THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

REPORTABLE
Case no:  66/2007

In the matter between
JOHN CECIL WIGHTMAN
trading as J W CONSTRUCTION

APPELLANT
and

HEADFOUR (PTY) LTD

FIRST RESPONDENT
ARCHAR HEAD

SECOND  RESPONDENT

Coram:
MPATI DP, CAMERON, HEHER, PONNAN JJA and
MHLANTLA AJA
Heard:
27 FEBRUARY 2008
Delivered: 10 MARCH 2008

Summary: Practice – application – dispute of fact – real, genuine or bona fide –
what constitutes.
Possession – spoliation – builder making duplicate keys available to owner for
limited purpose – whether possession ipso facto lost – owner using keys to place
other contractors in occupation – possession taken against consent of builder
and illicitly.

Neutral citation: This judgment may be referred to as Wightman v Headfour
(Pty) Ltd (66/2007) [2008] ZASCA 6 (10 March 2008)

____________________________________________________________________
_

HEHER JA

HEHER JA:

[1] The appellant is a building contractor. In March 2004 he entered into an
agreement with the first respondent to carry out construction work on an erf in Hout
Bay owned by the first respondent. At all material times then and thereafter the
company was represented by its sole director and shareholder, Mr Archar Head, the
second respondent.

[2] During July 2004, before completion of the contract, the parties fell out over
payment or defective workmanship, depending on which one you believe. On or
shortly before 12 July the respondent took possession of the property and put in other
contractors to complete the work.

[3] The appellant consulted an attorney who wrote two letters to the respondents’
attorney on 13 July. In the first, payment of outstanding payments was claimed and
the second relied on an agreement allegedly concluded between the attorneys to the
effect that the appellant possessed and would retain a lien over the property
notwithstanding his agreement to the continuation of the work by the contractors
whom the second respondent had employed.

[4] Early in August the first respondent issued summons against the appellant. It
claimed payment of R463 669,00 as the alleged cost of remedying his defective
performance and some R220 000 as special damages for loss of rental income,
occupational rental and moving and storage costs.

[5] The appellant thereafter became aware that the second respondent and his
family had taken occupation of the completed works. He regarded that as a breach of
the agreement which acknowledged his lien and as a spoliation. On 17 August 2004
he launched an application in the Cape High Court seeking an order for restitution
ante omnia and ejectment of the respondents and their invitees, together with a

temporary interdict to prevent the respondents from reoccupying the premises
pending final determination of a counterclaim to be instituted against the first
respondent and costs on the attorney and client scale. The appellant alleged that the
first respondent still owed him over R350 000,00 for work done under the contract.

[6] I have not attempted to do more than provide a terse summary of the case. The
facts are fully set out in the judgments in the court a quo which is reported at 2007 (2)
SA 128 (C).

[7] The application was heard by Waglay J. He dismissed it with costs in March
2005, but granted leave to appeal to the Full Bench. In September 2006 Thring J
(Blignault J concurring) dismissed the appeal with costs. Bozalek J dissented. He
would have granted the relief claimed save for the interdict against occupation of the
premises. The present appeal is with the special leave of this Court.

[8] Although the appellant, in his founding affidavit, relied on the occupation by
the second respondent and his family in August as the act of spoliation, it is apparent
that he did so because of a fundamental misconception induced by the legal advice
that he received. This was to the effect that he continued to retain possession in
August by reason of the agreement reached between the attorneys on 13 July. In fact
it is clear, as the respondents emphasised in their answering affidavit, that the
appellant had lost possession by 12 July and never thereafter regained it. The
founding affidavit contained averments covering all material events from 3 July
onward. The respondents did not seek to avoid meeting them because of alleged
irrelevance or immateriality. Despite counsel’s submissions to the contrary, the
appellant’s misdirection should not be allowed to deflect us from the real issue in
dispute: Did the respondents unlawfully despoil the appellant?

