Hoageys Handicraft (Pty) Ltd and Another v Vilane (52/10) [2011] SZSC 17 (31 May 2011);

 

IN THE SUPREME COURT OF SWAZILAND

 

 

HELD AT MBABANE                        CIVIL APPEAL CASE NO. 52/2011

 

 

In the matter between:

 

 

Hoageys Handicraft (Pty) Ltd                        1^st Appellant

Dumsane Mngomezulu N.O.                           2^nd Appellant

 

Versus

 

Rose Marshall Vilane                                      Respondent  

 

 

 

Coram:                                                             Ramodibedi CJ

                                                                        Moore JA

                                                                        Farlam JA

                                                                                                                                               

For The Appellant                                            Mr. Z. Shabangu

 

 

 

 

SUMMARY

 

Respondent evicted from her property – Her residence and other buildings destroyed – some materials carried away by First Respondent – Other materials reduced to rubble – Respondent and her household forced to seek shelter from The RED CROSS in the dead of winter – No Order of Eviction made by Court – Warrant of Execution (Eviction) Invalid – Appointment of employee of First Appellant as ad hoc Deputy Sheriff improper – Authority to ad hoc Deputy Sheriff to effect service of All Court Processes does not confer authority upon Deputy Sheriff to Execute Warrant of Execution (Eviction).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

__________________________________________________________________

JUDGMENT

__________________________________________________________________

 

MOOREJ.A

 

OPENING

 

[1]    This is an appeal against the judgment of Mabuza J of the 22 October 2010 and the order that:

 

“The Respondents are directed to restore possession of the remaining extent of Farm No. 261 situate in the Lubombo region to the Applicant and such restoration to include the re-erection of all the structures and fencing demolished by the Respondents on the 19^th July 2010.

 

The Respondents are directed to pay the costs of this application on the ordinary scale together with the certified costs of counsel in terms of rule 68 (2) of the High Court Rules.”

 

BACKGROUND

 

[2]    The Respondent Rose Marshall Vilane is the widow of the late Antony Tinyo Vilane who died in the year 2007.  Having done so for some 12 years previously, on the 19^th July, 2010, the Respondent was living on property described as remaining extent of Farm No. 261, Lubombo region together with five other persons including three pre-school children.  It is common cause that on that day, a certain Moses Motsa, hereinafter Motsa, a Director of the First Respondent, and the Second Respondent, hereinafter the Deputy, went to the property where the Respondent and her household were living.  The Deputy was armed with a “Warrant of Execution (Eviction)” dated 24^th June, 2010.  Both the Deputy and Motsa told the Respondent that they had come to evict her from the property.  The Respondent refused to vacate the house on the ground that the property belonged to the Vilane family. 

 

[3]    Motsa and the Deputy were not deterred.  Motsa left the scene but returned later with some 20 or more men and equipment to assist in the eviction of the Respondent.  By the time the party had completed their displacement of the Respondent, the house and other structures were totally demolished.  The fencing was brought down.  Those sheets of corrugated iron and roof timbers which had not been extensively damaged were loaded into Motsa’s trucks and taken away.  All the roof tiles were completely damaged and were left in the rubble.

 

[4]    The Respondent and her household had been deprived of their shelter with stunning suddenness.  Exposed as they were to the severe cold of the Swaziland winter, they were reduced to living in a tent provided by BAPHALALI RED CROSS.  The Respondent consulted her lawyers upon whose advice she brought an application in Case No. 1537/10, for, inter alia, an order.

“Directing the Respondents to restore possession of

the remaining  extent of Farm No. 261 situate in the

Lubombo Region to the Applicant and such restoration to

include re-erection of all the structures and fencing

demolished by the Respondents on the 19^th July 2010.”

 

[5]    Mabuza J. by whom the Respondent’s application was heard observed that the First Appellant’s combined summons seeking the Respondent’s eviction had come before Agyemang J on the 21^st June 2010 and not the 11^th June 2010 as stated in the alleged warrant.  Mabuza J noted that Agyemang J did not grant the orders sought but rather “raised a query to the following effect:

 

‘order sought unclear in face of prayers (a) and (b)’” 

 

[6]    Indeed, a photocopy of the query raised by Agyemang J in that Judge’s handwriting and signed by her forms part of the record at page 59.

 

[7]    Although the First Appellant herein was not granted the order which it sought, according to the finding of Mabuza J, “The Attorneys for the 1^st Respondent (Plaintiff) went ahead and issued a warrant for the Applicant’s eviction.”  This sinister Warrant of Execution (Eviction) purported to direct the Sheriff or her Deputy for the District of Manzini, “pursuant to judgment of the above Court granted on the 11^th June 2010, in favour of the above named Plaintiff,” to evict Rose Marshall Vilane from the subject property.  No order of any kind, was annexed to the warrant.

 

[8]    By some mysterious process which has never been explained, this “warrant” dated 24^th June, 2010 which was purportedly signed by someone whose indecipherable hieroglyph appears above the expression Sipho Matse–Attorneys, was said to have been signed by the Registrar of the High Court below the stamp of the High Court, and above the legend:  “To: THE REGISTRAR OF THE HIGH COURT MBABANE”.  This worthless “warrant” tells a lie about itself upon its face in as much as no judgment of the High Court of Swaziland was ever granted as claimed by the Appellants.  It follows therefore that all acts done upon the strength of the invalid warrant are wrongful, unlawful and of no legal force and effect whatever.  The actions taken by the Appellants based, as they allege, upon the advice of their Attorney, have had devastating effects upon the Respondent, upon the members of her household, and upon her property.  The question which must now be determined is that of the appropriate remedy or remedies  which the Court a quo was empowered to grant to the Respondent.

 

        THE APPEAL

 

[9]    The appeal appears to be based upon the following premises:

 

1. The Appellant is the owner of the property being the remaining extent of Farm 261 situate in the Lubombo District.
2. The First Appellant instituted proceedings in the Court a quo for the eviction of the Respondent from the said property.
3. At all relevant times, Motsa and the First Appellant had acted upon the advice of their Attorneys Sipho–Matse whom the First Appellant had instructed to take all legal steps necessary to obtain an Eviction Order.
4. The First Appellant was thereafter advised by its Attorneys that an Eviction Order had been granted by the High Court of Swaziland.
5. The Attorneys also advised that a Warrant of Eviction had been issued pursuant to the grant of a Default Judgment in the First Appellant’s favour.
6. Motsa was shown the Warrant of Eviction which had been duly signed by the Registrar of the High Court and which bore the Registrar’s Office stamp.
7. Upon the strength of the “Warrant of Eviction” the Second Appellant was instructed to carry out the eviction in line with the Warrant of Eviction.
8. The First Appellant merely provided the requisite muscle, men and machinery with which to assist the Second Appellant in carrying out what it believed to be the Court ordered eviction.
9. Having been duly served with the Warrant of Execution, the Respondent was evicted from the property.  The house that accommodated her on the farm was demolished in the process of effecting the eviction in terms of the warrant.

 

[10]  The Appellants argue that eviction proceedings were instituted before the Court a quo pursuant to a Warrant of Execution issued through the office of the Registrar of the High Court in terms of which the Appellants acted in evicting the Respondent.  They conveniently omit to disclose that the fons et origo of that warrant upon which they seek to place much store was not a lawful order of the Court a quo but rather a false representation made by their Attorney that a judgment of the Court had been granted in their favour. 

 

[11]  No explanation has been offered for what is at the very least a serious case of professional negligence by their Attorney who must shoulder full responsibility for presenting a document which is patently false for the signature of the Registrar who, if he did sign the invalid warrant, must be assumed to have done so upon the representation by the Sipho-Matse Attorney concerned that it was genuine. 

 

[12]  Another disturbing feature about the case is that the Second Appellant is an employee of the First Appellant’s Attorneys.

 

[13]  It  has repeatedly been stressed that it is undesirable that a Deputy Sheriff should serve process in matters in which he is a party or has an interest and that to avoid the problem arising a ‘suitable independent person’ should be appointed to effect service:  See Herbstein and Van Winsen, The Civil Practice of the High Courts of South Africa, 5^th Edition, Vol. 1, page 344.

 

[14]  It is clear that the Second Appellant cannot be described as a ‘suitable independent person’.  It is not clear on the record why it was considered necessary for an ad hoc Deputy Sheriff to be appointed to serve the process in this case but what is clear is that Second Appellant should not, because of his interest, have been appointed.

 

[15]  The Appellants sought assistance from the South AfricanAppellate Division Case ofNati and Others v Vereeniging Town Council and Another 1953 (4) S.A.  579 (A.D.) in support of the proposition that ejectment that is effected by a Messenger of Court under a warrant which covers the action he takes as authorised and required by process of Court does not amount to resorting to self-help while the writ stands.  According to Centlivres C.J. at page 583 C:

 

“The warrant which was issued pursuant to the judgment obtained against Sheshe went further than Form No. 34 which is contained on the First Annexure to the Magistrates’ Courts Rules.  That form contains these words:

‘This is to authorise and require you to put the Plaintiff into possession of same (i.e the premises in respect of which an order of ejectment had been obtained) by removing therefrom the said defendant for which this shall be your warrant.’”

 

[16]  His Lordship noted at page 585 A that “The ejectment was effected by the messenger acting under a warrant issued by the Clerk of Court which granted the ejectment order.  Emphasis added.  Van den Heever J.A was of the same mind when he wrote at page 589 H that “The ejectment of Plaintiff’s property was effected by the messenger under a warrant which covered the action he took, for he was authorised and required by process of Court” to do a specific and specified act:

‘to put the said Plaintiff into possession of the same (i.e

the premises) by removing therefrom the said Defendant

or any person claiming through and under him.’”

 

 

[17]  Van den Heever J.A stated the law even more clearly at page 590 F in this way:

“Under a judgement ordering ejectment the Plaintiff is entitled to unrestricted possession of the premises in question.”  Emphasis added.

 

[18]  The excerpts quoted above are reflected in the summary at page 579 parts of which read:

 

“Court granting judgment of ejectment against holder of site permit in location – Warrant directing messenger to remove Defendant – Warrant not invalid.”  Emphasis added.

 

[19]  The true Import and ratio therefore of Nati and Others is that for an ejectment or eviction to take place lawfully in Swaziland there must be:

 

1. a judgment of a Court of competent jurisdiction granting an order for ejectment or eviction as the case may be
2. a valid warrant directing the Sheriff or her Deputy to evict the Respondent from the premises in question
3. a valid appointment and authorisation of a Deputy Sheriff for the express purpose of Executing a Warrant of Ejectment or Eviction and specifying the action which the appointee is authorised to take.
4. Execution Action ONLY as authorised in the Warrant of Ejectment or Eviction.

 

[20]  I have been unable, with assistance, to find a High Court form applicable to Warrants for Ejectment or for Decree For Delivery up of Possession of Premises similar to Form No. 27 in the First Annexure to the Magistrates Courts Act No. 66/1938.  That form which I reproduce below appears to be consistent with the principle that a Warrant of Ejectment does not authorise, in the absence of a specific directive, the demolition of building and structures, the destruction of property and the appropriation of property.  Here is a copy of Form No. 27.

 

No. 27 – WARRANT OF EJECTMENT OR FOR DECREE FOR DELIVERY UP OF POSSESSION OF PREMISES

(Heading)

        To the Messenger of the Court.

                Whereas in this action the said plaintiff on the …………..

Day of ……… 20 …….. obtained judgment for the ejectment of the said defendant from the premises known as ………………..

 

        This is to authorise and require you to put the said plaintiff into possession of the same by removing therefrom the said defendant and all persons holding through or under him for which this shall be your warrant.

