FS Mining Wash Plant (Pty) Ltd v V-Flow SA (Pty) Ltd and Another (1291/2024) [2024] ZANWHC 104; [2024] 2 All SA 849 (NWM) (12 April 2024)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF

SOUTH AFRICA

NORTH WEST DIVISION,

MAHIKENG

CASE NUMBER: 1291/2024

Reportable: YES

Circulate to Judges: YES

Circulate to Magistrates:

YES

Circulate to Regional Magistrates: YES

In the matter between:-

FS MINING WASH PLANT (PTY) LTD REG NO 2021/400264/07 Applicant and V-FLOW SA (PTY) LTD REG NO 2012/017043/07 1st Respondent

JABULANE

CALEB MAVIMBELA 2nd Respondent

This judgment is handed down by means of electronic communication (e-mail) to the representatives of the parties. The date and time that the judgment is deemed to be handed down is 12 April 2024 at 12h00.

JUDGMENT

FMM REID J

Introduction:

[1] This is the anticipation of the return date of a rule nisi order that was granted by this Court on an ex parte basis on 13 March 2024.

[2] In short, the dispute between the parties deals with possession of, and access to, a property on which a chrome washing plant is situated at Stand 58A, Pole: S[...] B[...], Matooster-Boshoek, Rustenburg (the property). The applicant (FS Mining) is the owner of the property and has leased the property to the first respondent (V-Flow) for the use of chrome washing, under certain conditions. It will be set out in detail below that FS Mining, as owner of the property, as well as V-Flow as lessee of the property, both have the right to possess and access the property.

[3] The rule nisi order dated 13 March 2024 entailed:

3.1. That the matter is regarded as urgent and Rule 6(12) of the Uniform Rules of Court is applicable.

3.2. A rule nisi is issued calling on the respondents to show cause on 18 April 2024 (which date was duly anticipated to 8 April 2024) why a final order should not be granted in the following terms:

3.2.1. That V-Flow and the 2nd respondent (Mavimbela) are ordered to restore to FS Mining its ante omnia undisturbed possession of the property.

3.2.2. In the event that V-Flow refuse to restore possession of the property as directed in prayer 1, the Sherriff of the Court is directed and authorised, with the assistance of locksmiths, the South African Police Service (SAPS) and private security providers, should assistance be needed, to seize and restore to FS Mining its ante omnia undisturbed possession of the property.

3.2.3. That the rule nisi as issued in terms of clauses 2.2.1 and 2.2.2 above, shall operate as an interim order with immediate effect, pending the return date.

3.2.4. That the rule nisi may be anticipated on 48 hours’ notice to all the parties.

3.2.5. That the costs of the application be reserved for determination on the return date.

[4] The question before this Court is whether the rule nisi issued on 13 March 2024 should be confirmed or be discharged.

Material background

[5] On 11 November 2023 the parties entered into a “Plant Lease or Utilisation Agreement” (the contract) in terms of which FS Mining was to provide access to the property to employees of V-Flow for the washing of chrome. The written contract is for an initial period of six (6) months, with the option of it being renewable by the parties.

[6] The contract has been drafted by people who are not au fait with legalities of a contract. The typed written contract includes many handwritten amendments. The exact terms of the contract, and additional verbal terms of the contract, is in dispute between the parties.

[7] In determining whether the rule nisi should be confirmed or not, the question of possession ante omnia can be inferred from the written part of the contract. The relevant part of the contract reads as follows:

“1. Introduction.

FS MINING WASH PLANT (Pty) Limited (hereafter referred to as “P” or “Plant Owner” represented by Ms Precious Thulisile Mabuza) would like to lease the chrome ore concentrates beneficiation plant located at Farm 1st Avenue Waterfall East Rustenburg (hereafter referred to as “Site”) with equipment (equipment and items list is shown in Annexure “A”) to V-Flow SA (Pty) LTD (herein after referred to as “T” or “Exclusive User: Plant Contractor”) for the production of 40% - 42% grade of chrome ore concentrate at site in Boshoek, Rustenburg Municipality NW Province. The supplying of feeding material is done and arranged by Plant Contractor Exclusive User.

2. Definition of roles.

2.1 Plant Owner: Ms Precious Thulisile Mabuza (FS Mining) as owner of the plant at the site is responsible providing the plant with equipment allowing “T” to assume full operation for the production of chrome concentrate at various grades 40%-42% chrome ore concentrates:

2.1.1 Plant Owner will appoint a representative for observation and consulting purposes at site Plant Lord’s own expense.

…

2.1.5 The Plant Owner will provide the existing list of sources of raw material and give the rights of all materials and tailing to be utilised by the plant contractor for production, which currently on site.”

[8] FS Mining states that it is a term of the contract that the washing of chrome is to be done by the employees of FS Mining, due to the fact that the chrome washing operating machines are of a unique design and only duly trained operators can operate the chrome washing machines. If done by untrained/unskilled people, the operating machines will be damaged which monetary value in damages will exceed several million rands.

[9] It is stipulated in paragraph 4.1 of the contract that V-Flow will commence chrome washing and resume operation of the chrome washing as from 15 November 2023. Paragraph 4.1 reads that “This lease agreement is effective from 15 November 2023 that Plant Lessee commence to take over and resume operation.”

[10] FS Mining states that the full deposit was not paid by V-Flow on the pre-determined date of 15 November 2023. V-Flow denies this.

[11] In response to the failure of V-Flow to pay the contractual amount of the full deposit, FS Mining prevented V-Flow from gaining access to the property on 23 December 2023. It is alleged by FS Mining that the employees of V-Flow became violent on 28 December 2023 in order to gain access to the property. This initiated an urgent application for spoliation of the property, which order was granted on 9 January 2024 by this Court (the spoliation order).

[12] On 16 January 2024 FS Mining filed a notice of application for leave to appeal against the spoliation order. FS Mining inter alia claims that spoliation has not taken place and that FS Mining exercised a legitimate contractual right in denying V-Flow access on

the basis that V-Flow committed a material breach of the contract in failing to pay the full deposit amount.

[13] This prompted V-Flow to launch an urgent application to enforce the spoliation order dated 9 January 2024 in terms of section 18 of the Superior Courts Act.

[14] On 31 January 2024 V-Flow successfully brought an urgent application in terms of section 18(1) read with section 18(3) of the Superior Courts Act to have the order dated 9 January 2024 enforced pending the finalisation of the appeal process. This order was granted by Mfenyana J who also ordered that FS Mining and Mabuza jointly and severally pay the costs of the application on a scale between attorney and own client, the one paying the other to be absolved. I will refer to this order as “the enforcement order”.

[15] On 6 February 2024 V-Flow launched an urgent application for contempt of court against FS Mining for failing to allow V-Flow unrestricted access to the property. This application was heard by Scholtz AJ on 23 February 2024, who struck it from the roll for want of urgency.

[16] The application for leave to appeal from FS Mining was met with a notice in terms of Rule 30(1): Irregular Step in the Proceedings, filed by V-Flow which notice is dated 27 February 2024, claiming that the noting of an appeal is irregular on the following grounds:

16.1. The absence of a suspension order granted by the court as envisioned in section 18(3) of the Superior Courts Act 10 of 2013 (Superior Courts Act); and

16.2. That the order is interim of nature and not subject to appeal in terms of section 18(2) of the Superior Courts Act.

[18] The factual disputes in this application do not have any relevance on determining whether spoliation has taken place and should be restored. The factual disputes between the parties that are not essential for determining the outcome of the rule nisi, are listed for the sake of completeness in order to place the actions of the parties in context. These non-essential factual disputes inter alia include:

18.1. The exact terms of the contract;

18.2. Whether the written contract was supplemented by an oral agreement;

18.3. Whether there was performance by V-Flow to pay the monthly agreed upon amount of rental; and

18.4. Whether FS Mining terminated the contract on 28 December 2023 and whether such termination was done lawfully.

[19] This brings me to the current application.

[20] On 13 March 2024 V-Flow took possession of the property and locked the employees from FS Mining out from obtaining access to the property. V-Flow locked the gates that provide access to the property with locks and chains. FS Mining launched this urgent application for which a rule nisi was granted ordering V-Flow to grant possession of, and access to, the property.

[21] FS Mining claims that the action of V-Flow is as a result of V-Flow not being satisfied with the fact that the employees of FS Mining operate the machinery of the chrome washing plant. FS Mining states in the founding affidavit that the property was “violently high-jacked” by employees of V-Flow that “operated as a mob”. FS Mining attached video footage and photographic evidence to the urgent application to support the allegations that the employees of V-Flow locked FS Mining out of the property. It is stated in paragraph 25 of the founding affidavit of FS Mining that:

“25. Today, during or about 07:48 am, the second respondent has sent a mob of over 10 unidentified armed men with the majority wearing balaclava’s who have violently taken over the property, intimidated and chased away the unarmed guards and the employees. Photos attached as Annexure “L””.

[22] Whilst admitting that there were employees of V-Flow on 13 March 2024 at the entrances to the property, V-Flow vehemently denies that any violence or threatening behaviour occurred by its employees. The

following is stated in paragraph 76 of the answering affidavit:

“Ad paragraphs 25 and 26:

76.1 It is admitted that several of V-Flow’s workers, security personnel and I attended the immovable property on Wednesday 13 March 2024, as alleged.

76.2 The purpose thereof was to simply enter upon the premises and resume the washing of the chrome, as we are authorised to do in terms of both the lease agreement and the spoliation/interdict order.

76.3 We are not a ‘violent mob’, as so disparagingly referred to by Dr Mabuza.

76.4 We never chased any of FS Mining’s personnel or representatives away. They left of their own volition. That, we concede, does not amount to them relinquishing possession of, or access to, the immovable property and the plant. No spoliation has occurred. They are both entitled and welcome to continue their access and possession – which by no means was exclusive to V-Flow as already held by this Court.”

[23] As grounds for the confirmation of the rule nisi, it is argued on behalf of FS Mining that the events overcame the spoliation and enforcement orders in that the contract was terminated by FS Mining on 28 December 2023 and that the termination of the contract was confirmed on 2 February 2024. As mentioned, V-Flow disputes the lawful termination and does not accept the repudiation of the contract by FS Mining.

Analysis

[24] It is necessary to recap the material events to bring this application for discharge or confirmation of the rule nisi in context. These are also facts that are common cause:

24.1. The contract was entered into on 11 November 2023.

24.2. On 28 December 2023 FS Mining repudiates (gives notice of cancelation of) the contract, which repudiation is not accepted by V-Flow.

24.3. FS Mining denies V-Flow access to the property on the basis that the contract has been terminated.

24.4. On 9 January 2024 V-Flow successfully obtained an urgent spoliation order in terms of which FS Mining is ordered to grant access of the property to V-Flow. In the spoliation order the following was found by this Court:

“15. The applicant (V-Flow) requests uninterrupted access to the property. The respondents’ (FS Mining’s) version is that the respondent’s employees have been doing the washing at the chrome plant and that the applicant’s employees were accompanied by the respondents’ employees to do the washing of the chrome, due to the design of the chrome washing plant being a unique and special design that is very expensive.

16. The access to the property in the company of the respondents’ employees should not hamper the undisturbed access of the applicant.

The respondents state that they fear the applicant’s employees will damage the chrome washing machines should they be granted

undisturbed access. However, the access up to this point in time, on the respondent’s (FS Mining’s) version, is that the respondents’ employees accompanied the applicant’s (V-Flow) employees and the respondents’ employees operate the chrome washing machines. With the respondents’ employees operating the chrome machines, there cannot be any reasonable fear that the chrome machines would be damaged by the applicant’s employees.

17. In my view, there is no reason why the status quo should not continue. The spoliation application seeks that the status quo be restored.”

24.5. On 16 January 2024 FS Mining filed an application for leave to appeal against the spoliation order, to which V-Flow files an application of an irregular step in terms of Rule 30(1) on 27 February 2024.

24.6. Also on 16 January 2024, V-Flow successfully obtains an order that the spoliation order is to be enforced in terms of section 18(3) of the Superior Courts Act, pending the appeal process.

24.7. On 2 February 2024, FS Mining addresses correspondence to confirm the termination of the contract on 28 December 2023. V-Flow maintains that the termination is unlawful and does not accept the repudiation of the contract.

24.8. On 6 February 2024 V-Flow launched a contempt of court application on an urgent basis in order to gain access to the property, which application was struck from the roll on 23 February 2024 by Scholtz AJ for lack of urgency.

24.9. FS Mining maintains that access has never been denied to V-Flow employees, but claims that the dispute lies in the operation of the chrome wash plant machinery, which is to be done by the employees of FS Mining.