[9] Much of the argument was directed to  the meaning of the agreement reached
between the attorneys on 13 July. In the view I take of the matter it is unnecessary to

decide whether they agreed that the appellant possessed an enforcible lien (as
appellant’s counsel submitted) or merely that if the appellant possessed a lien at all he
would not be deemed to have waived it by agreeing to allow the contractors to
proceed (as was contended on behalf of the respondents). There is no dispute that the
appellant had lost (whether by voluntary abandonment or spoliation) physical control
over the property before that agreement was concluded. No agreement between the
attorneys could of itself revest such control. At best for the appellant it purported to
confirm a state of possession which did not exist. The lien referred to in their
correspondence also no longer existed and could not exist absent possession. Nor was
the effect of the agreement, even on the appellant’s interpretation, such as to restore
possession to him. If therefore the appeal were to turn on this aspect of the case it
would go the way of the respondents.

[10] That does not conclude the matter. The events which preceded the agreement
between the attorneys require careful consideration. If the proven facts establish that
the appellant was unlawfully despoiled of his possession before that agreement was
reached, then their consensus, on whatever basis, could only have deprived the
appellant of a remedy if its effect was to restore possession (which it did not) or
because the appellant thereby waived or abandoned his rights to be restored to
possession. It is not helpful to describe the agreement as a ‘substitute’ for whatever
rights had accrued to the parties before its conclusion (as the respondents’ counsel
did). Apart from the fact that it is very doubtful that such was the attorneys’ intention,
unless the legal effect was that of a waiver or abandonment there was no negation of
these rights. But the respondents did not rely on a waiver nor do the undisputed facts
support such a case. In fact, the appellant has at all material times believed, and,
apparently, been advised, that their agreement entitled him to contend for and rely
upon uninterrupted physical possession of the premises. In his eyes, accordingly, he
intended to give up no rights whatsoever.

[11] The first task is accordingly to identify the facts of the alleged spoliation on the

basis of which the legal disputes are to be decided. If one is to take the respondents’
answering affidavit at face value, the truth about the preceding events lies concealed
behind insoluble disputes. On that basis the appellant’s application was bound to fail.
Bozalek J thought that the court was justified in subjecting the apparent disputes to
closer scrutiny. When he did so he concluded that many of the disputes were not real,
genuine or bona fide. For the reasons which follow I respectfully agree with the
learned judge.

[12] Recognising that the truth almost always lies beyond mere linguistic
determination the courts have said 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: Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E-635C. See also the analysis
by Davis J in Ripoll-Dausa v Middleton NO 2005 (3) SA 141 (C) at 151A-153C with
which I respectfully agree. (I do not overlook that a reference to evidence in
circumstances discussed in the authorities may be appropriate.)

[13] 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 ‘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. There is thus a serious
duty imposed upon a legal adviser who settles an answering affidavit to ascertain and
engage with facts which his client disputes and to reflect such disputes fully and
accurately in the answering affidavit. If that does not happen it should come as no
surprise that the court takes a robust view of the matter.

[14] In paragraph 12 of his founding affidavit the applicant deposed as follows:
’12.1 Throughout the currency of the agreement First Respondent made irregular payments to
myself, thereby repeatedly breaching the terms of the agreement relating to payment. Matters came
to a head on Wednesday 7 July 2004, during a telephone conversation with Second Respondent
(representing First Respondent) in which I confronted him about the erratic payments. Second
Respondent repudiated the agreement by stating that no further payments would be made to myself.
12.2
On Friday 9 July 2004 I had another telephone conversation with Second Respondent
(representing First Respondent), in which we agreed that I would continue with my work at the
premises with effect from Monday 12 July 2004. When I arrived at the security gate of the complex
where the premises are located at 7:25 on 12 July 2004, I was refused entry by the security guard,
apparently on the orders of Second Respondent. I phoned Second Respondent, who requested a
meeting at my house in Bergvliet at 9:00 on the same day. When Second Respondent failed to keep
the appointment, I phoned him again and he refused to discuss the matter with me, stating that he
was going to see his attorney. I thereupon contacted my attorney, Mr Fotis Kyriacos of F Kyriacos
& Company in Kenilworth, for advice.’