 

[21]  The authority conferred upon an ad hoc Deputy Sheriff is confined solely to those matters which he is authorised to do in his instrument of appointment.  It is common cause that in his instruments of appointment of the 12 May 2010 and the 25 June 2010, the Second Appellant was authorised only “to effect service of All Court Processes.” Assuming for the moment that the warrant was valid, the ad hoc Deputy Sheriff was not authorised to Execute a Warrant of Execution (Eviction).  But even if he was, the words of the “Warrant” directed him “to evict” the Respondent.  It did not empower him to demolish the house and other structures, carry away sheets of corrugated iron and roof timber, and completely damage the roof tiles leaving them in the rubble. 

 

[22]  The noun “eviction” is defined in the Oxford Dictionary of Law as “The removal of a tenant or any other occupier from occupation.”  The verb “to evict” is defined in the Concise Oxford Dictionary as “to expel (someone) from property, especially with the support of the law.”  Black’s Law Dictionary also defines “to evict” as “to expel” a person from real property by legal process.  None of these definitions includes the destruction or appropriation of property as an element of the process of eviction.  The conduct of the Appellants at the home of the Respondent on that wintry day amounted to a pitiless case of strong armed lawlessness against a defenceless widow and her pre-school children.

 

[23]  In order to ensure that some at least of the unsatisfactory features in this case never occur again we are strongly of the view that when applications are made for the appointment of ad hoc Deputy Sheriffs the Applicant should make an affidavit motivating the need for the appointment and demonstrating that the proposed appointee is a suitable independent person and the suggested appointee should confirm on oath what is stated about him or her.

 

[24]  We are also strongly of the view that when an Attorney prepares a Court Order to be issued by the Registrar he or she should exhibit the note on the file or a draft written or initialed by the Judge or his or her Secretary indicating that the order has indeed been made and what the terms thereof are.

 

[25]  I turn now to consider Mr. Shabangu’s submission that Mabuza J erred in ordering the Appellants to re-erect all the structures and fencing demolished by them on 19^th July 2010.

 

[26]  He relied for this submission on two South African decisions, Rikhotso v Northcliff Ceramics (Pty) Ltd and Others 1997(1) SA 526 (W)and Tswelopele Non-Profit Organization and Others v City of Tshwane Metropolitan Municipality and Others 2007 (6) SA 511 (SCA).

 

[27]  Although the point had not been raised by the Appellants in the Court below, Mr. Shabangu submitted that the Appellants were entitled to raise the point on appeal because, so he contended, it was clear from paragraph 14 of the Founding Affidavit, that the legal position as expounded in the two cases on which he relied was applicable on the facts of the present case.

[28]  Paragraph 14 of the Founding Affidavit deposed to by the Respondent reads as follows:

 

‘The House and other structures were demolished.  The fencing was brought down.  Those sheets of corrugated iron and roof timber which had not been extensively damaged were loaded into Motsa’s trucks and taken away.  All the roof tiles were completely damaged and were left in the rubble.  I was made a laughing stock.’

 

[29]  She had earlier said that she was living at the time in a house on the farm with five other people, including three pre-school going children.  In paragraphs 7, 10 and 11 she stated that after the Second Respondent had arrived on the property on the 19^th July 2010 with the so called ‘warrant of execution (eviction)’ he advised Mr. Moses Motsa, a Director of the First Appellant, who had accompanied him to the property, to get his employees so that the Respondent could be removed by force, whereupon ‘Motsa … drove back to town [presumably Siteki]  and came back with more than twenty men.  They were in two trucks and a caterpillar.’  None of these averments were disputed by the Second Appellant, the ad hoc Deputy Sheriff, except for the allegation that the Respondent was made a laughing stock.  Mr. Motsa, the Director of the First Appellant, however, in responding to paragraph 14 of the Founding Affidavit, admitted that the structures were demolished but denied ‘that corrugated iron and any roof timber was loaded,’ adding that ‘the Respondent is put to strict proof that thereof.’  In view of the Second Respondent’s admission in his affidavit of the Respondent’s allegation in this regard it is difficult to take Mr. Motsa’s denial seriously.

