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IN THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA DIVISION, MIDDELBURG
In the matter between:
VUSI JOSIAH MOKOENA APPLICANT
THE STATE RESPONDENT
JUDGMENT HANDED DOWN VIA EMAIL DUE TO COVID 19. JUDGMENT DEEMED TO HAVE BEEN HANDED DOWN ON 23 JULY 2020.
[1] In this review tone is reminded never to lose sight of the interplay between private law and criminal law. The law is dynamic and students have over the years, just like the courts, sometimes struggled to keep that in mind. This matter was referred to this Court as an automatic review in terms of Section 302 of the Criminal Procedure Act[1] (“The CPA”).
[2] Mr Mokoena, the accused in the Court a quo, was arraigned with a count of malicious damage to property. He stood accused that on or about 20 February 2015 he unlawfully and with the intention to injure Mr BJ Xaba in his property, broke down a wall owned by or in the lawful possession of Mr Xaba. Mr Mokoena represented himself in the proceedings in the Court a quo. The Magistrate, as he is obliged to, and at more than one occasion explained to Mr Mokoena that he had a right to be represented, and in the event that he could not afford to appoint his own attorney, he is entitled to make use of the service of Legal-Aid SA. This despite, he elected to represent himself. I pause to mention that I have been involved in many matters where lay persons represent themselves, but Mr Mokoena’s conduct, and effective cross-examination of the complainant will remain with me. I must mention that the Magistrate must be commended for his assistance and patience during the trial which is exemplary to other judicial officers of what is expected of them in all matters, not only where unrepresented litigants appear in their courts.
[3] The Court a quo convicted Mr Mokoena on the charge, and sentenced him to a fine of R 10 000.00 or 1 (one) year imprisonment which is wholly suspended for 5 (five) years that he is not found guilty of the same crime committed during the period of suspension, and he was declared unfit to possess a firearm[2]. I pause to mention that the prosecution was withdrawn at a certain stage in order to afford the parties an opportunity to settle the dispute. The matter was not settled and the State decided to reinstate the charge against him. The terms of the so-called mediation agreement signed, and the background thereto was also a matter of debate.
[3] Mr Mokoena pleaded not guilty to the charge, and elected to make a statement disclosing his defence in terms of Section 115 of the CPA, but not before the Court a quo explained to him that he is under no obligation to provide the Court with such an explanation, or answer any questions by the Court.
“ I do have pictures as evidence your worship to show that [the] municipality your worship gave me a portion of land your worship. So the cement wall your worship they are referring to when they say they are alleging that I damaged your worship, that wall it is in my yard your worship.” [3]
[5] At this stage the Court a quo should have realised that the private law, and more importantly, the law pertaining to ownership and Inaedificatio[4] was always going to enter the fray. Mr Mokoena testified that the property he purchased used to form part of a larger portion that was subsequently sub-divided. He got the land and house as a RDP home. Mr Xaba purchased the property, which I understand, held the initial farm homestead with concrete walls surrounding it from a company known as Golden Nest International Group (Pty) Ltd (“The Seller”). From a deed of sale between Mr Xaba and the Seller it appears that the seller was represented by Mr Peng Hui , a director. The agreement was handed in by Mr Xaba during his evidence in chief as “Exhibit A”. In terms of the agreement, Mr Xaba purchased Erf 8364 Ermelo, Extension 33 (“Mr Xaba’s property and the property”). The property was 1860 square metres in extent, and was sold as it was and subject to all servitudes and conditions in the title deed. The agreement does not refer to the wall at all, but Mr Xaba’s case is that he purchased the property, as the Magistrate put it “ wall and all”.
[6] I do not intend repeating the evidence, and will only deal with the relevant evidence. Mr Xaba is renting this property to Mr Buthelezi. Buthelezi called Mr Xaba on 20 February 2015, informing him that Mr Mokoena was breaking down the wall between his property and that of Mr Xaba. In doing so, according to Buthelezi, Mr Mokoena made use of an iron instrument, but it could never be established whether he made use of such object or not. It is also irrelevant for the outcome of this matter. Mr Xaba went to Mr Mokoena’s house to discuss the matter, but it seemed that the parties could not resolve the matter. The next day, Mr Mokoena proceeded to break down the wall on his property further. Mr Xaba called the South African Police Services. They informed them that they could not assist, but the result was that Mr Mokoena was arrested for malicious damage to property, and released on bail the same day.
