Clear Cut Projects (Pty) Ltd and Another v Minister of Police and Another (2058/2021) [2021] ZAFSHC 333 (30 September 2021)

IN THE HIGH COURT OF SOUTH

AFRICA

FREE STATE DIVISION,

BLOEMFONTEIN

Case no: 2058/2021

In the matter between:

CLEAR CUT PROJECT (Pty) Ltd

First Applicant

W W CIVIL AND CONSTRUCTION (Pty) Ltd Second Applicant

and

THE

MINISTER OF POLICE

First Respondent

NATIONAL

COMMISSIONER OF SOUTH

AFRICAN

POLICE

SERVICE Second Respondent

CORAM:

WRIGHT AJ

HEARD ON: 12 AUGUST 2021

DELIVERED ON: 30 SEPTEMBER 2021

INTRODUCTION

[1] The Applicants launched an application for the return of an excavator[1] which they contend were in their possession, alternatively, under their control, at the time when it was seized by members of the South African Police Services. The seizure took place during early May 2020. At the time, the excavator was standing on premises not belonging to either of the Applicants and was used in terms of a contract with a third party. It is alleged that a driver and another person, both in the employ of the Applicants, were busy loading the excavator onto a low bed trailer when they were confronted by security officers from the Matjhabeng Local Municipality as well as South African Police officers. The Applicants’ employees were instructed to drive the trailer with the excavator on it to the Virginia Police Station for storage where it was confiscated / impounded. The excavator is still in the possession of the SAPS.

[2] In their answering affidavit the Respondents indicated that they oppose the application essentially on the ground that the excavator was lawfully seized.[2] There are a number of factual disputes between the parties, most evidently regarding the question whether the person (or persons) who were found in the vicinity of the excavator were in fact in the employ of the Applicants. Although this particular factual dispute is evident from the papers, the Applicants’ counsel denied during oral argument that such a factual dispute exists.

[3] This is not the Applicants’ first attempt to retrieve the excavator by means of court applications. Their previous attempts failed.[3] At least two previous applications have been struck from the roll due to procedural irregularities. Interestingly enough, it is the Respondents that took the trouble of providing details of all the previous application attempts, contrary to the Applicants who simply referenced two. The various failed attempts resulted in a time lapse of about a year from the date of the alleged spoliation to the issuing of the present application.[4]

RELIEF

CLAIMED

[4] Concluding his oral submissions, counsel for the Applicants requested that orders be granted “as set out in the Notice of Motion”. The wording of the prayers contained in the Notice of Motion thus stand to be considered. Prayer 1 of the Notice of Motion reads as follows:

“That the Respondents be ordered to return and restore possession and control of a tractor/excavator with registration number: JCB 200 HD to the Applicants with immediate effect, alternatively, as soon as it is practical;”

[5] The “registration number” should apparently read: JCB JS200 HD.[5] It was only after I raised this with counsel that a belated request was made to amend the Notice of Motion. It further became necessary to enquire from counsel whether the reference to the number as a “registration number” is correct. It turned out that the number is descriptive in nature and merely identifies the particular model of the excavator and is in itself not a unique identifying feature. This led to another belated request for an amendment to rectify that error. Only when counsel replied to the Respondents’ submissions, did he indicate that the reference “JCB” is in actual fact denoting the model of the excavator. This of course did not make matters easier for the Applicants as there must be more than one excavator of that particular make and model. No other and/or further description of the excavator was provided.

[6] Considering that this is not the Applicants’ first attempt at regaining possession of the vehicle, it is disconcerting that they are still struggling to set out the correct information in their Notice of Motion. The lackadaisical approach to the wording of the Notice of Motion simmered through to other aspects of the application, as will become evident from issues dealt with herein later.

[7] Prayer 2 of the Notice of Motion reads as follows:

“That the Respondents and/or anyone acting on their behalf be interdicted, restrained and prohibited from taking any undisturbed possession, control and lawful use of the said tractor/excavator;”

[8] No submissions were presented relating to the relief claimed in Prayer 2. It remains unclear on what grounds the Applicants relied for this relief or on what basis counsel included this in his request for relief “as contained in the Notice of Motion”. As I am of the view that no case was presented for such relief, I do not find it necessary to further deal with this issue. And in any event, when this point was raised with the Applicants’ counsel, he indicated that, despite asking for relief as set out in the Notice of Motion, he is in actual fact not requesting an order in terms of prayer 2.

THE

APPLICANTS

[9] The deponent to the Founding and Replying Affidavits is one Mojela Petrus Hlaoli, who describes himself as “businessman and sole director of both Applicants”. The First Applicant is Clear Cut Projects (Pty) Ltd, with registered place of business situated in Welkom. The Second Applicant is W W Civil and Construction (Pty) Ltd, with registered place of business in Botshabelo, Bloemfontein. It is explained in the Founding Affidavit that the two Applicants are not only linked through the fact that one person is the sole director of both companies, but also because the Applicants “conducts [sic] business in construction projects and rental of the their construction machinery including tractor/excavators, also known as yellow fleet, to individuals and companies for the purposes of construction works”.

