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IN THE HIGH COURT OF SOUTH AFRICA,

MPUMALANGA DIVISION, MIDDELBURG

(LOCAL SEAT)

CASE NO: R 03/19

In the matter between:

VUSI JOSIAH MOKOENA APPLICANT

AND

THE STATE RESPONDENT

______________________________________________________________________

REVIEW JUDGMENT

______________________________________________________________________

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED: YES

………………………………. 23 JULY 2020

SIGNATURE DATE

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JUDGMENT HANDED DOWN VIA EMAIL DUE TO COVID 19. JUDGMENT

DEEMED TO HAVE BEEN HANDED DOWN ON 23 JULY 2020.

BRAUCKMANN AJ

INTRODUCTION

[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 Act1 (“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

1 Act 55 of 1977.

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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 firearm2. 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.

2 In terms of Section 103 (2) of Act 60 of 2000.

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The terms of the so-called mediation agreement signed, and the

background thereto was also a matter of debate.

BACKGROUND

[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.

[4] He stated:

“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

3 Transcribed record, page 3025 and page 26 lines 1 to 5.

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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

4 On aedificatio, see in general Joubert 1956 THRHR 235, 1961 Annual Survey 231; Goldberg 1961 SALJ 366; Schoeman 1978 THRHR 449; Lewis 1979 SALJ 94; Carey Miller 1984 SALJ 205; Sonnekus 1984 TSAR 72; Breitenbach 1985 THRHR 462; Kleyn and Boraine Property 206214;Van Zyl Accessio en die Onderskeid tussen By en Hulpsake.

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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

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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

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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 land5.

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

5 See Page 115 of the record, lines 11 to 15. Mr Mokoena:”Your worship after the Municipal allocated the house to me …..they told me that I can use that house everything on that house ……I can use it and then those one I do not need ….I can remove it. I did so.” 6 Page 123 of record, line 3 and 4. 7 Page 125 of the record, lines 18 to 20.

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[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,

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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

8 See LAWSA, Things, paragraph 184. 9 These tests were first enunciated in Olivier v Haarhof & Co 1906 TS 497 500. They were later accepted by the then Appellate Division and several provincial divisions: Victoria Falls Power Co Ltd v Colonial Treasurer 1909 TS 140 145; Deputy Sheriff of Pretoria v Heymann 1909 TS 280 284; Macdonald Ltd v Radin & the Potchefstroom Dairies & Industries Co Ltd 1915 AD 454 466; Newcastle Collieries Co Ltd v Borough of Newcastle 1916 AD 561 564; Konstanz Properties (Pty) Ltd v Wm Spilhaus & Kie (WP) Bpk 1996 2 All SA 215 (A) ; 1996 3 SA 273 (A) ; Chevron SA (Pty) Ltd v Awaiz at 110 Drakensburg CC 2008 1 All SA 557 (T) pars 4950 (discussed by Knobel 2010 THRHR 672679).In Unimark Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd 1998 JOL 4003 (T); 1999 2 SA 986 (T) 998AB; and LAWSA, supra.

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[14] In Concor Holdings (Pty) Ltd t/a Concor Technicrete v Potgieter10the

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 LAWSA11. 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.

10 2004 4 All SA 589 (SCA) ; 2004 6 SA 491 (SCA) 497 A to B. 11 See LAWSA, “THINGS” – OWNERSHIP – paragraph 184.

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[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 engineering13. 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 accessory14.

12 LAWSA, supra, and Konstanz Properties (Pty) Ltd v Wm Spilhaus & Kie (WP) Bpk supra 281A. According to CareyMiller The Acquisition and Protection of Ownership 25 the test is whether the movable can be "structurally integrated" into or can become part of the fabric of the building. 13 LAWSA, supra. 14 See KAWSA, supra, and the judgments referred to in footnote 27.

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[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 immovable15. In Konstanz Properties (Pty) Ltd v

WM Spilhaus & Kie (WP) Bpk16 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.

DISCUSSION

15 Macdonald Ltd v Radin & the Potchefstroom Dairies & Industries Co Ltd supra 467: "But the intention required . . . to destroy the identity, to merge the title, or to transfer the dominium of movable property, must surely be the intention of the owner. It is difficult to see by what principle of our law the mental attitude of any third party could operate to effect so vital a change." See also 469: "Were it otherwise, the ownership of the property would be dependent upon the mental attitude of a man to whom it did not belong the hire purchaser and who did not intend to deprive the true owner of his rights". See also Konstanz Properties (Pty) Ltd v Wm Spilhaus & Kie (WP) Bpk supra at 282E, and LAWSA, supra. 16 Konstanz, supra, at page 281-282.

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[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.

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[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 sign18.”

17 Record, page 68, lines 13 to 20. 18 Record, page 94, lines 5 to 6.

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[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

19 (a) Snyman; Criminal Law Mashanga 1924 AD 11 12; Bowden 1957 3 SA 148 (T) 150B; Kgware 1977 2 SA 454 (O) 455. In Mnyandu 1973 4 SA 603 (N) 606A it was said that the crime is the unlawful and intentional damaging of property belonging to another person or in which another person has a substantial interest.

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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

omission20. 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

20 Snyman, supra, page 97.

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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

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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

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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

21 Record, page 125, lines 18 to 25 and page 126, lines 1 to 4.

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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"

HF BRAUCKMANN.

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

I agree,

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M. T. MANKGE

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA