spoliation is the restoration of
possession. This would in my view meet the requirement of instanter
and obviate the need to determine the question as to the timing of
these items having been placed in front of gate 2 to impede access
through gate 2.”

14. 
    The
    learned Judge went on to refer to cases where a liberal
    interpretation of instanter
    was urged as “against an overly detached arm chair view of
    matters ex
    post facto”
    to illustrate that the Court has a wider discretion, e.g. De
    Beer v Firs Investments Ltd,
    1980(3) SA 1087 (W); Ness
    and Another v Greef,
    1985(4) SA 641 (C).

    
    

14. 
    As to
    whether respondent justified the counter–spoliation through
    gate 2,
    it should be remembered first, that the gate was secured by wires,
    and the pile of poles and insulators was moved a short distance from
    their previous position. Secondly, it should be remembered that gate
    1, through which respondent had hitherto had unhindered access, was
    now locked with a padlock. To suggest or argue that by gaining
    access through gate 2 in the manner respondent did, respondent
    exceeded what was permissible in the circumstances, but would have
    been within the permissible limits if he had broken the lock at gate
    1 is akin to saying that an estranged husband or wife would be
    justified to break a new lock installed on the front door of a
    common house through which he had hitherto had unhindered access,
    but not justified to enter the house, in the absence of the other
    estranged spouse, through a half open window.

    
    

14. 
    Smuts
    AJ
    cited a number of cases in support of his statement at par [44] of
    his judgment that counter–spoliation is accepted by the common
    law as a defence to an act of spoliation, to mention but one, in
    Mans
    v Loxton Municipality and Another,
    1948(1) SA 966 (CPD) Steyn J considered the question at length (pp
    976 – 978) citing a number of authorities including common law
    writers on the subject to illustrate various formulations of the
    doctrine: (Van Leeuwen, Voet, Salkowski, Savigny and Huber) and
    ended with the following statement (at 977 – 978):

    
    

“Breaches
of the peace are punishable offences and to prevent potential
breaches the law enjoins the person who has been despoiled of his
possession, even though he be the true owner with all rights of
ownership vested in him, not to take the law into his own hands to
recover his possession: he must first
invoke the aid of the law: if the recovery is instanter
in the sense of being still a part of the res
gestae of
the act of spoliation then it is a mere continuation of the breach of
the peace which already exists and the law condones the immediate
recovery, but if the dispossession has been completed, as in this
case where the spoliator, the plaintiff, had completed his rescue and
placed his sheep in his lands, then the effort at recovery is, in my
opinion, not done instanter
or
forthwith but is a new act of spoliation which the law condemns.”

Smuts
AJ
pointed out that in Ness
and Another v Greef,
supra,
a full bench at 648 approved of a statement by Van der Merwe in
Sakereg
at 93 “that a Court has a wide discretion to approve an act of
counter–spoliation and to refuse the original spoliator against
the original possessor” and “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.”

14. 
    To
    sum up,
    Smuts AJ considered that securing access through gate 2 amounted to
    instanter
    recovery by respondent and respondent’s conduct justifiable,
    alternatively that respondent had a right to dispossess by securing
    access through gate 2, that there had been a form of consent in the
    form of the sale agreement. He refused the application for referral
    to oral evidence as unjustified in view of the nature of “the
    relief now sought”, “namely, to restore the poles and
    insulators to a place purely for the purpose of blocking access to
    gate 2, and that possession of those items remained in place and
    need not be restored.
    

    
    

[56] I
find the careful reasoning by the Court a
quo
on every aspect of this matter unassailable. It follows that the
appeal should be dismissed with costs and costs to include the costs
of one instructing and one instructed Counsel.. I so order.

_______________________

MTAMBANENGWE, AJA

I concur.

_______________________

MARITZ, JA

I also
concur.

_______________________

STRYDOM, AJA