Pinzon Traders 8 (Pty) Ltd v Clublink (Pty) Ltd and Another (2354/2009) [2009] ZAECGHC 40; 2010 (1) SA 506 (ECG) (29 June 2009)

FORM A

FILING SHEET FOR EASTERN CAPE HIGH COURT, GRAHAMSTOWN JUDGMENT

ECJ:

PARTIES: PINZON TRADERS 8 (PTY) LIMITED

And

CLUBLINK (PTY) LIMITED

MAKANA MUNICIPALITY

Registrar: 2354/09

Magistrate:

High Court: EASTERN CAPE HIGH COURT, GRAHAMSTOWN

DATE HEARD: 25/06/09

DATE DELIVERED: 29/06/09

JUDGE(S): JONES J

LEGAL REPRESENTATIVES –

Appearances:

for the Applicant(s): ADV: E.A.S. Ford SC & ADV: De La Harpe

for the Respondent(s): ADV: M.J. Lowe

Instructing attorneys:

for the Applicant(s): NETTELTONS ATTORNEYS

for the Respondent(s): WHEELDON RUSHMERE & COLE ATTORNEYS

CASE INFORMATION -

Nature of proceedings : SPOLIATION

Reportable

THE HIGH COURT OF SOUTH AFRICA

In the Eastern Cape Division Case No 2354/2009

Grahamstown

In the matter between

PINZON TRADERS 8 (PTY) LIMITED Applicant

and

CLUBLINK (PTY) LIMITED 1st Respondent

MAKANA MUNICIPALITY 2nd Respondent

Summary Spoliation – landlord restricting access to an entrance in a shopping complex parking area so that only light delivery vehicles could proceed through it to a loading area for use by a supermarket – previously, larger refrigeration trucks had used the loading area to deliver goods to the supermarket – held the supermarket (the tenant) had possession of the loading area and the access road to it for the purposes of the mandament van spolie – a spoliation order was granted.

JUDGMENT

JONES J

[1] The 1st respondent is the developer and owner of an upmarket shopping complex in Grahamstown known as Peppergrove Mall. Its anchor tenant is the applicant, which operates a large supermarket at Peppergrove Mall under the Pick 'n Pay franchise. The contractual relationship between the parties is governed by a written agreement of lease and a written addendum to it which were both dated 23 September 2003. These documents were in replacement of an original lease dated 14 July 1997. The lease and, in particular, the addendum, were preparatory to and made provision for future large scale extensions of and renovations to the supermarket premises to meet Pick 'n Pay’s requirements. These renovations were completed in October 2007. They included new butchery, bakery and delicatessen sections

with the necessary refrigeration and cold rooms adjacent to them. They also included an additional loading bay in close proximity to the new refrigeration rooms and the butchery, access to which was to be gained from Allen Street on the western side of the shopping centre. This loading bay was designed for use by the supermarket. It was part of a new parking area, access to which was gained by a 5.4 metre wide entrance off Allen Street. It was the applicant’s intention to use this loading area inter alia to receive meat deliveries conveyed in 8 ton refrigeration trucks capable of conveying bulk frozen carcases, and trucks capable of delivering considerable quantities of flour – as much as 5000 kgs or more at a time – to the bakery. There had been no loading bay dedicated for use by the supermarket in that part of the shopping complex before, but there were, and still are, other large loading areas designed for its use elsewhere. These are in African Street on the northern edge of Peppergrove Mall. They pre-existed the new extensions and they have the capacity for deliveries by large 22 ton trucks. These loading areas are a distance from the new refrigeration rooms and butchery.

[2] The applicant’s use of the new loading bay off Allen Street gave rise to the dispute which has led to this litigation. The Allen Street parking area was also used by the tenants of a series of offices which were built at about the same time of the Supermarket’s

extensions and which had been let to professional business firms. These tenants complained about inconvenience to them and their

