Joint Venture between Aveng (Africa)(Pty) Ltd and Strabag International GmbH v South African National Roads Agency SOC Ltd (CA 20/2020; 1195A/2019) [2020] ZAECMHC 38 (1 September 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, MTHATHA)

Appeal Case No: CA 20/2020

ECM Case No: 1195A/2019

In the matter between:

JOINT VENTURE BETWEEN AVENG

(AFRICA) (PTY) LTD AND STRABAG

INTERNATIONAL GmbH

Appellant

and

SOUTH AFRICAN NATIONAL ROADS

AGENCY SOC LTD

Respondent

JUDGMENT

MBENENGE, JP:

[1] This appeal, involving a mandament van spolie, serves before this Court with the leave of the Supreme Court of Appeal, the Court a quo having refused such leave.

[2] The appellant is an unincorporated joint venture between Aveng, a South African based, duly registered and incorporated company, and Strabag International GmbH, a German based, duly registered and incorporated company.

[3] The respondent is the South African National Road Agency SOC Limited (SANRAL), a state owned duly registered and incorporated company based in Pretoria.

[4] The facts underpinning the appeal are, by and large, not in dispute. The appellant and the respondent concluded an agreement for the construction of the Mtentu River Bridge on the N2 Wild Coast Toll Road, near Lusikisiki, to regulate the parties’ respective rights and obligations. The respondent, in its capacity as an employer in terms of the agreement, gave vacant possession of the construction site to the appellant on 7 January 2018. On or about 30 January 2019, the appellant terminated the agreement. The respondent considered that the appellant’s termination was unlawful, and itself terminated the agreement on 5 February 2019.

[5] As at the time the matter served before the Court a quo, the dispute as to which party lawfully terminated the agreement had not been determined, it having been common cause that the agreement had been terminated, either by the appellant on 30 January 2019, or the respondent on 5 February 2019. The Court a quo did not have to concern itself with that issue. The issue also does not arise for determination in this appeal. The dispute germane to the application before the Court a quo was principally whether the appellant had removed certain goods from the construction site and deprived the respondent of its possession of the goods.

[6] The respondent thereupon sought an order in the form of a mandament van spolie directing the appellant “to return all the equipment, machinery, tools and the like as defined in its [the appellant’s] contract with the respondent as contractors equipment and which contractor’s equipment specially appears in appendix A in its letter of 12 March 2019 to the respondent, a copy of which is annexed hereto marked X and which contractors equipment appears in appendix A of that letter, marked ‘contractors equipment Mtentu Bridge’, “main contractors plant and equipment” and “main contractors containers, offices, site accommodation”, within 3 days of this order,”[1] as also an interdict restraining the appellant from interfering with the “contractor’s equipment on site.”

[7] In its quest for the spoliation order, the respondent had alleged that it had been in peaceful and undisturbed possession of the site, including the goods, and that the appellant had removed the goods from the site.

[8] The appellant had, in pursuit of its opposition to the application, inter alia, contended that “on the [respondent’s] own version the [appellant] was not in possession of the . . . equipment that forms the subject matter of this application”, which was not denied by the respondent in its replying affidavit.

[9] On the return day the Court a quo confirmed the rule nisi it had previously granted in so far as it related to the mandament van spolie, but not the prohibitory interdict.

[10] In the impugned judgment, the Court a quo, captured the essence of the issue for determination as follows:[2]

“[12] At this final stage of hearing of the matter, the court is enjoined to apply a different test, namely whether the [respondent’s] right to possess the property was clearly established; the deprivation of possession caused actual or imminent harm to the applicants; and that there is no other remedy open to the [respondent]. These requisites must be proved by the [respondent] on a preponderance of probabilities.”

[11] After finding that the appellant had “[removed] its assets from the site without having been authorised by the [respondent] to do so,” the Court a quo concluded:[3]

“[18] [T]he [respondent] has met the requisites for the grant of a final interdict. On proven facts, the [respondent] was in possession of the assets listed in appendix B when it was disposed of them without consent. On the consideration of those facts the mandament van spolie is the only appropriate remedy available to the [respondent].”

[12] It is clear, from a reading of the excerpts referred to in paragraphs 10 and 11, that the Court a quo conflated the requisites for the grant of a mandament van spolie and those of an interdict. It goes without saying that these causes of action differ materially, and so do the requisites for the grant thereof.