 

[30]  In his argument before this Court Mr. Shabangu did not dispute the principle that when a spoliation order is granted the spoliator may be required to restore the property to its former state.  (See in this regard PricePossessory Remedies in Roman Dutch Law in the passage cited with approval by Rumpff J inZinman v Miller 1956 (3) SA 8 (T) at 11 A).

 

[31]  In Zinman’s case (at 11 D – E) reference was made to a precedent to be found in Van der Linden’sVerhandeling van de Judicieele Practycq, 21.1 relating to the removal of a fence, where the claim is set out as follows:

‘to repair everything to put it in its former state or cause it to be so put, as it was before the said spoliation was committed’ (my translation)’ 

 

[32]   The spoliation complained of in Zinman’s case concerned the unlawful removal of the main panel from the electrical meter chamber in the Applicant’s house and the cutting of the electric wiring.  The Court, applying the principle to which I have referred, ordered the spoliator to replace the panel and reconnect the wires so as to ensure the flow of electrical current to the applicant’s premises.

 

[33]  Mr. Shabangu, as I have said, did not dispute that the principle applied in that case but contended that the present case was distinguishable because restoration of the status quo ante was objectively impossible because, as he put it, ‘it is common cause that the order for restoration was granted in circumstances where the property in issue (being the house and the fence erected around it) had ceased to exist.’

 

[34]  He submitted further that this Court should not follow the judgment of the Cape Provincial Division in Fredericks v Stellenbosch Divisional Council 1977 (3) (C), on which the learned Judge in the Court a quo relied because it had been held to have been incorrectly decided on this point by the South African Supreme Court of Appeal in the Tswelopele Non Profit Organization case on which he relied.

 

[35]  In my view it is unnecessary for us to decide whether the Fredericks case was incorrectly decided on this point.  I say this because the Rikhotso and Tswelopele cases were not decided on the basis that the dwellings of the applicants for spoliation orders had ceased to exist as such, despite the fact that materials from which they were constructed still existed.  In both cases the judgments were based on the fact that the materials used were combustible and were burnt.  Thus in Rikhotso the dwellings in issue had been ‘substantially if not totally destroyed’ and ‘the status quo ante [could] be restored only by substituting the former dwellings with new dwellings.’ (See the judgment at 53 D).  Similarly in Tswelopele, Rikhotso was approved and it was stated (at 521 B-C) that possession cannot be restored by substitution.  In that a case also, the ‘pieces of plastic and other waste materials’ [the applicants] had salvaged from surrounding building sites to construct their homes were put to the torch’ (see at 513 B-C).

 

[36]  In the present case, as has been seen, that is not what happened.  It is not suggested on the papers that substantial reconstruction of the structures and fencing is not possible.

 

[37]  It may be that total reconstruction is not possible but if the appellants do all that they reasonably can it will not be possible for the Respondent to contend that they are in contempt for non-compliance.

 

[38]  In the circumstances I am satisfied that the appeal must fail on this point also.

 

[39]  The following order is made:

        The appeal is dismissed with costs.
 

CONCLUSION

 

[40]  The circumstances of this case cry out for a thorough investigation into the following questions as to how:

 

1. Sipho Matse–Attorneys came to issue the unauthorised Warrant of Execution (Eviction) in the absence of a judgment of the Court.

 

1. the signature of the Registrar of the High Court came to be affixed to that invalid warrant.

 

1. the representations made to the Sheriff by the Appellants led to the Sheriff appointing the Second Appellant as a Deputy Sheriff when the Second Appellant was an employee of the Attorneys for the First Appellant.

 

 

 

 

 

 

_______________________

                                                        S. A. Moore

                                                        Justice of Appeal

 

                                                        ________________________

I agree                                              M. M. Ramodibedi

                                                        Chief Justice

 

                                                       

 

________________________

I agree                                              I. G. Farlam

                                                        Justice of Appeal

 

                                                       

 

 

 

Delivered in open court on this 31^st day of May 2011.