clients caused by deliveries made via the Allen Street loading bay. To placate these tenants the 1st respondent took steps to place a limit on the size of the vehicles making deliveries. The applicant’s attitude, however, was that it has a contractual right to use the loading bay, inter alia, for receiving bulk deliveries of meat and flour by vehicles with a capacity of 8 tons. The respondent denied such a right and maintained that the applicant’s use of the new loading area was confined to delivery by means of light delivery vehicles with a capacity of no more than 2 tons. The applicant countered with the argument that it was impossible for its meat and flour requirements to be met by deliveries made in light delivery vehicles, and, further, that it would be in breach of health regulations if its meat deliveries were made at the African Street loading bays because of their lack of proximity to the new refrigeration rooms. Despite correspondence and a number of meetings (the most important of which appears to have been a meeting on 29 March 2009) the parties were unable to resolve these differences. The upshot was that in about late April or early May 2009 the respondent built a wall across part of the entrance to the Allen Street parking area, with the result that its width was reduced from 5.4 metres to 4.2 metres. The applicant did not make an issue of this at the time because the entrance of 4.2 metres was sufficient to permit entrance by 8 ton refrigeration trucks and the trucks making bulk flour deliveries. Then, on 1 June 2009, the respondent built another wall on the other side of the entrance reducing its size from 4.2 metres to 3.6 metres. This had the practical effect of permitting only light delivery vehicles of 2 tons or less to get through the entrance. The applicant made immediate objection, (a) recording that the unilateral restriction of access to the loading bay was unlawful, adverse to the applicant’s ability to trade efficiently, and caused prejudice, and (b) demanding that the status quo ante be restored, failing which the courts would be approached. The 1st respondent replied that it relied upon an oral agreement limiting the utilization of the access off Allen Street to light delivery vehicles and no others,1 that the wall had been constructed with the intention of preventing the applicant from utilizing access through that entrance by heavy duty vehicles, and that its attorneys would accept service of process.

[3] The applicant considered that it was in a serious predicament. It had been physically prevented from using the Allen Street loading bay for its meat deliveries, and it feared that it would be in breach of municipal health regulations if its meat was delivered through the African Street loading bays.2 The result was that the applicant brought urgent proceedings on notice of motion for a spoliation order requiring the respondent to remove the walls to the entrance to the Allen Street parking area. In the alternative, it sought an urgent interdict requiring the removal of the walls and prohibiting the respondent from interfering with his access through the entrance to the Allen Street parking area, with a further alternative for an urgent interim interdict pending the institution of action proceedings if a final interdict could not be granted on the papers by reason of a dispute of fact. The application was opposed. The 2nd respondent is the municipality, which was joined because of its potential interest in the proceedings. No relief was sought against

the 2nd respondent and it has chosen not to participate.

[4] The 1st respondent opposed the relief, inter alia on the ground that no proper grounds of urgency have been shown. In my view, however, there are justifiable commercial and procedural grounds of urgency to warrant a departure from the time periods and ordinary procedures laid down by the rules of court. I shall accordingly proceed to deal with the merits rather than postpone the matter. Before I do so I should refer to a preliminary application to strike out allegations in the 1st respondent’s papers on grounds of inadmissibility. By agreement, the parties proceeded with argument on the merits as well as the striking out application, and I deferred a decision on the admissibility issues until the conclusion of all the arguments. It turns out, in my view, to be unnecessary to go into the admissibility of the disputed evidence. I am able to determine the dispute without reference to it, and even if I have regard to it, it does bear sufficiently on the issues to make any difference. I do not believe that the applicant is prejudiced in the conduct of these proceedings if the allegations which it regards as objectionable are allowed to remain in the papers.

[5] The main thrust of the applicant’s case is that it is entitled to relief under the mandament van spolie. The mandament applies where a right to possess property is disputed and possession of the property is disturbed without process of law. In that event the person formerly in possession is entitled to an order restoring possession immediately, before the dispute about the right is adjudicated upon. The status quo must be restored before all else. To succeed, an applicant for a spoliation order must prove

that he or she was in de facto possession of the property (which includes physical possession of movable and immovable property, and, in the case of incorporeal property, the physical exercise or enjoyment of the right in question which is sometimes called quasi-possession and which I shall include under the general concept of possession for purposes of this judgment); and

that he or she has been despoiled of that possession without recourse to the courts and hence without lawful authority.

It is not necessary to establish a right to possession, or full legal possession as opposed to actual physical possession, or exclusive

possession, or the total deprivation of possession where partial deprivation amounts to spoliation. The remedy is confined to the

protection of possession, which is a right in property, and is not to be extended to the protection of personal rights. All of this is well established. See Nino Bonino v De Lange 1906 TS 120; Nienaber v Stuckey 1946 AD 1049; Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi 1989 (1) SA 508 (AD); Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA); ATM Solutions (Pty) Ltd v Olkru Handelaars CC 2008 (2) SA 496 (SCA); Firstrand Ltd t/a Rand Merchant Bank v Scholtz NO 2008 (2) SA 503 (SCA) 509.