[7] Mr Xaba, as expected, states that the wall is his property. Of crucial importance is the fact that Mr Xaba is aware of the fact that the wall is situated on the property owned by Mr Mokoena. It is not disputed that:
[7.1] the wall is situated on land owned by Mr Mokoena;
[7.2] the parties had discussions in the past about the demolishing of the wall on Mr Mokoena’s property;
[7.4] that Mr Mokoena wanted to demolish the wall when the seller still owned the property, but was asked by the “Chinese” owners to hold on until their development was finalised. They stored building material within the property, and the walls prevented theft of their material. Mr Mokoena agreed not to demolish it until they are done with the project;
[7.5] At a stage Mr Mokoena became aware that Mr Xaba was the owner of the property, and had a discussion about the demolishing of the wall-the content of the discussion, and any agreements reached are in dispute.
[8] Mr Xaba admits that there were discussions between himself and Mr Mokoena about the demolishing of the wall. Mr Mokoena’s version is that Mr Xaba agreed to demolish the wall, and even said Mr Mokoena must proceed, and that he will assist Mr Mokoena. This is vehemently denied by Mr Xaba. He stated that he had no objection to the wall being removed, but that he and Mr Mokoena was supposed to “negotiate” before Mr Mokoena could tear down the wall, as according to him, it was his property. He could not understand why Mr Mokoena had more respect for the Chinese owners than for him.
[9] As referred to earlier, an agreement was signed between the parties in terms whereof they were supposed to settle the matter amicably. Mr Xaba wants R 10 000.00 from Mr Mokoena to allow him to demolish the wall on his own property. Mr Mokoena, not once, but many times, during cross examination of Mr Xaba, When he testified, and during his cross examination, and when he addressed the Court before judgment, stated that the wall belonged to him as it was on his land[5].
THE COURT A QUO’S FINDING AND JUDGMENT
[10] The Court a quo found that it was not in dispute that:
“ The concrete fence or wall belonging to the complainant (Mr Xaba) was broken down or damaged by the accused (Mr Mokoena”)[6].
Having found thus, and also that he did not have consent to demolish the wall, the Court a quo was left with no choice but to convict Mr Mokoena of the charge against him. The Court a quo found that:
“… you cannot simply destroy someone’s property just because it is by mistake within your property, this was supposed to be solved by the Municipality” [7]
[11] I will briefly deal with the incorrect argument by the Court a quo. The Court accepted that the property (wall) was on Mr Mokoena’s property by mistake. That is totally wrong. The evidence on record is that Mr Mokoena’s stand was previously part of a much larger property, of which Mr Xaba’s property was the homestead and yard. After the main property was sub divided, Mr Mokoena became the owner of his subdivided property with the concrete wall on it. That was the position when the property was owned by the seller, and when Mr Xaba purchased it, and became the owner. The wall was never on Mr Mokoena’s stand as a “ mistake”. There was also no such evidence led by any of the parties. How the Court a quo arrived at this finding is a mystery. The wall was built on the initial property by, I assume the original owner of the property, and when he sold the land, and after it had been sub divided, the wall, as I will explain later on in this judgment, became the property of those that purchased the individual stands.
THE LAW IN RESPECT OF INAEDIFICATIO (ACCESSION)
[12] In accordance with the Roman maxims superficies solo cedit and omne quod inaedificatur solo cedit which have been received in Roman Dutch and modern South African law, everything which is built on or attached to the soil forms part of the soil. The accessories, whether they are building materials, oil tanks, windmills, irrigation systems, a milk cooling apparatus, walls or other structures , become part of the principal thing, namely the land. The accessory loses its individuality and becomes the property of the landowner by accession[8]. If accession has taken place such things become immovable and thus fall in the ownership of the landowner; If accession has not occurred the movables remain the property of their original owner.
[13] In order to determine whether a movable which has been attached to the soil, or to another immovable, becomes part of the soil, three factors have to be considered, namely:
[13.1] the nature and purpose of the movable;
[13.2] the degree and manner of its annexation to the soil; And
[13.3] the intention of the owner of the movable with regard to the attachment of his or her movable to the soil.[9]
[14] In Concor Holdings (Pty) Ltd t/a Concor Technicrete v Potgieter [10]the court held that removal only by a feat of engineering is not necessarily required to prove that the manner of attachment was permanent. In this case paving stones were embedded in a sand base covering an area of some 570 square meters. The court decided that, although on the evidence they could without difficulty be picked up, it was clear that some effort would have been required to perform the task bearing in mind the large area and the fact that they were embedded in sand.
[15] The test as to whether the thing that is affixed to the immovable property is discussed at lengths in LAWSA[11]. For the purpose of this judgment though I am just going to deal with the requirements briefly to indicate that the wall on Mr Mokoena’s property became fixed to it, and even if I am wrong, he could never have acted unlawfully in breaking down the wall, as he was the owner thereof. In any event Mr Mokoena’s version is reasonably possibly true, and in consequence the Court a quo should have found him not guilty, and discharged him. More on that later herein.