24.10. FS Mining claims that on 13 March 2024, V-Flow locked the entry gates of the property and denied access of the property to FS Mining, thereby effectively locking FS Mining out of their property. This is denied by V-Flow who claims in paragraphs 55 and 56 of the answering affidavit that FS Mining’s personnel initially sought to deny access to V-Flow but ultimately relented and permitted employees of V-Flow to enter, and that FS Mining’s employees left the property “of their own volition”.

24.11. FS Mining approaches the court on 13 March 2024 successfully on an urgent ex parte basis to obtain a rule nisi in terms of which V-Flow is to restore FS Mining with its ante omnia undisturbed possession of the property.

24.12. The return date of the rule nisi is anticipated by V-Flow to 8 April 2024. FS Mining seeks confirmation of the rule nisi granted on 13 March 2024 which restores FS Mining to undisturbed possession of the property. V-Flow seeks dismissal of the rule nisi which has the effect that V-Flow has undisturbed possession of the property. This is the application currently before this

Court.

[25] To simplify the orders granting access to the property and possession of the property, the following summation is apposite:

25.1. On 9 January 2024 an order is granted and on 31 January 2024 execution thereof is confirmed, in terms of which FS Mining is to grant to V-Flow “uninterrupted possession of the property…”.

25.2. On 13 March 2024 a rule nisi order is granted in terms of which V-Flow is ordered to restore to FS Mining “uninterrupted possession of the property…”

[26] At face value, the confirmation of the rule nisi appears to be in conflict with the spoliation order. However, the reality is that in terms of the contract, both parties are to have possession of, and access to, the property.

[27] To put it differently: Neither party should refuse the other party entry to the property. The contract determines that V-Flow leases the property from FS Mining, under conditions such as that FS Mining’s personnel operate the chrome washing machine. Both FS Mining and V-Flow is to have possession of the property and access to the chrome washing machines.

The legal principles

[28] In the heads of arguments submitted on behalf of the applicant, it is submitted that the burden of proof to demonstrate why a rule nisi should not be confirmed, rests on the respondent. I disagree. It is trite law that the onus to establish that the requirements of a rule nisi has been met (which requirements are that of a final interdict), rests on the applicant.

[29] This principle has been confirmed by the Appeal Court (as it was then known) in SAFCOR Forwarding (Johannesburg) (Pty) Ltd v National Transport Commission 1982 (3) SA 654 (A) at 676A as follows:

'The objection that the issue of such a rule nisi places an unwarranted onus the respondent is, in my view, unfounded. All that the rule does is to require the respondent to appear and to oppose should he wish to do so. The overall onus of establishing his case remains with the applicant and the rule does not cast an onus upon the respondent which he would not otherwise bear.'

[30] This principle was also confirmed in Bominflot LTD v Klein Hung Shipping Co Ltd (Central Leasing Corporation and Another Intervening) 2004 (2) SA 556 (C) that, where an applicant does not establish ownership of movable property, the rule nisi is to be set aside.

[31] A rule nisi is nothing other than an interim interdict with a return date for the respondent to prove its rights. See Zulu and Others v Ethekwini Municipality and Others 2014 (4) SA 590 (CC). On the return date, the rule nisi is either confirmed, and thus becomes a final interdict, or discharged, in terms of which the interim interdict is dismissed.

[32] The legal position that a rule nisi operates as an interim interdict has also been confirmed in the Constitutional Court in National Director of Public Prosecutions and Another v Mohamed NO and Others 2003 (4) SA 1 (CC).

[33] The requirements for a final interdict is trite. The locus classicus for the elements of establishing a final interdict has been captured in our law in Setlogelo v Setlogelo 1914 AD 221 and was recently confirmed by the Constitutional Court in Residents, Industry House and Others v Minister of Police and Others 2023 (3) SA 329 (CC), to be a clear right to the relief sought, an injury actually committed or reasonably apprehended, and the lack of an adequate alternative remedy.

[34] In order to have the rule nisi confirmed, FS Mining has the onus to prove:

34.1. A clear right. This is common cause that FS Mining is the owner of the property. As such FS Mining has a clear right to possession of, and access to, the property. In addition, FS Mining has the contractual right agreed between the parties to have its employees execute the work on the chrome washing machine.

