Wightman t/a JW Construction v Headfour

Last updated

Wightman t/a JW Construction v Headfour (Pty) Ltd and Another [1] [2] is an important case in South African law, heard in the Supreme Court of Appeal on February 27, 2008. Mpati DP, Cameron JA, Heher JA, Ponnan JA and Mhlantla AJA presided. Judgment was handed down on March 10, 2008. Counsel for the appellant was EJJ Spamer; SC Goddard appeared for the respondents. The appellant's attorneys were Kyriacos & Co, Cape Town, and Webbers, Bloemfontein. The respondents' Attorneys were EQM Hunter, Cape Town, and Honey Attorneys, Bloemfontein. The case was an appeal from a decision of the full bench in the Cape Provincial Division (Thring J, Blignaut J and Bozalek J) regarding spoliation.

Contents

The court considered, first, the requirements for a mandament van spolie. What was required was unlawful dispossession of property, not necessarily accompanied by violence or fraud, provided that the property was taken without the consent of the person dispoiled, and also illicitly, in a manner not countenanced by the law.

The court also dealt with the question of whether or not possession of the keys to property could be considered to amount to possession of that property. It found that to make duplicate keys available to another does not always amount to giving up physical possession of the property in question

The party raising a dispute of fact in motion proceedings, the court found, must seriously and unambiguously address that fact. This will indicate that the dispute is real, genuine or bona fide. If the disputing party necessarily possesses the knowledge and ability to show the facts in question to be untrue or inaccurate, but nonetheless fails to do so, instead resting on a bare or ambiguous denial, there is no bona fide dispute of fact.

Facts

The appellant was a building contractor who had entered into an agreement with the first respondent (represented by the second respondent) to perform certain construction work on the first respondent's property. He was placed in possession of a full set of keys to the premises upon commencement of the work and subsequently delivered duplicates of certain of the keys to the second respondent for the limited purpose of facilitating inspection of the premises by the respondent.

When a dispute arose between the parties, the respondent engaged other contractors to complete the work and, using the duplicate keys delivered to him by the appellant, provided the new contractors with access to the premises. When the appellant thereafter arrived at the premises, he was refused access, apparently on the respondent's instructions. The appellant contended that this constituted spoliation and unsuccessfully applied for restitution ante omnia, and for ejectment of the second respondent.

Judgment

On appeal, the court held as follows:

A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed. There will of course be instances where a bare denial meets the requirement because there is no other way open to the disputing party and nothing more can therefore be expected of him. But even that may not be sufficient if the fact averred lies purely within the knowledge of the averring party and no basis is laid for disputing the veracity or accuracy of the averment. When the facts averred are such that the disputing party must necessarily possess knowledge of them and be able to provide an answer (or countervailing evidence) if they be not true or accurate but, instead of doing so, rests his case on a bare or ambiguous denial the court will generally have difficulty in finding that the test is satisfied. I say I "generally" because factual averments seldom stand apart from a broader matrix of circumstances all of which needs to be borne in mind when arriving at a decision. A litigant may not necessarily recognise or understand the nuances of a bare or general denial as against a real attempt to grapple with all relevant factual allegations made by the other party. But when he signs the answering affidavit, he commits himself to its contents, inadequate as they may be, and will only in exceptional circumstances be permitted to disavow them. [3]

In the previous paragraph, it found that

an applicant who seeks final relief on motion must, in the event of conflict, accept the version set up by his opponent unless the latter's allegations are, in the opinion of the court, not such as to raise a real, genuine or bona fide dispute of fact or are so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers. [4]

Violence or fraud, the court found, was not an essential act of dispossession, provided that the act was done against the consent of the person despoiled, and illicitly, meaning in a manner which the law would not countenance. [5]

The mere fact of making duplicate keys available to another (who happened to be the owner of the premises) did not always equate to the giving up of physical possession. [6]

Accordingly, on the facts, the court decided that the appellant had not lost physical possession of the premises by delivering the duplicate keys to the respondent. He was, however, dispossessed when the respondent used the keys illicitly and against his consent to provide the new contractors with access to the premises. [7] The appeal was therefore upheld and the decision of Thring J (Blignault J concurring and Bozalek J dissenting), in Wightman t/a JW Construction v Headfour (Pty) Ltd and Another , [8] reversed.

Related Research Articles

<i>Regal (Hastings) Ltd v Gulliver</i>

Regal (Hastings) Ltd v Gulliver [1942] 1 All ER 37 is a leading case in UK company law regarding the rule against directors and officers from taking personal advantage of a corporate opportunity in violation of their duty of loyalty to the company. The Court held that a director is in breach of his duties if he takes advantage of an opportunity that the corporation would otherwise be interested in but was unable to take advantage. However the breach could have been resolved by ratification by the shareholders, which those involved neglected to do.