[10] It is pertinently averred that the excavator of concern herein “has been in undisturbed, control and possession of the Applicants for close to 2 (two) years”. [own emphasis] However, the excavator was rented from the First Applicant only. This is not only evident from the averments in the Founding Affidavit, but also from the contents of the quotation and invoice on which the Applicants rely. Furthermore, a letter of demand sent to the Provincial Commander of the SAPS by attorneys refers only to the First Applicant as the “client” whose excavator had been seized. The Applicants’ insistence (on the papers as well as initially in oral argument) that both companies were in possession of the excavator at the time of its spoliation is but one of the incongruities which presents as problematic for them.

[11] Counsel for the Applicants eventually and reluctantly conceded during oral argument that in the premises the Second Applicant is at most an interested party (if at all), and that only the First Applicant has locus standi to claim relief in regard to the excavator. Considering the manner in which the Applicants chose to present their case and for purposes of this judgment I will continue to refer to both Applicants .

MANDAMENT VAN SPOLIE

[12] The relief claimed by the Applicants in Prayer 1 falls under the auspices of the remedy commonly known as the mandament van spolie. The mandament van spolie has three essential characteristics:[6] (i) it is a possessory remedy; (ii) it is an extraordinary and robust remedy; and (iii) it is a speedy remedy. In order to obtain a spoliation order an applicant must prove that he/she was in possession of the property, and that the respondent deprived him/her of the possession forcibly or wrongfully against his/her consent.

[13] An applicant seeking a spoliation order must “prove the facts necessary to justify a final order”.[7] And he/she needs to do so by the same balance of probabilities required in a civil action.

[14] I proceed to consider whether the Applicants succeeded in proving their entitlement to the return of the excavator.

POSSESSION

[15] The Applicants needed to prove that they were in de facto possession of the excavator at the time of being despoiled. A company loosely referred to in the papers as Vice[8] Trading allegedly concluded an agreement with the First Applicant for the rental of an excavator, to be transported on a low bed trailer and delivered to a chosen location. A site was pointed out to the driver of the excavator where trenches were to be dug over the course of two days. After each day’s use the excavator was parked and secured at a designated place identified by Vice Trading. It was further agreed that Vice Trading “would ensure the safekeeping and secure parking of the excavator while it remained under their use and control” [own emphasis]; thus, under the control of Vice Trading.

[16] No details are set out in the quotation or invoice from which the excavator in question may be identified. In the application papers the Applicants did not describe the excavator with any identifying details other than references to the “registration number”. Despite counsel for the Applicants submitting that it should be clear to everyone concerned which excavator is being referred to, this appears not to be the case. The Respondents list six excavators confiscated around Welkom and surrounding areas during 2020. In their Founding Affidavit the Applicants themselves refer to another excavator seen or found in the vicinity “where the Applicants’ excavator was used”. The mere fact that the SAPS admits to confiscating an excavator does not sustain as necessary inference (i) that the parties are referring to the same excavator or (ii) that the SAPS removed an excavator from the Applicants’ possession.

[17] It is the Applicants’ case that at the time of spoliation they possessed the excavator through the driver[9] (an employee) as their agent or representative. This person, Mr Thabo Monese, did not depose to an affidavit, neither did the person who allegedly accompanied him (Mr Mvula Mbonga).

[18] Despite the Applicants’ deponent alleging that the facts contained in the Founding Affidavit fell within his personal knowledge, unless “otherwise indicated”, most (if not all) allegations relating to the whereabouts of the excavator during the days for which it was rented by Vice Trading could not possibly fall within his personal knowledge. The true and correct situation is not explained in the affidavit and no confirmatory or supporting affidavit from any employee was attached. Thus, the following allegations are unconfirmed hearsay:

(i) that the Applicants’ driver was in possession or control of the excavator (and through him, the Applicants);

(ii) the explanation provided to the SAPS and security officers for the presence of the excavator at the site;

(iii) the reason(s) presented by the SAPS as to why the excavator is confiscated;

(iv) the explanation provided as to why the excavator needed to remain at the police station after it was moved on instructions from police officials.

[19] In as far as it is the Applicants’ case that their excavator was used at the site by their employee(s) in terms of a contract with a company called Vice (or Visi Trading), there is no corroboration thereof. No person from Vice Trading deposed to an affidavit. And the reference to that company in the quotation and invoice are vague at best.[10]

[20] The Applicants further allege that police officials interviewed one of their employees, one Mr Moeketsi Molekoa, who explained that he was the person who had issued the invoice to Vice Trading. Allegedly he also explained the extent of the Applicants’ business enterprises in an attempt to clarify the presence of the excavator at the relevant site. Mr Molekoa also did not depose to an affidavit. The Applicants allege that the interview with Mr Molekoa took place at the premises of the Applicants, without explaining which exact premises that was (the two Applicants have different registered business addresses and it is not alleged that they conduct their businesses from a shared premises).

