HIGH COURT RULING CONFIRMS ILLEGAL EVICTION BY KEITH BROAD & WOUTER DE SWARDT AT 16 LEIRMANS ROAD

IN THE HIGH COURT OF SOUTH AFRICA 

(WESTERN CAPE DIVISION, CAPE TOWN) 

Case number: 12525/2022. In the matter between: OLWETHU SOKANYILE, First Applicant.  SILVESTER SIWEYA, Second Applicant.  DARREN RUSSEL Third Applicant 

and 

KEITH BROAD, First Respondent 

4 AUGUST 2022. JUDGE VAN ZYL AJ: 

 

Introduction 

 

1. On 4 August 2022 on the urgent roll, I granted the applicants’ application for the restoration of possession to them of the immovable property situated at 18 Leirmans Road, Llandudno (“the property”).  The first respondent is the registered owner of the property.  The second respondent is a group of individuals who are currently staying at the property so as to prevent the applicants from regaining access thereto. 

 

4. The application was brought in reliance upon the mandament van spolie and, for the further order, upon the requirements for the grant of interim interdictory relief.  This means that the applicants had to prove that they had been in peaceful and undisturbed possession of the property and that they were deprived of possession without their consent.  They also had to prove the four requirements for the grant of an interim interdict, namely that the right sought to be protected is prima facie established, that there is a well-grounded apprehension of irreparable harm to the applicants if the relief is not granted and it ultimately succeeds in establishing its right, that the balance of convenience favours the applicants, and that the applicants have no other satisfactory remedy (Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton and another 1973 (3) SA 685 (A) at 691C-G). 

 

5. The first respondent relied on three defences in opposition to the application, namely (1) that the applicants were not in possession of the property as contemplated by the mandament, (2) that restoration of the property would be impossible due to illegality, and (3) that no case is made out for the grant of the interim interdict. 

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The first respondent’s conduct 

 

7. It is common cause between the parties that the first respondent has prevented the applicants from occupying the property since 24 July 2022.  The applicants explained in their founding affidavit how the deprivation of possession came to be. 

 

8. On 22 July 2022 the first applicant was called by short-term accommodation guests at the property. They stated that there were intruders at the property, who were demanding that they leave.  On the first applicant’s arrival at the property, he encountered about five men, one of whom stated that "I am here on behalf of Mr Broad. I am a private investigating officer and we are here to remove you from the property”. The first applicant responded by asking what the grounds for the removal were, to which the man responded "on the grounds that you are occupying the property illegally". 

 

9. The men proceeded to go through the property, opening drawers and cupboards, telling the occupants to leave. Their demeanour was threatening and aggressive. The applicants subsequently learned that the man in charge of the group was Mr Wouter de Swart of Fox Forensics. The applicants did not know the identity of the other men who were present and they refused to provide them with information regarding their identities. 

 

10. The men threatened to assault the occupants and the first applicant called the private security firm with whom the third applicant is contracted, namely PPA Security.  After PPA’s arrival the other men left, but indicated that they would return on Sunday, 24 July 2022. The first applicant called the Hout Bay charge office of the South African Police Service (“SAPS”) four times 

 

11. On the morning of 24 July 2022 the first applicant was making breakfast in the kitchen.  He heard a loud banging on the front door. Looking through the windows, he noticed a large number of men walking around the house, attempting to gain access.  The second respondent was present, as well as another assistant. 

 

12. One of the men was Mr de Swart, who confirmed that he was there on behalf of the first respondent [Keith Broad]. The unknown men were attempting to enter the house with a set of keys. The first applicant refused to let them enter, as he feared for his safety and the safety of the other occupants of the house. He was scared that the men would attempt an unlawful eviction.  He accordingly called the Hout Bay SAPS office a number of times, and the officer he spoke to eventually said that officers would attend the scene.  Some time thereafter, SAPS members came to the property but they did not remain there for long. While the officers were there, the first applicant mentioned that the applicants were lawful tenants and that the intruders were there to take over the house. He showed the officers the lease agreement. The latter said that they were departing to fetch a detective, and left.  They were disinterested in the matter, and did not return. 

 

13. The first applicant called PPA Security, but was told that they were under clear instructions from the first respondent not to become involved in the "removal of the illegal tenants" – this despite the fact that the applicants themselves pay PPA’s accounts. 