<i>Breskvar v Wall</i> Judgement of the High Court of Australia

Breskvar v Wall, was an Australian court case, decided in the High Court on 13 December 1971. The case was an influential decision in property law, specifically the effect of obtaining title by registration under the Torrens title system, the application of the fraud exception to the principle of indefeasibility and whether Frazer v Walker  should be followed in Australia. The High Court followed Frazer v Walker in upholding that a bona fide purchaser for value without notice of the fraud obtained an effective title even though the person they purchased from was registered by fraud against the original owner.

Government of the Republic of South Africa v Fibrespinners & Weavers (Pty) Ltd is an important case in South African contract law. It was heard in the Appellate Division by Wessels ACJ, Trollip JA, Hofmeyr JA, Miller JA and Trengove AJA on 15 February 1978, with judgment handed down on 21 March.

Civil procedure in South Africa is the formal rules and standards that courts follow in that country when adjudicating civil suits. The legal realm is divided broadly into substantive and procedural law. Substantive law is that law which defines the contents of rights and obligations between legal subjects; procedural law regulates how those rights and obligations are enforced. These rules govern how a lawsuit or case may be commenced, and what kind of service of process is required, along with the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases, the timing and manner of depositions and discovery or disclosure, the conduct of trials, the process for judgment, various available remedies, and how the courts and clerks are to function.

Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd is an important case in South African law. It was heard in the Supreme Court of Appeal on 5 November 2008, with judgment handed down on 26 November. The judges were Scott JA, Farlam JA, Brand JA, Lewis JA and Jafta JA. JH Dreyer SC appeared for the appellant, and AC Ferreira SC for the respondent.

True Motives 84 (Pty) Ltd v Mahdi and Another is an important case in South African law, heard in the Supreme Court of Appeal on 28 August 2008, with judgment handed down on 3 March 2009. PM Kennedy SC appeared for the appellant. There was no appearance for the first respondent, while AE Franklin SC appeared for the second respondent and PJ Olsen SC for the amicus curiae.

Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd is an important case in South African law: the leading case, indeed, on disputes of fact. It was heard in the Transvaal Provincial Division on April 28 and 29, 1949, with judgement on July 15. Murray AJP, Ramsbottom J and Blackwell J presided. A. Shacksonvis KC appeared for the appellant, and A. Suzman KC for the respondent. The appellant's attorneys were Schwartz & Goldblatt; the respondent's were Podlashuc, Meintjes, Liebson & Klagsbrun.

Golden Harvest (Pty) Ltd v Zen-Don CC is an important case in South African law, heard in the Orange Free State Provincial Division by Choudree AJ on March 15, 2001, with judgment handed down on August 21. AJR van Rhyn appeared for the applicant; PU Fischer appeared for the respondent.

Truter and Another v Deysel is an important case in South African law, with particular resonance in the area of civil procedure and medical malpractice. It is also frequently quoted or invoked for its definition of "cause of action." It was heard in the Supreme Court of Appeal by Harms JA, Zulman JA, Navsa JA, Mthiyane JA and Van Heerden JA on 24 February 2006; judgment was delivered on 17 March. Counsel for the appellants was JG Dickerson SC; AC Oosthuizen SC appeared for the respondent. The case was an appeal from a decision in the Cape Provincial Division by Mlonzi AJ.

Minister of Police v Rabie is an important case in the South African law of delict. It was heard in the Appellate Division on September 3, 1984, with judgment handed down on September 27, 1985. The presiding officers were Jansen JA, Joubert JA, Cillié JA, Van Heerden JA and Vivier AJA. The appellant was represented by the State Attorney, Johannesburg. The respondent's attorneys were Mather & Sim, Johannesburg, and McIntyre & Van der Post, Bloemfontein.

Minister of Safety and Security v Luiters is an important case in the South African law of delict. It was heard in the Supreme Court of Appeal (SCA) on March 7, 2006, with judgment delivered on March 17. Mpati DP, Farlam JA, Navsa JA, Cloete JA and Van Heerden JA presided. RT Williams SC appeared for the appellant and HM Raubenheimer SC for the respondent. The appellant's attorneys were the State Attorneys, Cape Town and Bloemfontein. The respondent's attorneys were Smith & De Jongh, Bellville; Milton de la Harpe, Cape Town; and Honey Attorneys, Bloemfontein. The case was an appeal from a decision in the Cape Provincial Division by Thring J. A subsequent application to appeal it further to the Constitutional Court was rejected.