[21] The Respondents did not apply for the striking out of the many hearsay averments in the Applicants’ affidavits but merely denied that the full contents of the Founding Affidavit fell within the personal knowledge of the Applicants’ deponent.[11] I am of the view that no reliance should be placed on the hearsay averments in the Founding Affidavit. It is not corroborated through any person and the Applicants did not apply for its admission in terms of any of the provisions of section 3 of the Law of Evidence Amendment Act, 45 of 1988. The deponent did not even indicate how and/or from whom he learned of the information.[12] There was no necessity for the Applicants to rely on hearsay information. Should the people mentioned in the papers indeed be employees of the Applicants, it would have been easy and practically possible to obtain affidavits from them. The fact that this was not done, and further considering the allegations made by the Respondents regarding the person found in possession of the excavator, is suspicious.

[22] The Respondents dispute the Applicants’ version that the person found with the excavator was in the employ of either of the Applicants. On the Respondents’ version the “driver” explained that he had been hired by “unknown people”. He did not present any documentation detailing the alleged contract with Vice Trading or showing his connection to either of the Applicants. This should have been easy to do if he was legitimately employed and if he was in fact in the process of representing the Applicants in the execution of a contract. The averments made by the Respondents throw doubt over the veracity and reliability of the Applicants’ averments relating to their connection to the person in whose possession the excavator was found.

[23] I do not consider this dilemma of the Applicants as part of any exercise in adjudicating the legitimacy of their alleged possession (which is not relevant in spoliation proceedings). I consider it only as part of the adjudication of the first requirement for a mandament van spolie: were the Applicants in possession of the excavator at the time of spoliation?

[24] The allegations relating to the circumstances surrounding the whereabouts of the excavator and who was with the vehicle at the time, are important for the Applicants’ case. As a legal entity, a company cannot possess movable property in the same manner as a person. It is reliant on control through its employees / agents / representatives. The First Applicant needed to convince the court that the person found with the excavator was in its employ and that the First Applicant possessed the vehicle through that employee. As such, the hearsay allegations served an important purpose and went to the very roots of the Applicants’ case. Without those roots, there is nothing anchoring the Applicants’ tree of alleged possession.

[25] There is a definite factual dispute between the parties as to whether the excavator was found in the possession of the First Applicant’s employee, and thus, whether the First Applicant was in de facto possession of the vehicle at the time of its seizure by the SAPS. The exact site where the excavator was seized by the SAPS appears also to be in dispute. The Applicants make only vague references to a location / premises at “Naudeville, Extension in Welkom”. An affidavit from someone from Vice Trading may have assisted on this point too.

[26] It is trite that factual disputes in applications, where there is no request for the hearing of oral evidence, is adjudicated on the facts as stated by a respondent together with the facts alleged by the applicant that are admitted by the respondent.[13]

[27] The Applicants did not request that the matter be referred for oral evidence. They are bound to stand or fall by the acceptable and admissible (and in the circumstances, confirmed) averments in their Founding Affidavit.

[28] The Applicants failed to prove that they were in possession of the excavator at the time of confiscation. They even failed to prove what excavator was seized or from which site it was so seized. This should be the end of the matter. Should I however be wrong with my conclusion as to the question of possession, the following question needs to be considered: was the spoliation wrongful?

DID THE SAPS SEIZE THE EXCAVATOR WRONGFULLY / UNLAWFULLY?

[29] The Respondents explain that police officials received information about “an incident of business armed robbery” at premises of the Matjhabeng Municipality, Welkom, and illegal mining at a closed shaft belonging to Harmony mining company. During the robbery a water pump was stolen, but later recovered from a certain farm. On the very same farm, during further investigations, a “JCB (JS 200)” excavator was found which had allegedly been used to dig a hole for the illegal mining activities at Harmony.[14] The excavator was only a few metres away from the stolen water pump. The driver of the excavator was interviewed by the SAPS. He explained that “he was hired, by unknown people, to work with it at St Helena Shaft 4 old mine to dig a hole”. [own emphaisis] The driver took the police to the shaft which was later confirmed as being on the premises of Harmony mining company.