 

14. At about midday the first applicant received a call from PPA, requesting that the first applicant open the property and come outside to discuss the matter. While under the illusion that PPA would protect the occupants, the first applicant opened the garage door.  The men outside immediately stormed the door and forced their way inside. One of them grabbed the first applicant by the jersey and threw him against the floor.  

 

Another man later pushed him against the wall. There were about eight burly men present.  

 

The first applicant was told that he had to leave the property or be killed. The men kicked the first applicant’s dog and threatened to kill the dog should the first applicant return to the property.   

 

The second applicant also sustained abrasions on his neck as a result of assaults by the men, and the occupants were forcibly removed. 

 

15. The men have since changed the locks at the property and are currently residing there.  The applicants’ personal possessions are still in the property, including furniture belonging to the third applicant worth a substantial amount. 

 

16. These events are not seriously disputed by the first respondent. In fact, the first respondent admits that he had engaged Fox Forensics to remove the applicants from the property.  His evidence is telling:   

 

“I admit that Mr De Swart and/or security staff in the employ of Fox Forensics gained access to the property on 24 July 2022 with the assistance of PPA Security. I was informed by Mr De Swart that he attended on the property several times during the preceding week and that, on the occasions that he had been to the property, there was nobody present or occupying it. I was further informed by Mr De Swart that, apart from a few items of clothing that apparently belonged to Mr Sewiya, there was no trace of the applicants' belongings or any evidence that they reside at the property on a permanent basis.  

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Mr De Swart has placed private security personnel at the property to safeguard it. This was done because Mr De Swart was able to establish that Mr Russel was in the process of concluding a sublease in respect of the property in terms of which the property would be occupied by foreign nationals for an extended period of time. I was not informed about this by Mr Russel and I have no insight into what the terms of such sublease would entail. Mr Russel has unlawfully retained the property for a period in excess of 6 months since the lease was cancelled. I fear that if the sublease is concluded, I will continue to be excluded from my property indefinitely without any recourse of control as to who us being placed there or preventing further damage to it. 

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17. What is clear from this excerpt (and from a reading of the answering affidavit as a whole) is that the first respondent attempts to justify his (and his agents’) actions on considerations entirely irrelevant for the purposes of the mandament.  

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18. In addition, he recounts hearsay evidence in an attempt to downplay the applicants’ averments of possession of the property (I deal with the issue of possession in more detail further below).  The first respondent was not present when the deprivation occurred.  No confirmatory affidavit from any of the Fox or PPA employees involved in the matter was produced. 

 

19. There is no doubt that the driving force behind the forcible removal of the applicants from the property is the first respondent’s dissatisfaction with the delay in finalising his eviction application.  He bemoans the fact that the third applicant is not currently paying rental and that he (the first respondent) thus has an increased financial burden in respect of the property.  He states that, because the eviction application has been postponed to November 2022, “in the interim, I have been left without recourse against the third applicant (which (sic) he is clearly profiting from my property by conducting a short-term rental business)”.  These are not issues that are relevant for the purposes of these proceedings.  The first respondent has no doubt already placed all of this evidence on record in the pending eviction application. 

 

20. He proceeds to state that it “is against this background that I engaged the services of Mr Wouter de Swart of Fox Forensics Private Investigators and Security Consultants to assist me in this matter”.  This is ominous. The first respondent clearly contracted with Fox Forensics to get the applicants out of the property prior to the finalisation of the eviction application.  He is attempting to render the eviction proceedings nugatory. This is self-help in its purest form. 

 

21. In my view this conduct, and the reasoning that underpins it, also supports the applicants’ case for the grant of interim interdictory relief, in particular in relation to the reasonable apprehension of irreparable harm if the interdict is not granted.  The first respondent’s previous attempts at forcing the applicants from the property, resulting in an interim protection order obtained by the third applicant as a result and the first respondents’ actions in breach thereof, strengthen the applicants’ case in this respect, even though the first respondent brushes the applicants’ recounting of those incidents off as irrelevant for the purposes of this application. 

 

The first defence:  the applicants were not in possession of the property  

 

31. In the circumstances, the mandament was at the first and second applicants’ disposal and the first respondent was not at liberty to remove them from the property without a court order authorising him to do so.  I am satisfied that the applicants have established their possession of the property on a balance of probabilities. 