[6] The question is whether the applicant has discharged the onus of proving on a balance of probability that it was in possession of property and that it has been wrongfully deprived of possession. Because these proceedings are on notice of motion, I am bound to use the fact finding process set out in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A). There is no dispute that the applicant was at all times in physical possession of the property which it leased from the 1st respondent and upon which it conducted the business of its supermarket. This included the bakery, the butchery, the cold rooms,

the refrigerator rooms and the areas where delivered goods are received within the supermarket premises. There can also be no dispute that the applicant made full use of the loading bays in African and Allen Streets where deliveries were made and where the

goods delivered were then placed in the reception areas adjacent to them. Indeed, no other person had any business using the loading bays for their intended purpose as loading bays. Similarly, there can be no dispute that the applicant made full use of the access from African and Allen Streets to the loading bays. As I see it, the applicant’s use of the loading bays and the access to the loading bays was so closely connected with its use and possession of the rest of the supermarket that the inference is irresistible that it was part and parcel of that possession. Use of and access to the loading bay was no different from use of and access to the refrigeration rooms, the butchery and those sections of the supermarket where the meat is displayed to customers. They were all possessed by the applicant.

[7] The argument on behalf of the 1st respondent is that the applicant’s use of and access to the loading bay is not an incident of its possession of the supermarket, but was an entirely separate contractual right which cannot be enforced by a spoliation order. The 1st respondent relies on the judgment in Shoprite Checkers Ltd v Pangbourne Properties Ltd 1994 (1) SA 616 (W) where the applicant was also the tenant of a supermarket in a shopping complex. The lease gave the supermarket and its clients’

access to the parking lot in the complex. The owner of the shopping complex did construction work in the parking lot which interfered

with their access. An application for a spoliation order to protect the supermarket’s access failed. Zulman J, as he then was, held at 622 C-E that ‘[t]he mere fact that the applicant might or might not have had a right, derived from a contract which it entered into with the respondent, to make use of the parking area in question, including the parking bays to be found in the designated area, did not, in my view, amount to a 'possession', as envisaged in the authorities, of such designated area for the purposes of establishing an entitlement to the mandament van spolie’. That was a correct statement as applied to the facts of that case. Here, the applicant does not contend that it was in possession of the parking bays in the Allen Street parking area. If it had done so it would have failed. Its contention was that on the facts it was in possession of a specific area of the parking area, namely the loading bay, which it used for the essential purposes of receiving deliveries. This was the only loading bay in that parking lot. It was specially designated for the supermarket and the supermarket alone. It was used specifically as part of the supermarket premises, which it unquestionably possessed. Access to the loading bays from their entrances was an essential ingredient of the applicant’s possession of the supermarket without which it could not conduct its business, and it can only have been part of that possession. In my view these facts dispose of Mr Lowe’s argument that, as in De Beer v Zimbali Estate Management Association (Pty) Ltd 2007 (3) SA 254 (N), the element of access can, in this case, be severed from possession. Patently, it cannot. Access to the Allen Street loading bay through the parking lot and its entrance was inextricably and inseparably connected with possession of the loading bay and the

premises of the supermarket beyond it. This was much the same as was access through the gate in Nienaber v Stuckey supra. There, access was in effect regarded as a necessary incident of the applicant’s possession of the lands beyond the gate. The facts in Nienaber v Stuckey bear a close resemblance to the facts in this case: the applicant’s possession was based on a contractual right to plough the lands; a necessary ingredient of that possession was access to the lands through the gate; the applicant’s possession was not continuous or exclusive, and alternative access was available. The Appeal Court held that denial of access through the gate, previously enjoyed by the applicant, amounted to an unlawful deprivation of possession for the purposes of a spoliation order. Mr Ford argued, correctly in my opinion, that this authority is strong support for the applicant’s contention that narrowing the entrance off Allen Street was an unlawful deprivation of possession.