[15] The second respondent dealt with these allegations as follows:
‘9.1
As is apparent from the particulars of claim, in consequence of Applicant’s breaches of the
agreement, on or about 3 July 2004, I on behalf of First Respondent and as I was entitled to do, I
duly cancelled the agreement, alternatively on 3 July 2004 Applicant unlawfully repudiated his
obligations to First Respondent arising from the agreement by refusing to complete same and

abandoning the project site. Insofar as was necessary, I accepted on behalf of First Respondent
Applicant’s repudiation as aforesaid and duly cancelled the agreement in consequence whereof First
Respondent was obliged to employ alternative contractors to remedy Applicant’s defective
performance and to complete the project in consequence whereof Applicant is indebted to First
Respondent in the capital sum of R682 276.21.
9.2
Save for the aforegoing, this paragraph is denied..

[16] The comparison between the two approaches is striking. Whereas the appellant
sets out chapter and verse the second respondent deals in generalisations. Each
material averment should have been met and answered appropriately not enveloped in
a fog which hides or distorts the reality. Importantly, in so far as the second
respondent claims that the appellant abandoned the project site, there is an ambiguity
as to whether this occurred on 3 July or subsequently. In paragraph 14.2 of the
answering affidavit the second respondent deposed ‘that applicant voluntarily gave up
his lien over the property on or about 12 July 2004’. In paragraph 15.1.1 he said ‘As a
matter of fact Applicant has not been in possession of the premises since 12 July
2004’. The particulars of the alleged cancellation are unjustifiably scanty, a matter of
greater concern when one refers to a letter written by his attorney, Mr Hunter, on 13
July in which Hunter states that, in accordance with his instructions, ‘the said contract
between our clients herewith being formally cancelled’. The  attorney does not refer
to any earlier cancellation ‘informal’ or otherwise.

[17] In paragraph 28 of the founding affidavit the appellant laid the basis of his
alleged possession of the premises. He deposed:
’28.
I have been in undisturbed possession of the premises since I started my work in terms of
the agreement on 3 March 2004. I state this for the following reasons:
28.1
Both dwellings on the premises were unoccupied, and in fact uninhabitable, when I
started my work and remained so until occupation was taken by Second Respondent
and other persons during the long weekend of 6 to 9 August 2004;
28.2
I am in possession of a full set of keys to the dwellings on the premises, which keys
I received on 3 March 2004 and used in the course of my work on the premises in
order to lock the dwellings after a day’s work and to unlock it at the beginning of the

next;
28.3
Although I delivered duplicates of some of the keys to Second Respondent on 9 July
2004, I retained the main set of keys in my possession and refused to hand it to First
or Second Respondent at all times when requested to do so;
28.4
The duplicates were delivered purely to allow Second Respondent to inspect the
premises, as was confirmed by Mr Kyriacos in his letters dated 13 July 2004 and 6
August 2004(Annexures “JCW6” and “JCW11” respectively). At no time did I
intend to give up my possession of the premises when I did so and in fact, I would
most certainly not have handed over the duplicates if I had any suspicion that it
would be used to gain entry to the premises for its occupation;
28.5
When I left the premises after I stopped work on 7 July 2004 following the
repudiation of the agreement, I posted a guard onsite with instructions not only to
protect the site, but also to prevent any occupation of the premises and to notify me
immediately in the event of any attempt being made to gain such occupation. I
removed the guard on 9 July 2004, the same day that I agreed with Second
Respondent that I would resume work on 12 July 2004;
28.6
On 12 July 2004, after my last conversation with Second Respondent, I attended at the
premises in order to affix notices on the dwelling confirming the existence of my builder’s
lien and my intention to exercise it. I attach hereto a copy of the notices that I intended to
affix as Annexure “JCW15”, as well as a copy of a letter by Mr Kyriacos that I used to gain
entry to the premises, as Annexure “JCW16”. When I arrived at the premises, Second
Respondent was there and a verbal confrontation between us ensued. I was prevented from
affixing the notices as I intended and after discussions between our respective attorneys, it
was agreed (as is evident from Mr Kyriacos’ letter dated 13 July 2004 – Annexure
“JCW6”) that the notices would not be affixed and that my omission to do so would not
constitute a waiver of my right to exercise my builder’s lien. Had I suspected that First
Respondent did not intend to honour the agreement, I would have insisted that the notices
were affixed and remained in place;
28.7
I kept my building tools on the premises at all relevant times until I collected it on 13 July
2004, after the agreement relating to the building lien was reached between Mr Hunter and
Mr Kyriacos.
28.8
Although I allowed certain subcontractors access to the premises in order to allow them to
finish their work, I never intended to give up my control over, and resultant possession of,
the premises. It is so that I was not physically present at all times after the agreement was
reached with Mr Hunter on 12 July 2004, but apart from the fact that such continuous

