K2017427913 South Africa (Pty) Ltd v Du Plessis (CIV APP FB 24/2022;UM223/2021) [2023] ZANWHC 115 (3 August 2023)

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 NO: CIV APP FB 24/2022

UM223/2021

Reportable: YES / NO

Circulate to Judges:

YES / NO

Circulate to Magistrates:

YES / NO

Circulate to Regional Magistrates: YES / NO

In the matter between:

K2017427913 SOUTH AFRICA (PTY) LTD

Appellant

And

GIDEON JAKOBUS DU PLESSIS

Respondent

Coram: DJAJE DJP; MFENYANA J & REDDY AJ

Heard: 09 JUNE 2023

Delivered: This judgment is handed down electronically by circulation to the parties through their legal representatives’ email addresses. The date for the hand-down is deemed to be 03 AUGUST 2023.

ORDER

The following order is made:

1. The appeal is upheld

2. The order of the court a quo is set aside and replaced with the following order:

“The application is dismissed with costs”

3. The respondent is ordered to pay the costs of this appeal including costs of the leave to appeal.

JUDGEMENT

DJAJE DJP et MFENYANA J & REDDY AJ

[1] This is an appeal against the whole judgment of Snyman J on spoliatory relief whether the requirements of spoliation had been satisfied by the respondent. The court a quo found that there was spoliation and ordered as follows:

“i) The non-compliance with the forms, method of service provided for in the Uniform Rules of Court is condoned and the matter is heard as one of urgency in terms of Rule 6(12) of the Uniform Rules of Court;

ii) The Respondent is ordered to immediately deliver, or cause to be delivered, the item listed below to the Applicant at his address at 18 Ash Crescent, Wavecrest, Jeffrey’s Bay, Eastern Cape;

iii.i) Hino Profia Special Vehicle which bears vehicle register number D[...] and Vehicle Identification Number (VIN) A[...] with engine number E[...]; and

iii.ii) Doosan Compressor and trailer which was unlawfully removed from 1[...] S[...] Road, Markam, Port Elizabeth, Eastern Cape, on Friday 17 September 2021.

iv) In the event of the Respondent failing to deliver the property forthwith, that the Sheriff, or his nominee, be authorized and directed to take possession of the property and to deliver same to the Applicant;

v) In the event that the Respondent unlawfully and without good reason refuses the Sheriff access to the premises at which the property is located, that the Sheriff be permitted to enlist the assistance of the South African Police Services and a locksmith, the cost of which will be costs in the execution for the Respondent’s account;

vi) That the Respondent is ordered to pay the costs of this application, which include the transportation or haulage of the property back to the Applicant, to be taxed on an attorney and client scale.

vii) The costs of the application is to be costs in the winding-up of the respondent.”

[2] The facts in this matter can be summarized as follows: The appellant and the respondent concluded a written purchase and sale agreement for the following properties: Hino Profia Special Vehicle (“the rig”) which bears vehicle register number D[...] and a Doosan Compressor (“the compressor”). As there was a dispute over payment by the respondent, the appellant requested the respondent to bring the properties for inspection at a specified address. Before the property was brought for inspection, the respondent was in peaceful and undisturbed possession. The respondent had been assured that the rig and compressor would not leave the premises where the inspection was to take place.

[3] The respondent ensured that the rig and compressor were delivered for inspection as requested. On arrival at the premises as agreed with the appellant, the respondent remained with the properties and there were no technicians to inspect the rig and compressor. There was a security company that arrived at the premises to guard the rig and

compressor. The respondent and his attorney were then requested to leave the premises. At 17h25, the respondent and his attorney left. Notably, it was observed that representatives of the appellant were in the immediate vicinity of the premises where the rig and compressor were left, behaving in a peculiar fashion.

[4] The respondent in the main application alleges that there was an act of spoliation by the appellant as follows:

“THE ACT OF DESPOLIATION

[18] At 23:19 on Friday 17.09.2021, the rig’s ignition was switched on. Shortly thereafter, the rig began to move.

[19] On the discovery that the rig was moving, I immediately contacted my attorney. My attorney wrote an email on Saturday morning 18.09.2021 at 04:09 and addressed it to attorney Van der Veen and attorney Erlank. A true copy of the email is attached hereto and marked Annexure “G3”.

[20] I reported the rig and compressor as being stolen and alerted Tracker. Tracker and the police managed to stop the rig at around 04:00 just outside Cradock. I am advised by the police at Cradock that the rig was not roadworthy; that the compressor and trailer didn’t have papers, VIN and chassis numbers and data-plates. Members of the SAPS impounded both the rig and the compressor.

[21] However, on Sunday 19.09.2021, I was advised by the warrant officer that in fact the rig and compressor were released back to the Respondent. I cannot understand how the compressor was released back to the Respondent by members of SAPS, especially since proof of ownership cannot be proven by the Respondent. The compressor and trailer is Doosan model. However, the certificate of registration to the compressor, which I presume was provided to members of SAPS, reflects the compressor as being an Atlas model. A true copy of the proof of registration is attached hereto and marked Annexure “G4”.

[22] It is my respectful submission that the Respondent unlawfully deprived me of possession of both the rig and compressor by means of trickery and chicanery.”

[5] As a result the respondent brought an urgent application for spoliation against the appellant and the order as stated above was granted. When the urgent application was served on the appellant, they elected not to file an answering affidavit and only served a notice in terms of Rule 6(5)(d)(iii) of the Uniform Rules of Court.

[6] The appellant now appeals the decision of the court a quo and raised the following grounds of appeal:

Grounds of Appeal

1. The Court a quo erred by finding that the points in limine raised by the Appellant relating to possession and deprivation of possession could not be raised in terms of the said Rule under circumstances where:

1.1 the Appellant, being faced by an incomplete cause of action, could raise incomplete cause of action as a question of law in terms in terms of Rule 6 (5)(d)(iii);

1.2 lack of possession and deprivation of possession ex facie the founding papers, being elements of the cause of action in a spoliation

application, could accordingly be raised as a question of law of Rule 6(5)(d)(iii);

1.3 the notice delivered by the Appellant clearly referred to its notice of its intention to raise certain questions of law alternatively points in limine, the latter not being confined to questions of law, but including questions on fact which could be determined solely with reference to the allegations made by the Respondent in his founding papers, and more specifically whether he had made out a case for spoliatory relief on the basis of the allegations made by him.

2. The Court a quo erred by finding that the Respondent did have undisturbed possession of the property before he was spoliated. The Court a quo failed to enquire whether the effective physical control over or possession of the property had not been lost by the Respondent when he left the property on the premises, which enquiry was necessary in order to determine whether the Respondent had indeed been spoilated. Had the Court a quo enquired into this aspect it would and should have found that the Respondent, on his own version, had lost effective physical control over, or possession of the property at the material stage, which control or possession was a requirement for spoliatory relief to be granted to him. The Appellant’s point in limine in this regard should accordingly have been upheld by the Court a quo.

3. The Court a quo erred by finding that the Respondent’s possession of the property had been disturbed by the Appellant. The Court a quo failed to appreciate that there was no factual allegation in the Respondent’s founding papers to the effect that the Appellant removed the property from the premises where it was kept. The Court a quo accordingly should have found that the Respondent had failed to establish the second requirement for spoliatory relief, namely unlawful deprivation of possession by the Appellant. The Appellant’s point in limine in this regard should accordingly have been upheld by the Court a quo.

4. The Court a quo erred by finding that the Respondent is entitled to the order sought by him and by not dismissing the application with costs.

5. The Court a quo erred by ordering the Appellant to pay costs on an attorney and client scale against the Appellant under circumstances

where such a punitive costs order was not warranted and/or motivated by the Court a quo. The Court a quo accordingly committed a material misdirection in awarding costs on an attorney and client scale against the Appellant under circumstances where there were no extraordinary or exceptional circumstances warranting the award of costs on such a scale.”

