REPORTABLE
IN THE SOUTH GAUTENG HIGH COURT

Case Number: A5042/2010
Date: 03/12/2010
In the appeal between:

THE OCCUPIERS OF CHUNG HUA MANSIONS

And

STATION COMMANDER, JOHANNESBURG

JUDGMENT

"2.      Declaring the eviction of the Applicants unlawful;

4. That failing the Respondents complying with paragraph-3 hereof within two hours of this order being served on them, the Applicants are authorised to obtain the services of a locksmith to open the property to afford the Applicants access thereto;
5. Following restoration of the property to the Applicants, the Respondents are interdicted and restrained from taking any steps or performing any conduct, whether acting personally or through the agency of any other person, with the intention or effect of evicting the Applicants from the property without an order of court entitling them to do so.
6. Declaring that the First, Third, Fourth and Fifth Respondents are in contempt of the order of this Honourable Courts.
7. Ordering that the First, Third, Fourth and Fifth Respondents shall be sentenced to a fine which shall be suspended on condition that the Respondents shall not within the next 20 years, evict the Applicants from the property without an order of court authorising the eviction.
8. Ordering that the Respondents, jointly and severally, the one paying the other to be absolved, pay the costs of this application on the scale as between attorney and client."

THE BACKGROUND FACTS
[3]     The following facts are common cause or undisputed:
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2.1 Declaring that the eviction by Mahomed and two corporate entities of the occupiers of the property was unlawful;
2.2 Directing Mahomed and the other respondents in that case to restore possession of the property to the occupiers of the property; and
2.3 Interdicting Mahomed and one of the corporate entities from taking steps with the intention of evicting the occupiers from the property without an order of court entitling him to do so.

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3.1 Declaring that the eviction of the occupiers of the property was unlawful;
3.2 Directing Mahomed and the other respondents in that case (including the present third to fifth respondents) to restore possession of the property to the occupiers of the property; and

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[4]     This appeal raises the following questions:
1. The applicability of the legal principle known as "counter-spoliation".
2. Whether or not the appellants were in peaceful and undisturbed possession of their homes on the property.
3. Whether or not the appellants were evicted or consented to leave their homes by their own free will.
4. Whether or not the respondents were in contempt of this court

COUNTER-SPOLIATION

[6] It is necessary for any court to inform the parties of any point of law, fact or other aspect of the case at hand which it wishes to raise in judgment that has not been dealt with previously. The way to do this is to inform the parties and/or their legal advisers of the court's desire to deal with it and call for their responses in regard thereto. The parties may wish not to respond to such invitation, in which case the court may justifiably proceed in handing down its judgment raising the new aspect. On the other hand, if the parties want to respond, they can be invited by the court to raise the issue in oral argument before the presiding officer in open court at a time suitable to all concerned. At such an occasion a party may wish to apply for an amendment to the pleadings or apply for leave to re-open his case and lead further evidence. The court will then have to decide on the appropriate course as justice may demand. Alternatively, the parties may wish to respond by submission of further written argument. In the latter instance it is important to allow the plaintiff or applicant the same rights normally afforded in court, i.e. by replying to any argument advanced by the other side.

[7] In the absence of affording the parties the aforesaid right to deal with any new aspect which a court wishes to raise, it is improper for a court to deal with a point of law or fact not raised by either party ^ for the first time in its judgment.

PEACEFUL POSSESSION
[9] In a spoliation application the court will not entertain the merits of the dispute regarding the lawfulness of the applicant's possession. All that need to be established is:
1. That the applicant was in peaceful and undisturbed possession of the thing; and
2. That the respondent unlawfully deprived him of possession.
Upon establishing these facts, the applicant is entitled to restoration of possession he exercised prior to the spoliation.

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[12] In my view, the common cause facts clearly indicate that the appellants were indeed in peaceful and undisturbed possession of the property.

EVICTION OR CONSENT?
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2. The respondents' own evidence that the appellants repelled them from the property just three days before the eviction.20

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11. The respondents allege that the commotion on 9 August was instigated by committee members who incited the people to violence. According to the first respondent the "fifth respondent was informed" of this. There is no allegation from whom this information came or how it was established. It is a bald statement unsupported by any credible evidence. The only reasonable inference to be drawn is that the violence was not instigated by committee members and/or the appellants and that it ensued from the forcible eviction of the appellants.

[15] It must therefore be accepted that the appellants did not vacate their homes in the respondents' property, voluntarily but were forcibly evicted by the respondents.

CONTEMPT OF COURT
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CONCLUSION

[21] For the reasons set out above I am of the view that the appeal should be upheld and the following order is issued:
1. The appeal is upheld.

"1.     The eviction of the applicants is declared to be unlawful.

3. Following upon the restoration of the property to the applicants, the respondents are interdicted and restrained from taking any steps or performing any conduct, whether acting personally or through the agency of any other person, with the intention or effect of evicting the applicants from the property without a court order entitling them to do so.
4. It is declared that the first, third, fourth and fifth respondents are in contempt of the order of court handed down by Kgomo J in this court on 12 October 2009.
5. The first, third, fourth and fifth respondents are each ordered to pay a fine of R100 000.00, suspended on condition that they shall not within the next twenty years evict the applicants from the property without a court order.
6. The first, third and fifth respondents are ordered, jointly and severally, the one paying the other to be absolved, to pay the costs of this application on the scale as between attorney and client."

DATED THE 3rd DAY OF DECEMBER 2010  AT JOHANNESBURG

C. J. CLAASSEN

I agree

P. BLIEDEN

I agree

V. NGALWANA

The appeal was argued on 1 December 2010