Kragga Kamma Estates CC and Another v Flanagan is an important case in the South African law of contract, an appeal from a decision in the South Eastern Cape Local Division by Jansen J. It was heard in the Appellate Division on August 19, 1994, with judgement handed down on September 29. The presiding officers were EM Grosskopf JA, Nestadt JA, Kumleben JA, Howie JA and Nicholas AJA. The appellants' attorneys were Tobie Oosthuizen, Port Elizabeth, and Webbers, Bloemfontein. The respondent's attorneys were Jankelowitz, Kerbel & Schärges, Port Elizabeth, and Lovius-Block, Bloemfontein. HJ van der Linde appeared for the appellants; JRG Buchanan SC for the respondent.

Theart and Another v Minnaar NO; Senekal v Winskor 174 (Pty) Ltd is an important case in South African property law and civil procedure, as well as in the area of legal interpretation. It was heard in the Supreme Court of Appeal on November 5, 2009, with judgment handed down on December 3. Mpati P, Brand JA, Snyders JA, Malan JA and Bosielo JA presided. Counsel for the appellants was BC Wharton; CHJ Maree appeared for the respondent in case No. 483/08 and M. Verster for the respondent in case No. 007/09. These were appeals from two decisions in the High Court, Cape Town. The appellants' attorneys were RP Totos, Cape Town, and Symington & De Kok, Bloemfontein. The respondent's attorneys in case No. 483/08 were Van der Spuy & Vennote, Cape Town, and Phatshoane Henney Ing, Bloemfontein. The respondent's attorneys in case No. 007/09 were JC Van der Berg Attorneys, George, and Hill, McHardy & Herbst Ing, Bloemfontein.

Soffiantini v Mould is an important case in South African law. An appeal from a decision of Back AJ, it was heard in the Eastern Districts Local Division by Price JP, Jennett J and Wynne J on 30 July 1956. Judgment was handed down on 14 August 1956. The appellant's attorneys were Espin & Espin. The respondent's attorney was LB Green. The case concerned the relationship between landlord and tenant, and confirmed that, under the common law, a landlord is not entitled to enter leased premises without consent. The trespassing landlord can be interdicted.

Memory Institute SA CC t/a SA Memory Institute v Hansen and Others is an important case in South African law, heard in the Supreme Court of Appeal. The judges were Harms JA, Schutz JA, Cameron JA, Conradie JA and Heher JA, who heard the case on May 8, 2003, handing down judgment on May 16, 2003. PJ Heymans appeared for the appellant; MH Wessels SC for the respondents.

Administrator, Transvaal v Theletsane is an important case in South African law, heard in an Appellate Division comprising Botha JA, Smalberger JA, MT Steyn JA, FH Grosskopf JA and Nicholas AJA. The case was heard on November 5, 1990; judgment was delivered on November 30. The respondents' attorneys were SV Khampepe, Johannesburg, and EG Cooper & Sons, Bloemfontein. The appellants had the State Attorney.

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd is an important case in South African law, particularly in the area of civil procedure and trade marks.

In Sweets from Heaven (Pty) Ltd and Another v Ster Kinekor Films (Pty) Ltd and Another, an important case in the South African law of lease, Ster Kinekor was a lessee which had entered into a five-year sublease with Sweets from Heaven. The second respondent was a franchise of the first applicant and occupied the premises through first applicant with the consent of Numetro.

Chartaprops 16 (Pty) Ltd and Another v Silberman is an important case in the South African law of agency. It was heard in the Supreme Court of Appeal by Scott JA, Nugent JA, Ponnan JA, Maya JA and Leach AJA on May 14, 2008. They delivered judgment on September 25. The case was an appeal from a decision in the Witwatersrand Local Division by Boruchowitz J.

In Langley Fox Building Partnership (Pty) Ltd v De Valence, an important case in South African law, the Supreme Court of Appeal once more affirmed that a duty cast upon a defendant might be such that it is discharged only if reasonable precautions to avoid the harm are actually taken, and that the defendant who appoints another to take those steps, and fails to do so, will be liable for the failure, although it was careful to emphasise that Stratford ACJ did not purport to say that "there might be liability as an invariable rule whenever the work entails danger to the public." Goldstone AJA said that "the correct approach to the liability of an employer for the negligence of an independent contractor is to apply the fundamental rule that obliges a person to exercise that degree of care which the circumstances demand."

References

Cases

Notes

  1. ↑ 2008 (3) SA 371 (SCA).
  2. ↑ Case No. 66/2007.
  3. ↑ Para 13.
  4. ↑ Para 12.
  5. ↑ Para 27.
  6. ↑ Para 27.
  7. ↑ Para 29.
  8. ↑ 2007 (2) SA 128 (C).
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.