The eThekwini Municipality is embroiled in a legal battle over who should manage the Papwa Sewgolum golf course in Clare Estate, Durban.
DGC Golf Development, which has been managing the golf course since 2022, when their contract with the municipality ended, have approached the Durban High court for relief and to prevent the City from appointing a new contractor.
The company on Monday told Durban High court Acting Judge Jabu Thobela-Mkhulisi that they had been making monthly payments to the City despite the municipality having started an eviction process.
The municipality said that it had signed over the running of the golf course to a new contractor. However, DGC maintains that since the contract with the City ended in 2022, it has remained on the property, handling daily business operations while the City, during this period, was receiving monetary compensation during this period. Matters came to a head last week when the City placed security guards at the golf course, prompting DGC to approach the court.
Judge Thobela-Mkhulisi told the court that the matter would be split into two applications, the eviction and the Mandament van spolie (spoliation), which is the wrongful deprivation of another’s right to possession.
Advocate Michael Collins SC, representing DGC, told the court that the right to possession in spoliation exists through actual possession, regardless of whether it is legal possession.
“In so far as spoliation is concerned in this matter I respectfully submit that the facts are clear and the applicant in spoliation is entitled to receive the relief that it seeks,” he said, adding that full use of occupation should be restored to the applicant without any interruption of any services.
Judge Thobela-Mkhulisi questioned whether the case was instead a matter of contractual rights rather than spoliation.
Collins said he was not trying to enforce a non-existing contract but rather wanted the municipality to restore what it had allowed to transpire for the last two and a half years.
Judge Thobela-Mkhulisi noted that had the events of August 1 not taken place, where the City went to inspect the golf course and posted security guards to ensure that operations were not continuing, then the spoliation application would not have been made.
She said the allegation made against the City is that it took control of the property on August 1.
She asked advocate Senzo Luthuli, who represents the municipality, why the City went to the golf course on August 1 when there was an ongoing eviction application. Luthuli told the court that the municipality went to inspect the golf course and did not place security at the property to keep DGC out.
“They took control by installing security to prevent the applicant from collecting fees,” he said.
He said the municipality had stopped the applicant from providing services to the City on August 1, which is a contractual issue.
“The municipality went to the golf course to inspect it because it had already sent a letter to the applicant telling them not to perform any services on the golf course ... The second respondent (the new contractor) was present to inspect the golf course for playability, DGC was not removed, nothing was removed, nothing was locked. They were not stopped from accessing the golf course, what was stopped is DGC providing services to the municipality,” said Luthuli.
Luthuli said DGC is asking the court to protect DGC’s opportunity to provide services while there is a second respondent who has been appointed in terms of the valid contract.
“The question is whether that can be protected by the Mandament van spolie and we say not,” he said in opposition to the application.
“DGC’s complaint is that it has been deprived of the opportunity to provide services to the municipality and that is the collection of fees and in undertaking its obligations for the daily maintenance and upkeep of the golf course. Is that a matter that enjoys protection under Mandament van spolie?” he asked the court.
He argued that preventing DGC from collecting monies does not apply to spoliation. In response, Collins said having gone through the papers, he is left with the impression that there is interference with access to the golf course.
Collins said the municipality’s definition of “taking control” of the golf course was problematic for DGC.
With regard to the eviction application, Collins told the court that if it is going to boil down to merits alone, then he did not have any submissions to make that could establish a lawful right (against eviction) at this stage.
“If it is the case of merits and what right does DGC have to be there, then I can’t think of one,” he said.
Judge Thobela-Mkhulisi said as a result, there was no need to hear the municipality’s submission on the eviction application.
Judgment was reserved.
The Mercury