[7] As stated above the appellant elected not to file an answering affidavit but relied on the facts outlined in the founding affidavit by the respondent. The notice in terms of Rule 6(5)(d)(iii) by the appellant raised the following points in limine:

“1. There was no alternatively no proper service of the application on the Respondent.

2. The application is not urgent alternatively is urgency self-created.

4. The Applicant was not at the time of the alleged dispossession in possession of the items listed in the Notice of Motion, which

possession was required for purposes of spoliatory relief.

4. The Applicant has not made out a case in its founding papers for deprivation of possession of the items listed in the Notice of Motion by the Respondent was required for purposes of spoliatory relief against the Respondent.”

[8] In dismissing the points in limine the court a quo made the following findings:

“13. Rule 6(5)(d)(iii) relates to question of law, and not to questions of fact. To determine whether there was possession and deprivation of property are questions of fact which cannot be raised in terms of Rule 6(5)(d)(iii). The points could accordingly not be upheld in terms of Rule 6(5)(d)(iii);

30. the Respondent did have undisturbed possession of the property before it was spoliated. The Appellant cunningly deprived the Respondent of temporary possession under the guise that the Appellant intends to inspect the property. The Appellant cannot be said to have had possession of the property where the facts before Court indicated that the property was left by the Respondent at the request of the Appellant.

31. the Respondent has proven that he had undisturbed possession of the property prior to spoliation and his possession had been disturbed by the Appellant.

32. having met the requirements of the mandament van spolie the Respondent was entitled to be granted the order as sought;

33. there was no reason to deviate from normal costs order that costs should follow the results.”

[9] It is settled law that in motion proceedings there are normally three sets of affidavits. In terms of Rule 6(5) (e) of the Uniform Rules of Court, the court may in its discretion permit the filing of further affidavits. In motion proceedings the affidavits constitute both the pleadings and the evidence and the issues and averments in support of the parties’ cases should appear clearly therefrom. See: Minister of Land Affairs and Agriculture v D & F Wevell Trust 2008 (2) SA 184 (SCA) at 200D.

[10] There is no underscoring that an applicant must make out its case in the founding affidavit. This legal requirement evinces that an applicant must provide adequate primary facts underpinned by relevant legal principles to find favor with the court.

[11] In Director of Hospital Services v Mistry 1979 (1) SA 626 (A) at 635H-636B it was held that:

“When, as in this case, the proceedings are launched by way of notice of motion, it is to the founding affidavit which a Judge will look to determine what the complaint is … and as has been said in many other cases: “… an applicant must stand or fall by his petition and the facts alleged therein and that, although sometimes it is permissible to supplement the allegations contained in the petition, still the main foundation of the application is the allegation of facts stated therein, because those are the facts which the respondent is called upon either to affirm or deny”

[12] As a consequence of the absence of other affidavits before the court a quo, but for the founding affidavit it serves no moment to embark on enquiry on the legality and evidential weight of consequential affidavits.

[13] Holding an applicant to its founding affidavit is not pedantry. It promotes legal certainty and uniformity. In South African Transport and Allied Workers Union and another v Garvas and others 2013 (1) SA 83 (CC) para 114 it was held as follows:

“Holding parties to pleadings is not pedantry. It is an integral part of the principle of legal certainty which is an element of the rule of law, one of the values on which our Constitution is founded. Every party contemplating a constitutional challenge should know the requirements it needs to satisfy and every other party likely to be affected by the relief sought must know precisely the case it is expected to meet.”

[14] It is against this legal backdrop that in this matter we should consider, whether the largely incontestable factual matrix as set out by the respondent in the founding affidavit passed muster of proving on a balance of probability the two salient requirements for spoliatory relief. The premise on which the foundational facts are presented remains the central point of the respondent’s cause of action.

Submissions by Appellant

[15] Counsel for the appellant, contended that the merits of the application should not have detained the court a quo as the points in limine should have been upheld and that axiomatically would have been dispositive of the entire application. It was argued that on the facts presented by the respondent, which underpinned the relief sought, the respondent was not in possession of the rig and compressor at the time of dispossession as he left the rig and compressor at the premises. He was thus not in physical possession.