[13] At the hearing of the appeal, both Mr Lane, who together with Ms Carvalheira appeared for the appellant, and Mr Tshikila for the respondent, shared the view of the Court that a determination of the issue whether the appellant had been in possession of the goods at the time of the launch of the application in favour of the appellant would effectively dispose of the appeal.

[14] It is trite law that a litigant who does not deny an allegation made in the adversary’s affidavit when bound to do so incurs the risk of a conclusion being reached that he/she has acquiesced to the allegation as being correct.[4] Also, in application proceedings the affidavits constitute not only the evidence but also the pleadings and therefore these

documents should contain, in the evidence they set out, all that would have been necessary in a trial.[5]

[15] In spoliation proceedings it is a complete defence for the respondent to show that it is not in possession of the subject matter of the spoliation application.[6]

[16] In view thereof that the appellant’s basis of opposition was that it was not in possession of the goods when the application before the Court a quo was being launched, it was incumbent on the respondent to reply thereto and demonstrate that the allegation was incorrect. It

did not do so. In light of the uncontested evidence of the appellant, it would not be possible to give effect to a spoliation

order against the appellant. A spoliation order against a party other than a spoliator is logically beyond the scope of the purpose of the mandament (being to prevent persons from taking the law into their own hands).[7]

[17] Mr Tshikila sought to call in aid reference to an annexure to the replying affidavit suggestive of the fact that the appellant, as spoliator, had been in possession of the goods when the application was being launched. During the debate that ensued, Mr Tshikila, quite correctly in my view, conceded that the mere reference to an annexure in an affidavit without an allegation having been made of the annexure in the affidavit was unavailing. Indeed, it is not open to an applicant or respondent to merely annex to his or her affidavit documentation and to request the court to have regard to the documentation. A litigant must identify the portions of the annexure on which reliance is placed and give an indication of the case which is sought to be made in the affidavit.[8] Nor can it be expected of a litigant to trawl through lengthy annexures to the opponent’s affidavit and speculate on the relevance of facts contained in such annexures.[9]

[18] In Nontuthuzelo Renene v Minister of Safety and Security and another[10] it was held:

“It is well established that in circumstances where it is objectively impossible to restore possession of a

spoliated item (which will be the case when such item is no longer in the hands of a spoliator but in the

possession of a third party) the court will refuse a spoliation order since restoration of the status quo is no longer possible . . .

On this basis alone, the court a quo should not have entertained the appellant’s application but should

have dismissed it.”[11]

[19] Here, too, the Court a quo should not have entertained the respondent’s application in circumstances where it had not been disputed that the appellant was not in possession of the goods when the application was being launched. It should have dismissed the application, and erred in not doing so. This conclusion renders it unnecessary for this Court to decide the other issues ventilated in the heads, save the issue of costs.

[20] The general principle regarding the award of costs is well settled. It is entirely a matter for the discretion of the court, which is to be exercised judicially upon a consideration of the facts of each case, and in essence, it is a matter of fairness to both sides.[12] In De Naamloze Vennootschap Alintex v Von Gerlach[13] the Court, with reference to South African Railways and Harbours v Mills[14] and the authorities therein reviewed, enumerated, as relevant considerations to the granting of the costs of two counsel, the length of the hearing of the argument, the importance of questions of principle or of law involved and the number of authorities quoted.

[21] In my view, this case is far from being complex, relating as it does to an issue capable of easy resolution. As already pointed out, at the hearing, Counsel did not seek to make a mountain out of a molehill, having been content that there was one issue dispositive of the appeal, which is what has eventually come to pass. The papers were not voluminous; two allegations were necessary to prove the respondent’s case[15] and the appellant needed to raise one contention in pursuit of its opposition[16], which it did. One counsel of sufficient seniority and experience could have properly handled the matter on the appellant’s

behalf.[17] I find no justification for allowing the costs of two counsel.

[22] One last aspect regarding costs needs to be considered. The record in this matter is more voluminous than necessary. The production of unnecessarily voluminous papers in a simple application such as the instant one, containing material which is irrelevant for the issues to be determined, places an unnecessary burden on the Court and tends to obfuscate the identification of a relatively easy issue.

