The Durban High Court has granted the eThekwini Municipality an eviction order for DGC Golf Development to vacate the Papwa Sewgolum Golf Course in Clare Estate.
This comes after the contract between the municipality, which owns the golf course, and DGC to run and maintain the greens came to an end in January 2022.
Despite the contract ending, DGC continued to perform services for the municipality on a month-to-month basis, which was accepted by the City.
However, following a procurement process, the municipality awarded the contract to Leitch Landscapes, which led to DGC launching an application to challenge the municipality’s decision.
The municipality then wrote a letter to DGC on July 15 advising the company that a new service provider had been appointed and would commence work on August 1, 2024.
In her judgment on Thursday, acting High Court Judge Jabu Thobela-Mkhulisi said DGC was clear and direct that the company would not vacate the golf course or permit the successful tenderer to perform services until the finalisation of the application for review.
As a result, the municipality launched eviction proceedings.
According to the judgment, on August 1, before the matter could be heard in court, the municipality took control of the golf course by placing security guards to prevent the collection of fees from patrons as well as the daily maintenance and upkeep of the golf course.
Last Monday, Judge Thobela-Mkhulisi received two urgent applications for eviction and to restore possession on the basis of mandament van spolie (spoliation), which is the wrongful deprivation of another’s right to possession.
She said the municipality's argument by advocate Senzo Luthuli, in opposing the order to restore possession, rested solely on the right to payment being a contractual right, which does not apply to spoliation.
After careful consideration, Judge Thobela-Mkhulisi ordered that eThekwini Municipality and Leitch Landscapes, their employees and any party acting on their behalf are directed to immediately restore to DGC Golf Development peaceful use and possession of the Papwa Sewgolum Golf Course, without any interference by the municipality of DGC’s right to receive payment of green fees payable at the golf course.
“By preventing DGC from receiving payment of the green fees, the municipality sought to frustrate DGC’s possession of the golf course, and to this extent the municipality took the law into its own hands. I am satisfied that the municipality’c conduct on 1 August 2024 amounts to spoliation and DGC is entitled to protection against such self-help by the municipality,” she said.
She also granted the eviction order, stating that this restored possession would be effective until DGC vacates the golf course next month.
“DGC and all those who occupy the golf course through or under it are ordered to vacate the golf course by no later than 15 September 2024,” adding that the sheriff or his deputy are authorised to take all such steps as may be necessary to eject DGC and all those occupying the golf course under it if DGC fails to vacate the golf course.
Judge Thobela-Mkhulisi said DGC’s attorney, advocate Michael Collins SC, conceded that DGC has no right to remain on the golf course while DGC challenges the award of the tender to Leitch Landscapes in a judicial review.
“Until the municipality's decision is reviewed and set aside, it (DGC) has no grounds in law to remain on the golf course. In the result, the application for review is unopposed by DGC on the merits,” she said.
The municipality was ordered to pay DGC’s costs in the spoliation application, while DGC was ordered to pay the municipality’s costs in the eviction application.
The Mercury