[16] It was submitted that there is no factual allegation that the appellant removed the rig and compressor from the premises where they were kept. It was argued that the respondent in an email sent to the appellant’s attorney stated as follows: “We are not sure who has removed the rig and compressor and can only assume at his (sic) been stolen, we have reported it stolen in order to protect both clients’ interests”. The appellant’s case was that the email by the respondent was proof that the person who removed the rig and compressor from where the respondent left them, was unknown. As such no case was made out for spoliation by the appellant.

Submissions by Respondent

[17] Advocate Masike on behalf of the respondent argued that after the property was handed to the appellant by the police, it should have been returned to the respondent. Failure by the appellant to return the property to the respondent amounted to dispossessing the respondent of the property by the appellant. In his heads the following was submitted:

“3.12. The Applicant has not denied that it is in possession of the, the Applicant has not denied that its attorneys had given an undertaking that the Applicant “merely intends to conduct an inspection and does not [on 17 September 2021] intend to take delivery of the rig and compressor.”

3.13. The Applicant has not returned the property to the Respondent despite the undertaking that was made to return the property on the

18th. We submit the failure to honor the undertaking to return the property to the Respondent amounts to dispossessing the Respondent of the property.”

[18] Vis-à-vis the question of possession, it was contended on behalf of the respondent that the spoliation remedy may be granted in circumstances in which the property is no longer in the possession of the spoliator but is held by a third party. To reinforce the latter submission reference was made to Malan v Dippenaar 1969(2) SA 59(O) at 65G-66A. Regarding the act of spoliation, it was contended that the appellant was either the spoliator or the third party. Counsel argued that the respondent never intended to give up possession of the property but only left it at the premises for purposes of being inspected by the appellant.

The Law and Analysis

[19] The law on spoliation is trite. In Nino Bonino v De Lange, 1906 TS 120 at 122, Innes CJ explained the nature of spoliation: “[S]poliation is any illicit deprivation of another of the right of possession which he has, whether in regard to movable or immovable property or even in regard to a legal right.” The remedy is a possessory suit based on the maxim spoliatus ante omnia restituendus est. In its simplest form, this means that possession must be restored to the dispossessed.

See: Hano Trading CC v JR 209 Investments (Pty) Ltd 2013 (1) SA 161 (SCA); James Brown & Hammer (Pty) (Previously named Gilbert Hamer & Co Ltd) Ltd v Simmons, NO 1963 (4) (SA) 656 at 660E-G.

[20] Although a number of different possessory remedies existed in Roman-Dutch law (the mandament van complainte (which had its origin in Anglo-Norman law), the mandament van maintenue (which had its origin in medieval Italian law) and the mandament van spolie (which had its origin in canon law), only one of these has been received into modern South African law, namely the mandament van spolie. (See: Kleyn “Possession” in Zimmermann and Visser Southern Cross: Civil Law and Common Law in South Africa 1996 at 820).

[21] Spoliatory relief is predominantly founded on application, although it is not unusual that a litigant may favour action proceedings. Fleshing out the intricacies, of spoliatory relief, it is incumbent on an applicant to simply prove that he or she was in possession of the thing and that he or she was unlawfully dispossessed or despoiled (See: Nino Bonino v De Lange 1906 TS 120, Yeko v Qana 1973 4 SA 735 (A) 739).

[22] In the Law of South Africa (LAWSA) Vol 27 par 94 it is stated that the spoliation order or mandament van spolie is available where:

"(a) a person has been deprived unlawfully of the whole or part of his or her possession of movables or immovable;

(b) a joint possessor has been deprived unlawfully of his or her co­ possession by his or her partner taking over exclusive control of the thing held in joint possession;

(c) a person has been deprived unlawfully of his or her quasi-possession of a servitutal right;

(d) a person has been deprived unlawfully of his or her quasi-possession of other incorporeal rights.

