Khan v J&A Holtzhausen Properties (Pty) Ltd (2438/23) [2024] ZAWCHC 443 (13 February 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Western Cape High Court, Cape Town South Africa: Western Cape High Court, Cape Town You are here: SAFLII >> Databases >> South Africa: Western Cape High Court, Cape Town >> 2024 >> [2024] ZAWCHC 443 | Noteup | LawCite sino index ## Khan v J&A Holtzhausen Properties (Pty) Ltd (2438/23) [2024] ZAWCHC 443 (13 February 2024) Khan v J&A Holtzhausen Properties (Pty) Ltd (2438/23) [2024] ZAWCHC 443 (13 February 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAWCHC/Data/2024_443.html sino date 13 February 2024 IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE DIVISION, CAPE TOWN) CASE NO: 2438/23 In the matter between: ASLAM KHAN APPELLANT and J&A HOLTZHAUSEN PROPERTIES (PTY) LTD RESPONDENT JUDGMENT Barendse AJ Judgment delivered electronically on 13 February 2024. [1]      This judgment follows on arguments presented by the parties on the postponed return day of the rule nisi previously issued in a spoliation application brought by the applicant. The spoliation order was granted on an ex parte basis on 10 February 2023. Factual Background [2]      It is trite law that the requirements for a successful spoliation application are very narrow. The remedy is regarded as a speedy, often drastic form of interim relief. [3]      A successful applicant needs to satisfy the court that he/she /it enjoyed peaceful and undisturbed possession of the property or rights in question and that this possession was wrongfully disturbed by the respondent. [4]      The relief sought by applicant when launching an urgent application was for the electricity supply to premises occupied by him to be restored. [5]      Applicant declared under oath that he was the lessee of business premises situated at 5 Reed Street, Bellville. The respondent was the lessor. The lease was for a duration of years and terminated on 30 August 2022. Applicant attached a copy of the lease to his founding affidavit. [6]      He further declared that after termination of the lease term, his tenancy continued on a month-to-month basis. [7]      Applicant made mention of a dispute between himself and respondent over charges for electricity. [8]      In his founding affidavit applicant alleged that on 9 February 2023 Mr Holtzhausen of the respondent attended at the rented premises with 4 persons and after they worked on the electricity distribution board, the part of the property occupied by him was without electricity. [9]      The alleged unilateral termination of the supply of electricity to the premises served as the basis on which an interim spoliation order was granted. [10]    While applicant declared that he was the tenant under the lease mentioned in paragraph 6 above, he declared that a business Yes Hardware (Pty) Ltd run by his parents were also operating on the leased premises. He also stated that another business YE Khan Investments CC run by his father also conducted business on the premises. [11]    It is common cause that a spoliation order was granted against the respondent on 10 February 2023. Notably, this order also ordered the respondent to pay the costs of the application. The Disputes [12]    In its answering affidavit the respondent disputed that the applicant was in actual possession of the premises in question. It referred to the allegations by applicant that the business referred to in paragraph 10 above were trading from the premises. [13]    The applicant in reply alleged that he has an office at the premises and that he works from this office. He also alleged that he holds a 25% member's interest in YE Khan Investments CC. [14]    The respondent in its answering affidavit referred to the terms of the expired lease agreement and inter alia, pointed out that the agreement prohibited sub-letting without written consent of the landlord and that the premises were expressly let for the purpose of storage. [15]    Respondent denied that the termination of the electricity supply in question constituted a spoliation. In brief, respondent submitted that because it was in the process of selling the building in question, it appointed an electrician to inspect the premises with the view of providing an electrical compliance certificate. The electrician found that the electrical installations on the premises were illegal and constituted a fire hazard. This was confirmed by the electrician, Intoli Power Renovation (Pty) Ltd in a letter attached to the answering affidavit. [16]    The papers raised a number of additional disputes which are not pertinent to the spoliation and the determination of whether or not the rule nisi should be confirmed. The factual summary in this judgment will be confined to the issues that the court has to decide. ANALYSIS [17]    The main issues for determination are whether the applicant was in the undisturbed actual possession of the premises, whether an electricity supply to the premises was incidental to such possession and whether there was an unlawful deprivation of such possession by the respondent or persons acting on his