[30] The excavator was confiscated for investigation purposes and a criminal case was opened for “conspiracy to commit illicit mining”. It is the Respondents’ case that the police officials had a reasonable suspicion that the excavator was used to “dig a sump in the said mine and the water pump was used to suck the water out of the sump in order to collect gold bearing material”. In further response to the Applicants’ assertions that the excavator belongs to them and that it was used in terms of a contract concluded with Vice Trading, the Respondents allege the following:

“With regard to case docket Mas no: 47/05/2020 in which the alleged excavator is the subject matter herein, there is a lot of grey areas as to its actual relationship with the Applicants and as such all information in possession of the Respondents as provided by the Applicants is currently under serious investigation to the extent that the matter is jointly handled by SAPS, HAWKS and Asset Forfeiture Unit.”

[31] During oral arguments much was made of the Respondents’ allegations and the lacunae therein. This may have been done in an attempt to hide the defects and lacunae in the Applicants’ own case. Be that as it may, the Applicants have the burden to prove that they are entitled to the relief claimed. Any defects there may be in the Respondents’ case and papers do not assist them in doing so. So, it did not assist the Applicants to point out that no person connected to the Applicants have so far been arrested. Nor did it help to refer to information obtained through their deponent’s own investigations relating to other individuals who had been arrested for illegal mining in the area.

[32] The Applicants do not pertinently aver in their founding papers that the SAPS acted wrongfully. They seem to expect the court to infer this from allegations such as that “[t]hey further alleged that the mine will be laying criminal charges but did not say against whom and what would be the charges.” The other complaints levelled against the SAPS relate to occurrences and/or omissions after the excavator had been seized and does not impact on the question as to whether the SAPS had acted lawfully in confiscating the excavator. In his Heads of Argument, counsel for the Applicants also do not submit that the confiscation was unlawful, except for submitting that “no required consent was given to the Respondents for the dispossession of same”.

[33] I am satisfied that the Applicants failed to prove that the dispossession of the excavator was unlawful or wrongful.

CONCLUSION

[34] I am of the view that the Applicants failed to prove that they were in possession of the excavator at the time it was seized. Furthermore, the excavator was confiscated by the SAPS in a seemingly legitimate and lawful manner. In the light of these conclusions, it is not necessary to consider the “problems” in the Respondents’ case highlighted by Applicants’ counsel. The Applicants fail on their own papers.

COSTS

[35] No argument was presented as to why costs should not follow the result.

ORDER

[36] In the premises I make the following order:

“The application is dismissed with costs.”

G.J.M. WRIGHT, AJ

For the Applicants: Adv. T.L. Manye

Instructed by: Sesele Attorneys

c/o Moroka Attorneys

Bloemfontein

For the Respondents: Adv. S.S. Jonase

Instructed by: State Attorney

[1] Throughout the Notice of Motion and Founding Affidavit the Applicants referred to the relevant earth moving vehicle as a “tractor/excavator”. The reason for the inclusion of the word “tractor” in the description was never explained.

[2] The Respondents’ Heads of Argument did not clearly set out and/or expound on the basis for the Respondents’ opposition. Instead, it contains an extensive exposition of the legal principles generally applicable to spoliation applications, listing all defences that may be available to a respondent, without clearly indicating which of the defences they actually rely on for purposes of this specific application. During oral arguments, counsel for the Respondents conveniently latched onto comments made from the Bench in response to the Applicants’ submissions to present the Respondents’ case.

[3] Referred to by the Applicants themselves as the “sorry history” of the matter.

[4] Considering the length of time which had lapsed and the difficulties experienced by the Applicants in making out a proper case on affidavits, one is left to ponder why summons based on the rei vindicatio had not yet been issued.

[5] As explained in the Replying Affidavit.

[6] Erasmus, Superior Court Practice, Volume 2, page D7-1.

[7] Burnham v Neumeyer 1917 TPD 630 at 633

[8] On the quotation the lessee is referenced as Visi Trading. This is also the name used by the Applicants’ attorney in a letter to the SAPS, dated 8 June 2020.

[9] The terms “driver” and “operator” are used interchangeably in the Founding Affidavit.

[10] The only information of this so-called client is contained in the following portion of the quotation and invoice: “TO:

VISI TRADING

WELKOM

FREE

STATE 9460”

[10] The only information of this so-called client is contained in the following portion of the quotation and invoice:

“TO:

VISI TRADING

WELKOM

FREE

STATE

9460”

[11] Counsel for the Respondents took umbrage at the implication that they may have missed an opportunity to have the allegations struck out. He was namely of the opinion that the mere denial that all the facts contained in the Founding Affidavit fall within the personal knowledge of the Applicants’ deponent sufficiently registered their attack on all the hearsay allegations as being inadmissible. However, the Respondents did not attack any allegation as being inadmissible hearsay (at least not until I raised the issue with counsel for the Applicants).

[12] Compare: Southern Pride Foods (Pty) Ltd v Mohidien 1982 (3) SA 1068 (C) at 1071 H – 1072 B.

[13] The general rule state in Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at 235 has been consistently followed in later judgments.

[14] It is seemingly accepted by the parties that this is the excavator also referred to by the Applicants.