REPORTABLE CASE NO: SA 20/2009

IN
THE SUPREME COURT OF NAMIBIA

In
the matter between:

Coram: MARITZ,
JA, CHOMBA, AJA et LANGA, AJA

Heard on: 08/03/2010

Delivered
on: 26/10/2010

_________________________________________________________________

APPEAL JUDGMENT

LANGA,
AJA:

1. This
   is an appeal from the judgment of Parker J in the High Court of
   Namibia, delivered on 23 June 2009, in which the application by
   Horst Kock trading as Ndhovu Safari Lodge (the appellant), was
   dismissed with costs. Three respondents were cited but only the 1^st
   respondent, trading as Mahangu Safari Lodge, opposed the
   application. The other two respondents did not oppose the
   applicant’s claim and played no part in the litigation and
   will not be referred to any further. The 1^st respondent
   will be referred to merely as the respondent. The matter
   concerns a dirt feeder road which connects two adjacent lodges to a
   public road in the Hambukushu Tribal Authority in the Kavangu
   Region.
   

   
   

2. The
   facts are largely common cause. The feeder road, which traverses
   public space in a communal area, is not a proclaimed road as defined
   in the Roads Ordinance, 1992 (Ordinance 17 of 1992). As described
   by Parker J, in his judgment, “[a] part of the length of the
   feeder road lies in a flood plain and during rainy seasons the
   vicinity of the feeder road gets flooded and so it is not easily
   passable.” Before the events that led to the dispute arose,
   the feeder road was used freely by the occupants, staff and guests
   of the two lodges. The trouble began when the respondent effected
   improvements on part of the feeder road by upgrading or building-up,
   as Parker J describes it, “a longitudinal part of the feeder
   road for a distance of about 200m in the vicinity of the flood plain
   and to the south of the point where there is a trifurcation of the
   feeder road to the two lodges and a third lodge.” The
   respondent thereafter erected a lockable and manned gate on the
   longitudinal part of the feeder road that had been upgraded and
   allowed everybody, including the appellant’s employees, to use
   the upgraded longitudinal part of the feeder road, but excluded the
   appellant and guests of the appellant’s lodge. The respondent
   did not block the rest of the feeder road, namely, the unimproved
   portion, from use by the appellant. It is the exclusion described
   above that led to the appellant’s challenge.
   

   
   

3. Parker
   J posed the problem as follows: was the appellant in peaceful and
   undisturbed possession of the 200 metre upgraded longitudinal part
   of the feeder road at the time the appellant contends the respondent
   deprived him thereof? I would pose the question in a slightly
   different way, namely: did the appellant have peaceful and
   undisturbed use of the feeder road, including the 200 metre
   longitudinal part that was later upgraded, at the time respondent
   interfered with it and blocked that improved portion from being used
   by the appellant? Depending on the answer, the next question might
   be whether or not this use, which is referred to in the papers
   variously as the appellant’s “right of way,”
   “right to access,” “right to use the road”
   or a “clear right to use the road,” constituted a type
   of possession that, in law, qualified for the protection of the
   mandament van spolie.
   

   
   

4. The
   remedy has found recognition in the modern Namibian common law (Ruch
   v Van As
   1996 NR 345 (HC) and it is trite that it is available to protect
   possession. (Kuiiri
   and another v Kandjoze and others
   2007 (2) NR 749;¹
   Nino
   Bonino v De Lange
   1906 TS 120; Nienaber
   v Stuckey
   1946 AD 1049; Yeko
   v Qana
   1973(4) SA 735 (A); Shoprite
   Checkers Ltd v Pangbourne Properties Ltd
   1994(1) SA 616 (W)). What gives rise to controversy is the nature
   and ambit of the remedy. What is clear is that since it is a
   possessory remedy, it serves as a counter against spoliation.
   (Silberberg
   and Schoeman:
   The Law
   of Property,
   5^th
   edition at 287). Its purpose is to provide robust and speedy relief
   where spoliation has occurred to restore the status
   quo ante
   because, as stated by Van Blerk JA in Yeko
   v Qana,
   1973(4) SA 735 (A), of the “...fundamental principle that no
   man is allowed to take the law into his hands and no one is
   permitted to dispossess another forcibly or wrongfully and against
   his consent ‘of the possession of property, whether movable or
   immovable’ ....”²
   In Shoprite
   Checkers Ltd v Pangbourne Properties 1994(1)
   SA 616 (W)
   Zulman
   J stated:

   
   

“It is trite that the purpose of
the mandament van spolie is to protect possession without having
first to embark upon an enquiry, for example, into the question of
the ownership of the person dispossessed. Possession is an important
juristic fact because it has legal consequences, one of which is that
the party dispossessed is afforded the remedy of the mandament van
spolie...”