[23] Mr Lane submitted that the record of the petition to the Supreme Court of Appeal was relevant to the extent that certain confirmatory affidavits which served before the Court a quo had not been attested, and this was rectified when the petition was drawn. Therefore, so the argument ran, it was necessary to demonstrate to this Court that the confirmatory affidavits had, at some stage, been attested. In the light of the crisp point that fell to be determined in this appeal, the papers that were utilised in the prosecution and the pursuit of the applications for leave to appeal before the Court a quo and the Supreme Court of Appeal were not relevant for the prosecution and pursuit of the appeal; barring the impugned judgment and the relevant order of the Court a quo, and the order of the Supreme Court of Appeal granting leave to appeal, volumes 3 and 4 of the record of the appeal are superfluous. Costs incurred thereby fall to be disallowed.

[24] The following order is made:

(a) The appeal succeeds with costs, such costs to include those of the application for leave to appeal in the Court a quo and the Supreme Court of Appeal, but to exclude those incurred in connection with the compilation of the records in the applications

for leave to appeal brought before those Courts.

(b) The order of the Court a quo is set aside and substituted with the following:

“The application is dismissed with costs”

_______________________________

S M MBENENGE

JUDGE PRESIDENT OF THE HIGH COURT

DAWOOD J:

I agree.

______________

F DAWOOD

JUDGE OF THE HIGH COURT

TOKOTA J:

I agree.

B R TOKOTA

Appellant’s counsel : P Lane SC (with him, R Carvalheira)

Appellant’s attorneys : Pinsent Masons South Africa Inc.

Sandton

C/o J. A. Le Roux Attorneys

Mthatha

Respondent’s counsel : S Tshikila

Respondent’s attorneys : Cliffe Dekker Hofmeyer Inc.

C/o Keightley Sigadla and Nonkonyana Inc.

Date appeal heard

: 11 August 2020

Date judgment delivered

: 01 September 2020

[1] The goods

[2] Joint Venture between Aveng Africa (Pty) Ltd and Stragbag International GmbH v South African National Road Agency (Case No.1195A/19 delivered on 2 July 2019).

[3] Id

[4] United Methodist Church of South Africa v Sokufudumala 1989 (4) SA 1055 at 1058 E – 1059A.

[5] Skjelbreds Rederi A/S and Others v Hartless (Pty) Ltd 1982(2) SA 739 (W) at 742C, cited with approval in MEC for Education, Gauteng Province, and others v Governing Body, Rivonia Primary School and others [2013] ZACC 34; 2013 (6) SA 582 (CC); 2013 (12) BCLR 1365 (CC) at para 93; Absa Bank Ltd v Kernsig 17 (Pty) Ltd [2011] ZASCA 97 (SCA); 2011 (4) SA 492 (SCA); [2011] 4 All SA 113 (SCA) at para 23; Louw and Others v Nel [2010] ZASCA 161; 2011 (2) SA 172 (SCA); [2011] 2 All SA 495 (SCA) at para 17.

[6] LAWSA (2nd Edition) at para 109(c).

[7] Jivan v National Housing Commission 1977 (3) SA 890 (W) at 896 C and Builder’s Depot CC v Testa 2011 (4) SA 486 (GSJ) at paras 15 – 17.

[8] Swissborough Diamond Mines (Pty) Ltd v Government of the Republic of South Africa 1999 (2) SA 279 (T) at 324 F – G.

[9] Minister of Land Affairs and Agriculture and Others v D & F Wevell Trust 2008 (2) SA 184 (SCA) at 200E.

[10] Nontuthuzelo Renene v Minister of Safety and Security and another 2005 JDR 0449 (Tk) at 3-4.

[11] Also see Raik v Raik 1993 (2) SA 617 (W) at 622C, Bank van die Orange Vrystaat v Rossouw 1984 (2) SA 644 (C) and Lawsa vol 27 (first re-issue) at paras 192, 271 and the authorities set out in footnote 18 thereto.

[12] Graham v Odendaal 1972 (2) SA 611 (A) at 616A; Cilliers, Law of Costs at 2.03-2.05.

[13] De Naamloze Vennootschap Alintex v Von Gerlach 1958 (1) SA 13 (T).

[14] South African Railways and Harbours v Mills 1924 CPD 110.

[15] Namely, that (a) the respondent was in peaceful and undisturbed possession of the goods and (b) that the appellant forcefully and unlawfully deprived it of such possession.

[16] Namely, that it was not in possession of the goods in question when the application before the Court a quo was being launched.

[17] Cf Mafongosi and Others v United Democratic Movement [2003] 1 All SA 441 (TK) 452; Wanderers Club v Boyes-Moffat [2011] JOL 27764 (GSJ), 2012 (3) SA 641 (GSJ).