[16] Reverting to the ownership and accession of the material to the ground, the movable (cement wall) must in its nature be capable of acceding to or being assimilated into an immovable (realty)[12]. Building materials, like cement, bricks, windows, doorframes and steel security gates welded to steel door frames are in their nature capable of being attached to buildings or the soil.
[17] The degree and manner of attachment, or the way in which the movable is attached to the soil is a factor that also plays a role. If the movable is completely incorporated into the soil or a building it becomes part of the soil or building. It is immaterial whether the attachment is by artificial means or by mere weight, for example where massive oil tanks (weighing approximately 450 tonnes each) on being placed on the soil sink into the soil with the result that they can only be moved by a feat of engineering[13]. The degree and manner of attachment are considered to be decisive either if the attached article loses its own identity and becomes an integral part of the immovable or if the attachment is so secure that separation would involve substantial injury either to the immovable property or to the accessory [14] .
[18] The intention with which the attachment is made is based mainly on American case law. The relevant intention is the intention at the time of attachment. Originally, the intention of the annexor was taken into account, but later, when it became clear that the annexor and the owner of the movable need not necessarily be the same person, the intention of the owner of the movable became paramount. The rationale for this rule is apparently that the owner of a movable should not lose ownership in a movable by the mere fact that an outsider wants to attach his or her movable permanently to an immovable[15]. In Konstanz Properties (Pty) Ltd v WM Spilhaus & Kie (WP) Bpk [16] the court pointed out that there was something to be said for taking into account the intention of the annexor rather than the owner, especially in the light of the fact that the owner might not have participated in the physical annexation of the movable to the land or even been aware of it.
[19] Mr Xaba was not involved in the attachment of the wall to the ground. The seller was also only the recipient, and possessor of the wall. In the sale agreement between the seller and Mr Xaba, the wall is not referred to at all. If the wall formed part of the property sold by the seller to Mr Xaba, it follows that Mr Mokoena was not allowed to demolish it. On the undisputed evidence it is apparent that Mr Xaba never was, nor became the owner of the wall. It was on Mr Mokoena’s land even prior to Mr Xaba’s transaction with the seller.
[20] The photographs attached to the record as Exhibits clearly shows a cement wall with columns that are fixed to the ground. The panels of the wall were removed by Mr Mokoena, according to his own evidence, and are stacked where they were removed. The columns were at the time when the photographs were taken, not removed. If these columns are removed, it will most probably become damaged, as it seems to have been concreted into the ground. A wall is also never erected by the annexor to be moved at random, from day to day. The owner or person that erects it normally does so to keep his property safe and to keep unwanted intruders out.
[21] Mr Mokoena’s undisputed evidence recorded that he had planned to demolish the wall when the seller was still the owner of the property, but that:
“ They requested me not to remove the brick wall whereas there is still material there, because they are going to (inaudible) if I remove the concrete wall your worship. I waited for them to finish their project your worship, I removed the concrete wall which it was in my property your worship. So I do not know as to why the complainant is busy fighting with me” [17] .
[22] The Prosecutor postponed the case to obtain a so-called mediation agreement entered into between the respective parties. The contents thereof was read into the record of the Court a quo, but it was never received as an Exhibit, and is therefore not available to comment on save to mention that Mr Mokoena steadfastly maintained that the agreement was never read back to him before he affixed his signature thereto. He stated, and maintained that when he had to appear in Court, he was called to sign a document and testified:
“ I was only informed that the case is withdrawn so I must sign [18] .”
[23] The “agreement” also does not take the matter any further, and Mr Mokoena did not admit that the wall belonged to the complainant. Even if the document did reflect such admission, it would not have been of any assistance in the light of Mr Mokoena’s denial of the fact that the contents were read back to him before signing it. Wisely the Court a quo also did not attached any probative value to the “agreement”.
[24] I am of the view that the wall, just as the land that Mr Mokoena owns, was owned by him at the relevant time. Definition A person commits malicious injury to property if he unlawfully and intentionally damages:
[24.1] property belonging to another ; or
[24.2] his own insured property , intending to claim the value of the property from the insurer .[19]
One cannot commit the crime in respect of one’s own property, for it stands to reason that the owner is free to do with his property what he likes. In casu the wall became the property of Mr Mokoena the moment he became the owner of the property. He did not break down the wall simply to enable him to enjoy his whole property. Mr Xaba had no interest in the wall. It used to be the fence of the property, but after the property was transferred to Mr Mokoena, the wall and all became his property to do with as he pleases. I am of the view that Mr Xaba opportunistically saw an opportunity to profit from the wall, and maliciously set the law into motion to achieve that. The Court unfortunately assisted Mr Xaba in his quest, but stopped short of awarding Mr Xaba compensation.