In case (c) and (d) the courts have warned that the application of the spoliation principles to incorporeal rights require closer investigation and subtler treatment and that one must distinguish carefully between rights incidental to the quasi-possession of the right and a mere right to claim specific performance of a contractual or statutory obligation. Illicit deprivation of possession in any of the ways mentioned above is termed spoliation. "

[23] In Ivanov v North West Gambling and Others 2012 (6) SA 67 (SCA) it was held that: "Spoliation is the wrongful deprivation of another's right of possession. The aim of spoliation is to prevent self-help. It seeks to prevent people from taking the law into their own hands. An applicant upon proof of two requirements is entitled to a mandament van spolie restoring the status quo ante. The first is proof that the applicant was in possession of the spoliated thing. The cause for possession is irrelevant - that is why a thief is protected. The second is the wrongful deprivation of possession. The fact that possession is wrongful or illegal is irrelevant, as that would go to the merits of the dispute.”

in South Africa (1996) 818 821).

TSAR 2015

The mandament van spolie, therefore, is the only true possessory remedy that exists in South African law today (see Kleyn 820).

mandament van spolie (which had its origin in canon law)), only one of these has been received into modern South African law, namely the mandament van spolie.

The mandament van spolie, therefore, is the only true possessory remedy that exists in South African law today (see Kleyn 82Discussion

Was the respondent in possession?

[24] In De Beer v Zimbali Estate Management Association (Pty) Ltd and Another 2007 (3) SA 254(N) at par 54 the court dealt with mandament van spolie and found that “A summary of the above cases would seem to me to indicate that the mandament is there to protect possession not access. Such possession must be exclusive in the sense of being to the exclusion of others. The possession of keys, by a multiplicity of parties, waters down the possession and, in the present case, it becomes so dilute that it ceases to be the sort of possession that is required to achieve the protection of the mandament. It must be recalled that the real purpose of the mandament was to prevent breaches of the peace. If someone is in exclusive possession and exercises such possession, then deprivation thereof can, and often does, lead to a breach of the peace. No such breach would, in the ordinary course of events, take place, where a large number of persons have access, rather than possession, of the property in question.”

[25] The respondent stated in the founding affidavit that the property was delivered at the premises and he left after the owner assured him that the property will not leave the premises. He effectively lost physical control of the property when he left the property at the premises. It was only the owner of the premises who had the keys and access. The respondent would require assistance of the owner of the premises to resume control over the property. The respondent would require access first to the premises to be in the possession of the property. The element of possession falls off.

Was there an act of spoliation by the appellant?

[26] On being requested to leave the premises where the rig and compressor was left, it was correctly conceded by counsel for the respondent, that the identity of the individual/s who had been instrumental in the removal of the rig and compressor was unknown. What the respondent argued was that when the rig and compressor were handed over by the police on Sunday to the appellant, the appellant had by means of “trickery and chicanery deprived the respondent of possession of both the rig and compressor”. There is however no evidence of a nexus between the removal of the rig and compressor from the premises whereat it was left, and the appellant. Consequently, there was no act of spoliation committed by the appellant.

[27] The points in limine that were raised by the appellant on whether there was possession at the time of the alleged dispossession deal with the requirements of mandament van spolie. As stated in Ivanov above, there are two requirements for spoliation. These are points that deal with the law and were correctly raised as points of law by the appellant in the notice in terms of Rule 6(5)(d)(iii). These should have been upheld and the application dismissed on those bases.

Costs

[28] It is trite that costs should follow the result. I see no reason why the respondent should not be ordered to pay the costs of this appeal including the costs of the leave to appeal.

Order

[29] Consequently, the following order is made:

3. The respondent is ordered to pay the costs of this appeal including costs of the leave to appeal.

J T DJAJE

DEPUTY JUDGE PRESIDENT

NORTH WEST HIGH COURT

I agree

S MFENYANA

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION

A REDDY

ACTING JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING: 09 JUNE 2023 JUDGMENT RESERVED: 09 JUNE 2023 DATE OF JUDGMENT: 03 AUGUST 2023 COUNSEL FOR THE APPELLANT: ADV R GRUNDLING COUNSEL FOR THE RESPONDENT: ADV T MASIKE