5. Does
   the protection of the mandament van spolie extend to incorporeals?
   In Nienaber v Stuckey 1946 AD at 1056 it was held that the
   possession of incorporeal rights is protected against spoliation and
   in Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi 1989 (1)
   508 (A), the Appellate Division of South Africa held that the
   mandament van spolie is available for the restoration of lost
   possession in the form of quasi-possession which, in that case,
   consisted in the actual use of a right of servitude. I understand
   this to refer to the limited role of the mandament van spolie and to
   mean that although an incorporeal thing like a servitude was
   incapable of physical detention, it was indeed capable of being
   quasi-possessed by the actual use of the servitude. Hefer JA stated
   that, “[t]he status quo that the spoliatus desired to
   restore by means of the mandament van spolie was the factual
   exercise of the servitude, and not the servitude itself.”
   What one extracts from these decisions, and others such as Shoprite
   Checkers supra, Zulu v Minister of Works, KwaZulu and Others, 1992
   (1) SA 181 (T) is that the true purpose of the mandament van spolie
   is not the protection and vindication of rights in general, but
   rather the restoration of the status quo ante where the
   spoliatus has been unlawfully deprived of a thing, a movable or
   immovable, that he had been in possession or quasi-possession of.
   Thus in Zulu, 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
   also Plaatjie and Another v Olivier NO and Others, 1993 (2)
   SA 156 (O) at 159F). These principles, with which I respectfully
   agree, were further clarified, specifically in relation to
   quasi-possession, in ATM Solutions (Pty) Ltd v Olkru Handelaars
   cc and Another, 2009 (4) SA 337 (SCA) at 340 - 341 where Lewis
   JA quoted with approval remarks by Malan AJA in the First Rand
   Ltd t/a Rand Merchant Bank and Another v Scholtz NO and Others, 2008
   (2) SA 503 (SCA) at p 510:

   
   

“... The cases where
quasi-possession have been protected by a spoliation order have
almost invariably dealt with rights to use property (for example,
servitudes, or the purported exercise of servitudes ... or an
incident of the possession or control of the property. The law in
this regard was recently succinctly stated in First Rand Ltd v
Scholtz (footnote omitted) where Malan AJA pointed out that - ...
[t]he mandament van spolie does not have a ‘catch-all function’
to protect the quasi-possessio of all kinds of rights
irrespective of their nature. In cases as where a purported servitude
is concerned the mandament is obviously the appropriate remedy, but
not where contractual rights are in dispute or specific performance
of specific obligations is claimed. Its purpose is the protection of
quasi-possession of certain rights. It follows that the nature of the
professed right, even if it indeed not be proved, must be determined
or the right characterized to determine whether its quasi possession
is deserving of protection by the mandament.” (See also The
Three Musketeers Properties (Pty) Ltd and Another v Ongopolo Mining
and Processing Ltd and 2 Others (unreported) Supreme Court case
SA 3 of 2007.

Finally,
spoliation is committed also when a co-possessor unlawfully takes
over exclusive control of the thing. (See Du Randt v Du Randt
1995 (1) SA 401 (O)).