[25] The concept of unlawfulness embraces a negative or disapproving judgment by the legal order of the act. The law either approves or disapproves of the act. An act is therefore either lawful or unlawful. There is no third possibility: unlawfulness cannot be graded. Furthermore, only human conduct can be unlawful. “Unlawful” is an adjective, the noun of which is always a voluntary human act or omission[20]. Damaging your own property can never be seen to be unlawful. Unlawfulness is judged objectively. If the wall is Mr Mokoena’s property, and he demolishes it to create space for him to use his whole property, his act cannot be unlawful. Once it is established that the act was not unlawful, that is the end of the enquiry into criminal liability. In terms of the rules relating to the law of evidence the state (prosecution) bears the onus of proving beyond reasonable doubt that Mr Mokoena’s conduct not only corresponded to the definitional elements of the crime, but also that it was unlawful.
[26] I will also briefly touch on Mr Xaba’s lawful possession of the property vis a vis, ownership of the property. The charge of Malicious Damage to property also refers to the lawful “possession” of the res by a third party. A person may be charged, and found guilty, of malicious damage to property if the complainant is in lawful possession of the thing. For instance setting fire to your own property in order to claim the insurance money. Even if the complainant argues that he was in lawful possession of this wall (though his argument was fixated on ownership, which he could not prove with evidence of course) the undisputed evidence established that he would not have had access to the physical control of the wall without getting into the accused property. Mr Xaba was therefore not in possession of the wall, nor was he ever the owner thereof. Mr Mokoena’s evidence, to the contrary, is clearly indicative that he was both aware of the fact that he was the owner of the wall, and that he possessed it. That is apparent from his evidence. The only reason he wanted co-operation from Mr Xaba was to assist him in taking down the wall. Even if the state argued (which was not the case herein) that Mr Xaba was once in lawful possession of this wall the state failed to prove beyond reasonable doubt, that he continued to be in such possession after the accused became the owner of the land in question. If this is accepted the magistrate should have acquitted Mr Mokoena. Mr Mokoena’s version is reasonably possibly true and therefore the Court a Quo should have acquitted him.
[27] Even if the complainant was found to be the lawful possessor of the wall, the Court a quo should have acquitted Mr Mokoena on the basis that the breaking of this wall was not done with the intention to damage the property, but the court should have considered that the intention of the accused when he remove the wall was in line with the parties’ initial understanding that the wall must eventually be removed.
[28] Unfortunately the Court a quo approached the case with the attitude that Mr Mokoena must prove that what he did was in fact lawful. It made its finding in respect of the ownership of the wall without taking the law as discussed above into account. Once Mr Mokoena raised the defence that he was the owner of the wall, the Court should have been alive to the principles of accession. All the evidence needed to reach a conclusion into the ownership of the wall had been placed before it. Even if I am wrong, the evidence by Mr Mokoena to the effect that he had the consent of the owner to break down the wall is reasonably possibly true, and if so, the State failed to prove its case beyond a reasonable doubt and the Court should have given Mr Mokoena the benefit of the doubt. The wall was taken down, and from the exhibits (photographs) attached to the record, I am not in a position to establish whether the wall, apart from having been dismantled, had been damaged at all.
[29] The Court a quo’s finding that “….you cannot simply destroy someone’s property just because it is by mistake within your property…..” was incorrect, as referred to earlier. The Court a quo found:
“ This concrete wall was within the accused’s premises even before Mr Xaba bought the said property. As to why the accused did not remove or damage it at that stage only God knows. It might happen that he is looking down upon the complainant that is why he decided to damage it at that stage. Because in his own words there were white people who were owning that place before. That concrete wall was still there, he never damaged it ”[21].
[30] Mr Mokoena’s undisputed evidence, as referred to in paragraph [21] hereof was that they (the seller): “ requested me not to remove the brick wall ”. If the sellers requested him, it holds true that he was, and still is, the owner of the structure. It is common cause that there was no brick wall on the property. The Court may safely assume that the reference is to the cement wall. The Court a quo therefore erred in finding that the State had proved Mr Mokoena’s guilt beyond a reasonable doubt.
[31] I therefore make the following order:
“ 1.The conviction by the Court a quo is set aside and replaced with:
1.1 The accused is found not guilty of the charge against him and is discharged"
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