 

Is restoration to the third applicant impossible due to illegality? 

 

32. The first respondent argued that, should I return possession of the property to the applicants – in particular to the third applicant – I would compel him (the first respondent) to act illegally.  This is because the third applicant is a foreign national and citizen of the United Kingdom of Great Britain and Northern Ireland. The third applicant entered the Republic of South Africa on a visitor's visa that was valid from 8 November 2021 until 31 December 2021. The visa was issued for the purposes of conducting a holiday in the Republic of South Africa. The first respondent contends that the third applicant not only overstayed his visitor's visa, but he has also contravened the conditions attached thereto by conducting a short-term rental business while he is here. 

 

33. As a result, the first respondent submits that the third applicant is in the country illegally. In terms of section 42 of the Immigration Act 13 of 2002 ("the Immigration Act"), no person shall aid, abet, assist, enable or in any manner help an illegal foreigner or assist a foreigner in respect of any matter, conduct or transaction which violates such foreigner's status, when applicable, including but not limited to, assisting, enabling or in any manner helping him to conduct any business or carry on any profession or occupation, harbouring him, which includes providing accommodation or letting or selling or in any manner making available any immovable property in the Republic to him.  Doing so constitutes an offence. 

 

34. The first respondent thus argues that it is impossible to return the property to the third applicant because such restoration would oblige the first respondent to act in contravention of the Immigration Act.  The first respondent was not aware of the conditions of the third applicant’s visa or the expiry date thereof at the time that the lease agreement was concluded. 

 

36. Should restoration of the property to the third applicant be refused because of his alleged status?  In Ngqukumba v Minister of Safety and Security 2014 (5) SA 112 (CC) the Constitutional Court stated (at para [14]): 

 

“[14] The obvious conclusion is that the mandament van spolie is available even against the police where they have seized goods unlawfully. The central question is: are ss 68(6)(b) and 89(1) of the Traffic Act to be read in a manner that alters this position? Do they stand in the way of restoration of possession of the vehicle in terms of a spoliation order in this matter? I think not.” 

 

40. Given these factual circumstances, and third applicant’s explanation in relation to his visa coupled with the fact that there is already a pending eviction application due to be heard in November 2022, I also do not deem it necessary to investigate this issue in detail and reconsider the line of authorities referred to by the Supreme Court of Appeal.  I am of the view that the third applicant has established that he had the required possession and control of the property, and that he was despoiled.  I am also of the view that possession should be restored to him pending the finalisation of the eviction application. 

 

41. There is in any event no evidence to the effect that the first or second applicant is in the country in contravention of the Immigration Act.  There is therefore no basis upon which to refuse the return of possession of the property to them.  As they reside at the property it is, moreover, unlawful to evict them without an order obtained under the provisions of PIE.  The first respondent has not launched any proceedings under PIE in respect of these applicants. 

 

The interim interdict 

 

42. In all of the circumstances of the matter, I am of the view that the applicants have satisfied the requirements for an interim interdict pending the determination of the eviction application. 

 

44. The papers illustrate that the applicants have a prima facie right to remain in the property pending the determination of the eviction application, especially in light of the provisions of PIE that would possibly also have to be extended to the third applicant. 

 

45. I have already remarked on the reasonable apprehension of harm.  The first respondent’s conduct (confirmed by letters from the applicants’ attorney) reeks of a pattern of attempts to circumvent the hearing of the eviction application that may very well recur in the coming months prior to the hearing of that application. 

 

46. The balance of convenience favours the applicants, in particular the first and second applicants, who have nowhere else to live.  On the papers before me the third applicant is paying the rental agreed to under the lease agreement on a quarterly basis, and as at March 2022 at least he was not in arrears.  

 

47. I do not regard possible future actions for damages as a satisfactory alternative remedy, and the conduct of SAPS in this matter has illustrated that invoking their assistance is also not a satisfactory remedy. 

 

48. In the exercise of my discretion I regard this as a case where interim interdictory relief should be granted so as to maintain the status quo in favour of the applicants pending the finalisation of the eviction application. 

 

Conclusion 

 

49. Following the hearing of oral argument, I agreed with the applicants’ submission that this was a classic case of spoliation.  I also agreed that the applicants have satisfied the requirements for the grant of an interim interdict.  I accordingly granted the order as sought in terms of a draft provided on the day.