physical presence was impractical, I had reason to believe that the agreement would
sufficiently protect my rights in terms of my lien and that my intention to retain possession
of the premises was sufficiently manifested to Respondents (and any third parties) by my
retention of the main set of keys to the dwellings and the terms of the agreement itself. I
reiterate that I would have done everything necessary to retain my possession (including
prevention of access to the premises by subcontractors and changing the locks to the
dwellings) if I had the slightest suspicion that Respondents intended disregarding the terms
of the agreement.’
In paragraph 29 the appellant turned from allegations of fact to brief submissions
based on the preceding paragraph.

[18] The second respondent addressed paragraphs 28 and 29 in paragraph 15 of the
answering affidavit. He was long in submission but exceedingly short on fact:
‘15.1 Ad paragraphs 28 and 29 thereof:

15.1
It is apparent from these paragraphs that:
15.1.1 As a matter of fact Applicant has not been in possession of the premises
since 12 July 2004. From 12 July 2004 my family and I are in physical
control of the premises and certain other building contractors have had
access to the premises.
15.1.2 Since 12 July 2004 Applicant, on his own version, has not been in
possession of the premises.
15.1.3 Both Applicant and his legal representatives are under an incorrect and
legally flawed impression with regard to Applicant’s alleged lien which, as I
have been advised and verily believe, does not constitute a builder’s lien in
the terms alleged by Applicant or at all.
15.2
Save for the aforegoing, the further allegations contained in these paragraphs are
denied.’

[19] The second respondent’s general denial leaves important matters unanswered.
The failure to deal issuably with the factual averments is unjustifiable on any rational
basis. The condition of the dwellings, the appellant’s means of access and exercising
control over the works are all matters which would either have been discussed
between the parties or become apparent to the second respondent during the execution

of the contract. His bare denial of these aspects is seriously unconvincing. As to the
allegations in paragraphs 28.3 and 28.4 of the founding affidavit, there is no dispute
that the respondents did gain access to the premises on 12 July (if not during the
weekend immediately preceding that day). The second respondent, within whose
knowledge the truth lies, fails to explain how and in what circumstances that took
place if not by means of duplicate keys provided by the appellant for the limited
purpose of inspecting the premises. Reference to the correspondence between the
attorneys further emphasises the wholly unsatisfactory nature of the denial of the
allegations. On 13 July Kyriacos wrote to Hunter recording inter alia that the
appellant had called at the property on the previous day for the purpose of affixing
notices to the dwelling stating that he intended exercising his builder’s lien and found
the premises occupied by other contractors. Kyriacos informed Hunter that the
appellant had ‘given certain of the keys to the dwelling to [the second respondent] for
inspection purposes only’. When Hunter replied on 16 July, although he made it clear
that he did so on the instructions of his client, he did not place any of the factual
allegations in dispute. When Kyriacos referred again to the handing over of the keys
in a letter of 6 August, Hunter replied, in a letter dated 16 August:
‘The fact that your client handed over various keys and allowed certain subcontractors to continue
working, is unfortunately of your client’s own doing and must be interpreted appropriately, should
this be necessary, in the appropriate forum and at the appropriate time.’
From the totality of the reaction from the respondent’s side to the matter of the keys,
the inescapable inference is that the ‘dispute’ inherent in the general denial was
without substance.