6. What
   is the essence of the relief sought by the appellant? Quite clearly
   he approached the court to seek the restoration of the status
   quo ante that
   had been disturbed by the respondent. It is indeed the exercise of
   a right that appellant has been unlawfully deprived of and all he
   wants is the restoration of the exercise of the specific right that
   has been unlawfully taken away from him. He is not suing for the
   realisation or enforcement of a right in the widest sense. What is
   sought is not specific performance of a contractual obligation; but
   the restoration of the factual position that had obtained, until the
   respondent intervened. That factual position bears repeating: The
   feeder road was in the communal area and was used by both the
   appellant and the respondent, their guests and their employees,
   freely and for an appreciable time. The respondent changed this
   state of affairs vis-a-vis
   the appellant. He blocked appellant’s right to use that
   particular portion of the feeder road and, by his conduct, claimed
   exclusive control over it. It is irrelevant that the appellant could
   have created for himself, other routes or adopted other means of
   self-help. He had been deprived of the use of a portion of the road
   that he had enjoyed usage of freely, without having to ask anybody
   for permission, and that gave him access to the public road.
   However one characterizes the right that had been exercised by the
   appellant, it came to an abrupt stop and that constitutes a
   deprivation perpetrated by the respondent, and this without invoking
   an order of a court of law. It is a classic case of taking the law
   into one’s own hands. In this context, it is relevant to
   highlight the public character of the feeder road. It is common
   cause, and judicial notice may be taken of these facts, that in
   terms of legislative provisions, the communal land on which the
   feeder road is was vested in and placed under the control of the
   Government of Namibia by Article 124 read with Schedule 5 of the
   Constitution³.
   The respondent has argued that the mandament van spolie is not
   available or applicable in this case because there is no question of
   the applicant having had possession, or quasi possession of the
   improved portion of the feeder road. Instead, the essence of the
   argument went, the appellant was seeking to exercise some
   non-descript right and had failed to demonstrate that it was a right
   in respect of which the relief of mandament van spolie was
   available. By now it is settled law that the possession of
   incorporeal rights is protected against spoliation. (See Nienaber
   v Stuckey, 1946
   AD at 1056). In the Bon
   Quelle
   case it was held that the mandament van spolie is available for the
   restoration of lost possession, in the sense of quasi possession,
   which in that case consisted in the actual use of a right of
   servitude. However, Hefer JA, speaking for the Court, refused to
   accept that a servitudal right had to be proved for the institution
   of a spoliation order, since that would amount to an investigation
   of the merits of the case. I am in respectful agreement with the
   learned Judge of Appeal. In this context, I hold further that the
   usage exercised by the appellant was one protected by the mandament
   van spolie. The decision in Zulu
   is
   accordingly distinguishable from the present case. It follows that
   the appeal must be upheld and the judgment of the court a quo must
   be set aside.

   
   

7. There
   is, to my mind, no reason why the order of costs should not follow
   the result. Both in the rule nisi and in argument before this
   Court, the appellant insisted on a special order of costs in the
   application a quo. It is true that the respondent had taken
   the law into his own hands, and that is in fact the essence of the
   wrong that he committed. His attitude towards the appellant could
   be described as rather high-handed, particularly, if one has regard
   to the proprietary terms with which he referred to the disputed
   portion of the feeder road as “his” road. It is
   precisely this type of conduct which could easily lead to the
   disturbance of the public order. (See Ross v Ross, 1994(1)
   SA 865 (SECLD)). I however consider that this is not a case in which
   a special order for costs should be ordered. It may well be that the
   respondent was badly advised (and the Court a quo apparently
   agreed with that advice). The circumstances in my view do not
   justify a special order of costs and I have accordingly proposed an
   ordinary costs order.

   
   

8. In
   the premises, the following order is made:

   
   

(a) The appeal is upheld
and the judgment and order of the Court a quo are set aside
and replaced with the following:

“Paragraphs 2.1 – 2.3 of
the rule nisi issued on 15 February 2008 are confirmed with
costs, such costs to include the costs of one instructing and one
instructed counsel.”

(b) The First Respondent
is ordered to pay the costs of the appeal, such costs to include
those consequent to the employment of one instructing and one
instructed counsel.

___________

LANGA
AJA

I
agree.

_____________

MARITZ
JA

I
agree.

_____________

CHOMBA
AJA

Counsel on behalf of
Appellant: Mr. J. A. N. Strydom

Instructed
By: Diekmann Associates

Counsel
on behalf of 1^st Respondent: Mr. H. Geier

Instructed
By: Du Pisani Legal Practitioners