behalf or instructions. [18]    It is trite law that when considering a spoliation application, a court is not enjoined to consider or determine whether the possession of the property or right/s by the applicant was lawful (See Erasmus, Superior Court Practice, Volume 2 at D7-7 and the list of cases cited there). [19]    The court will firstly deal with the question as to whether the applicant, Mr Aslam Khan enjoyed an electricity supply. It is common cause that to unlawfully deprive a party of a right and enjoyment of a supply such as water or electricity will constitute an act of spoliation. [20]    The respondent submitted that the applicant was not in actual possession of the premises and that it could not be accepted that he had the right to a supply of electricity that was an incident of his possession. [21]    In the founding affidavit the applicant alleged that he "currently occupies" the premises, that he was a tenant under a lease that expired and that the lease was continuing on a month to month basis. This was later amplified in his replying affidavit by stating that he had an office on the premises from which he worked and that he held a 25% interest in one of the legal entities that occupied part of the premises. The mere fact that there are in addition to the applicant, other persons in occupation of the premises does not exclude the applicant as a co-occupier and this is sufficient to satisfy the possession requirement. The occupancy arose from the (expired) lease. The supply of electricity was in turn incidental to the agreement of lease. [22]    The court finds that the possession requirement was satisfied. [23]    The next question is whether the applicant was unlawfully deprived of the supply of electricity and consequently, whether the rule nisi should be confirmed or discharged. [24]    The respondent admits that it employed an electrician to assess the electrical installations on the property but claims denies that it instructed the electrician to disconnect the supply. It further averred that the electrician found the electrical installations on the premises to be unlawful and presenting a fire / safety hazard. The electrician felt obliged to disconnect the supply.  A letter by the electrician confirming the defective, unlawful and  unsafe electrical installations was attached to the replying affidavit. [25]    The respondent referred to authorities such as Ngqukumba v Minister of Safety and Security and others [2014] JOL 31554 (SCA) in support of its argument that to restore the unlawful electricity supply would be unlawful. It also submitted that in granting the relief sought the court will become party to allowing a state of affairs prohibited by law and referred to the judgment in Hoisan v Town Clerk, Wynberg 1916 AD. [26]    The applicant in reply denied that the current electrical installations are unlawful or that it presents a fire hazard. Applicant filed an affidavit by an electrician in confirmation. [27]    In its answering affidavit the respondent denied that it was responsible for the supply of electricity or the disconnection thereof. It should be obvious that the supplier of the electricity is either the City of Cape Town or Eskom. [28]    Given that the electrician/s who disconnected the supply of the electricity were employed or instructed by the respondent to conduct an assessment of the installations on the premises in the presence of a representative of the respondent, the respondent was responsible for the actions of the electrician/s. [29]    It would certainly have been the obligation of the said electrician/s to report any unlawful electrical installations on the premises to the supplier instead of taking the law into his/their own hands and disconnect the supply. This is more so given the suggestions of electricity stealing. The disconnection amounted to self-help which is what spoliation orders are intended to address. [30]    There is a dispute about the lawfulness and safety of the electrical connections and installations on the premises. What is common cause is that the supply of electricity has already been restored. CONCLUSIONS AND ORDER [31]    As will appear from the analysis provided above, the court finds that the applicant satisfied the possession requirement and that the respondent could be held responsible for the termination of the electricity supply to the premises. This justified the granting of the spoliation order on 10 February 2023. [32]    Although the circumstances around the ex parte application on 10 February 2023 and the cost provisions of the rule nisi were rather inordinate, the findings made by this court obviate the need for any further elaboration thereon. [33]    It follows that the rule nisi is hereby confirmed and that the costs should follow the result and the respondent is accordingly ordered to pay the costs of the application on the scale as between party/party. R BARENDSE Acting Judge of the High Court Appearances: For Applicant Adv. L Van Zyl (Instructed by NME Nilssen) The Respondent Adv. DH Wijnbeek (Instructed by Mr. Andreas Peens) sino noindex make_database footer start