34.2. An injury actually committed or reasonably apprehended lies in the claim that the chrome washing machine is valued at millions of rands and can be damaged irreparably should it be operated by V-Flow employees only. In the event that V-Flow continues to lock FS Mining from the premises, the injury is committed or reasonably apprehended.

34.3. No adequate alternative remedy. FS Mining and V-Flow have corresponded via their attorneys extensively. They could not reach a mutual agreement. I hold the view that FS Mining does not have any adequate alternative remedy than approaching the court.

[35] I subsequently find that FS Mining has acquitted the onus and has proven that it is entitled to confirmation of the rule nisi, for the reasons set out in paragraph [34] above. The rule nisi should thus be confirmed, which has the result that a final interdict is granted in the terms of the rule nisi.

[36] As set out in paragraph [25] above, this results, at face value, to two (2) conflicting interdicts being granted:

36.1. FS Mining is to allow V-Flow access to the property (as ordered on 9 January 2024 and enforced on 31 January 2024); and

36.2. V-Flow is ordered to allow FS Mining access to the property (as ordered in the rule nisi dated 13 March 2024).

[37] Although it appears conflicting, these two orders are not mutually exclusive. Having regard to the content of the contract, and the fact that it was initially agreed upon, both parties should work together as envisioned in the contract.

[38] Both parties deny that they have, at any relevant time, spoliated the other party by preventing entry of the other parties’ employees to the property. This confirms and underscores the inference of this Court that both parties had possession of, and access to, the property and that both parties should have possession of, and access to, the property.

Section 18(4) of the Superior Courts Act

“18 Suspension of decision pending appeal

(1) Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal.

(2) Subject to subsection (3), unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision that is an interlocutory order not having the effect of a final judgment, which is the subject of an application for leave to appeal or of an appeal, is not suspended pending the decision of the application or appeal.

(3) A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders.

(4)(a) If a court orders otherwise, as contemplated in subsection (1)-

(i) the court must immediately record its reasons for doing so;

(ii) the aggrieved party has an automatic right of appeal to the next highest court;

(iii) the court hearing such an appeal must deal with it as a matter of extreme urgency; and

(iv) such order will be automatically suspended, pending the outcome of such appeal.

(b) 'Next highest court', for purposes of paragraph (a) (ii), means-

(i) a full court of that Division, if the appeal is against a decision of a single judge of the Division; or

(ii) the Supreme Court of Appeal, if the appeal is against a decision of two judges or the full court of the Division.

(5) For the purposes of subsections (1) and (2), a decision becomes the subject of an application for leave to appeal or of an appeal, as soon as an application for leave to appeal or a notice of appeal is lodged with the registrar in terms of the rules.”

[40] The dispute between the parties falls to be determined in terms of section 18(4) of the Superior Courts Act. This becomes even more exigent should the rule nisi be confirmed.

[41] The Supreme Court of Appeal cemented the legal position of the parties in relation to section 18 of the Superior Courts Act, in the matter City of Tswane Metropolitan Municipality v Vresthena (Pty) Ltd and others 2023 (6) SA 434 (SCA) where it was confirmed that the interpretation of section 18(4) allows the appellant an automatic appeal to approach the next highest court. In terms of section 18(4)(b) the next highest court in this instance will be the Full Court of this Division.

[42] My understanding of section 18 of the Superior Courts Act is as follows:

42.1. When a court order is issued, it has to be executed.

42.2. When an appeal, or notice of intention to appeal, is lodged against the order, the pending appeal ex lege suspends the execution of the order.

42.3. Should a party approach the court for an order to enforce the execution of the order pending the appeal, and the execution order is granted, the party wishing to appeal against the order has an automatic right to appeal to the next highest court. These appeals are inherently urgent.

42.4. The next highest court will be that of the Full Court of this Division in terms of section 18(4)(b) of the Superior Courts Act.

[43] Should the party wishing to pursue an appeal in terms of section 18 of the Superior Courts Act, the Judge President of this Division is to be approached in writing and by urgent notice, to be requested in terms of section 18(4) of the Superior Courts Act to constitute a Full Court to determine the appeal on the merits of the matter.

[44] The notice of appeal is to be lodged with the Registrar of this Court in terms of section 18(5) of the Superior Courts Act.