[20] As to the allegations in paragraphs 28.5 and 28.6 of the founding affidavit, the
respondents set up no factual basis for denying that the appellant posted a guard on
the premises from 7 to 9 July (for example, that the second respondent had gone to
the premises and found no such person), nor is there any reason offered for placing in
issue the appellant’s statement that he attended at the premises on 12 July with the
intention of putting up notices – something not denied in the correspondence – and
was prevented from doing so: that was after all why he consulted his attorney. The

general denial also ostensibly negates those averments in paragraph 28.6 relating to
the agreement between the attorneys. But that is a matter amply borne out by the
correspondence which it is inconceivable that the second respondent genuinely
intended to place in dispute.

[21] As to the averment in paragraph 28.7 relating to the building tools the second
respondent’s general denial is unsubstantiated by any fact which suggests a genuine
basis for the denial.

[22] It seems clear that the respondents adopted or were advised to adopt an attitude
to paragraphs 15 and 28 of the founding affidavit (which is manifest throughout their
answering affidavit) of placing an obstacle in the path of the appellant at every step of
the way irrespective of whether there were valid reasons for doing so. Whatever the
tactical value of that approach, the effect was to water the force of the general denial
down to a state of insipidity into which reality, bona fides and the genuineness of the
denial all disappear. In the circumstances there is no good reason to regard as untrue
the appellant’s averment that upon his arrival at the premises on the morning of 12
July he was refused entry by the security guard, apparently on the orders of the
second respondent.

[23] The conclusion is thus that the court a quo should have approached the
application upon the foundation that the respondents had failed to raise real, genuine
and bona fide disputes of fact in relation to the events from 3 to 12 July and that the
case had to be decided upon the assumption that the appellant’s account of these
events was substantially true and correct.

[24] In order to succeed in the application the appellant had to establish that he was
in peaceful and undisturbed possession of the property and that he was unlawfully
deprived of that possession.

[25] To summarise, the evidence which is either undisputed or not the subject of a
real, genuine or bona fide challenge is the following:
1.
The appellant held the original set of keys to the premises until at least 13 July.
2.
He kept his tools of trade on the premises until that date.
3.
He placed a guard on the premises to prevent entry by other persons from 7 to 9
July.
4.
The appellant and the second respondent reached an understanding on 9 July
which satisfied the appellant he would continue in possession of the premises with the
agreement of the second respondent.
5.
The appellant handed a duplicate set of keys to the second respondent to enable
him to inspect the premises.
6.
He removed the guard on the strength of his consensus with the second
respondent.
7.
On his arrival on Monday 12 July he found contractors working on the
premises who had not been granted access by him.
8.
He was refused access to the complex in which the premises is situated by a
security guard who apparently acted on the instructions of the second respondent.

[26] The law relating to the rights of a builder who has not completed a building
which he is employed to erect is stated in Scholtz v Faifer 1910 TPD 243 at 247-8.
The appellant had carried the work so far by 9 July that possession of the keys was
equivalent to possession of the building and a temporary absence would not be taken
as abandonment.

[27] Counsel for the respondents contended that the appellant lost possession of the
premises ipso facto by delivery of the duplicate keys to the second respondent on 9
July. I disagree. The fundamentals of spoliation are well-established. Violence or
fraud is not an essential element of dispossession provided the act is done against the
consent of the person despoiled and illicitly: Nino Bonino v De Lange 1906 TS 120 at
122. By ‘illicitly’ I understand ‘in a manner which the law will not countenance’: cf R

v M 1949 (4) 975 (N) at 977. For this reason the mere fact of making duplicate keys
available to another (who happens to be the owner of the premises) does not always
equate to the giving up of physical possession. Both the giving and receiving must be
considered in context to answer the question. To the extent that Gardiner JP may have
found otherwise in Shaw v Hendry 1927 CPD 358 at 359 I think he was wrong.

[28] The appellant retained the main set and delivered the duplicates for a limited
purpose which was not broad enough to justify the second respondent in taking a
more extensive physical control nor did it warrant a belief on his part that the
appellant intended to abandon any of the control which he had hitherto exercised
exclusively. The appellant only delivered the duplicates because he had come to an
accord with the second respondent. The second appellant ostensibly received them on
the same basis.

[29] Physical possession of the premises was only lost when the second respondent
used the duplicate set to obtain entry and, in doing so, manifested a state of mind to
possess the premises in despite of the terms of the understanding. That probably did
not occur until the morning of 12 July when the second respondent gave access to his
own contractors and caused entry to be refused to the appellant. There is no doubt that
his true intention was deceitfully withheld from the appellant (whether at the initial
receipt of the keys or later) in order to gain control of the premises and that he took
occupation without the appellant’s knowledge. This conduct was not such as the law
will countenance.

[30] In these circumstances the spoliation was complete when the appellant arrived
at the premises on 12 July. That he was refused entry merely confirmed the
accomplished fact. Since, as I earlier pointed out, possession was never thereafter
restored to him, but, on the contrary, the respondents merely strengthened their
unlawfully obtained grip on the property by the occupation taken by the second
respondent’s family, it becomes clear, in my view, that the appellant should have

succeeded in his application for a spoliation order at first instance. Counsel on
appeal did not seek to persuade us that the interdict relief was wrongly refused and
nothing more need be said in that regard.

[31] The appellant’s object, in bringing the application, was to re-establish the
builder’s lien which his possession of the premises secured to him before the
spoliation. As the holder of a lien the appellant’s right of possession is not absolute;
the owner can recover possession by putting up satisfactory security. See, for
example, Avfin Industrial Finance (Pty) Ltd v Interjet Maintenance (Pty) Ltd 1997 (1)
SA 807 (T) at 814D-J. But, by the time this judgment is delivered, the second
respondent and his family will, one assumes,  have enjoyed occupation for more than
three and a half years. Rather than expose them to the unnecessary disruption of an
eviction, the second respondent should be offered the opportunity to provide such
security before the eviction order takes effect.

[32] In the result:
1.
The appeal is upheld.
2.
The order  made by the court a quo is set aside and replaced by an order in the
following terms:

‘1.
The appeal is upheld with costs.

2.
The order of the court a quo is set aside and replaced by an order in the
following terms:
“2.1 Failing provision of security to the satisfaction of the appellant or,
in the event of dispute, the Registrar of the Cape High Court for
the amount of the applicant’s counterclaim in case no 6365/2004
(CPD) within one week of the making of this order, the
respondents are forthwith ordered to restore possession of the
buildings on Erf 8871, Hout Bay situate at 20 Eagle Avenue,
Kenrock Estate, Valley Road, Hout Bay, Western Cape (“the
premises”) to the applicant.

2.2
The Sheriff or his deputy is authorised and directed to eject the
second respondent and any person occupying the premises
through him from the premises, in the event of possession not
being so restored.
2.3
The respondents are ordered to pay the costs of the application
jointly and severally the one paying the other to be absolved.” ’
3.
The respondents are ordered to pay the costs of the appeal jointly and
severally, the one paying the other to be absolved.

__________________
J A   HEHER

JUDGE OF APPEAL

MPATI DP

)Concur
CAMERON JA
)
PONNAN JA

)
MHLANTLA AJA
)