[8] There is a dispute in the papers about whether the applicant initially used the Allen Street loading bay for deliveries by light delivery vehicle only. The applicant’s case was that it was used by refrigeration trucks from the beginning; other deponents suggested that at first light delivery vehicles only were used. Whatever the position might have been in the beginning, the evidence is not only overwhelming but also common cause that deliveries were made there by vehicles larger than light delivery vehicles, so much so that there were ongoing complaints and a bitter dispute about it. The applicant’s case was, furthermore, corroborated by the letter written on behalf of the 1st respondent which stated that the walls had been constructed with the intention of preventing the applicant from utilizing access by heavy duty vehicles. If that is so, it hardly lies in the mouth of the 1st respondent to suggest that the applicant did not use what it described as heavy duty vehicles. The same letter defeats a suggested

argument that the partial restriction of the entrance brought about by the walls was not a sufficient limitation of access to amount to a deprivation of possession. How can that be so, if the intention was to prevent the access previously exercised? I am quite satisfied that there is no genuine dispute of fact on the papers within the meaning of the Plascon-Evans Paints Ltd case which could possibly justify a refusal of relief.

[9] My conclusion is that the applicant has discharged the onus of proving the existence of the requirements for a spoliation order. The relief in the notice of motion ordering the removal of the walls must be granted.

[10] This conclusion makes it unnecessary for me to consider whether or not the applicant has proved a clear contractual right, alternatively a clear right based on the 1st respondent’s breach of statutory obligations rendering the construction of the walls illegal, which entitles it to the relief of a final interdict. This is, perhaps, just as well from the point of urgency. A proper consideration of the issues and side issues on the interdict question would have involved considerable time, analysis, and possible delay. As it is, the parties now have the benefit of a speedy judgment in a matter of urgency. My prima facie conclusion is that, while I think there may be merit in Mr Ford’s argument that I could decide the interdict on the papers and that I could disregard so-called disputes of fact as totally confused and insufficiently formulated, it would not be proper to do so in the light of certain deeply contested credibility issues.

[11] This leaves the alternative of an interim interdict. In my view the applicant has discharged the much less exacting onus of proving, on an acceptance of the facts alleged in its papers read with the facts in the 1st respondent’s papers which the applicant cannot dispute

that it has a prima facie right though open to some doubt (LF Boshoff Investments (Pty) Ltd v Cape Town Municipality 1969 (2) SA 256 (C) 267B-F); and that the case put up by the 1st respondent was not such as to convert ‘some doubt’ into serious doubt (Simon NO v Air Operations of Europe AB and others [1998] ZASCA 79; 1999 (1) SA 217 (SCA) at 228G-H).

The requirements of a spoliation order are different from those of an interim interdict. But the background facts relating to the

applicant’s possession and use of the Allen Street loading bay, which have been discussed above, are relevant evidence of the prima facie right for which the applicant contends for an interim interdict. The common cause facts, the express terms of the agreement of lease and the addendum, and the residual consequences and implied (residual) terms arising from the common law in respect of which the written agreement is silent establish, in my opinion, a prima facie contractual right to use the property leased for the purpose for which it was leased. On background facts which are common cause or indisputable, this includes a prima facie right to the use of and access to all the loading bays for the delivery of goods to the supermarket, including the Allen Street

loading bay. The denial of this right and the suggestion that the written lease contains a tacit term limiting the use of the Allen

Street loading bay can do no more than raise some doubt about the prima facie right. It is quite insufficient to place it under considerable or serious doubt. Similarly with the right based on contraventions of the building and zoning legislation and regulations, the admission by the 1st respondent that the walls were built without approval or authority is sufficient for a prima facie right even if it may be open to some doubt, and the arguments based on a rule of practice doing away with permission in the case of boundary walls and on how the regulations should be applied are insufficient to throw serious doubt on the prima facie right. In my view, there was no serious attempt to argue on these papers that the applicant has an alternative remedy, or that the balance of convenience and the incidence of prejudice are not in its favour. It seems to me to speak for itself that the applicant will suffer irreparable harm if it is precluded from using the Allen Street loading area while the parties go to trial to establish whether the prima facie rights harden into rights which are proved on a balance of probability. In the result I would make an order in terms of paragraphs 5.1 (including 5.1.1 and 5.1.2) of the notice of motion, and I would order the costs of this application to stand over for determination by the trial court, were it not for the spoliation order which I propose making.

[12] I should record that at the commencement of argument Mr Ford made a tender in open court that in the event of the application succeeding and the 1st respondent being obliged to demolish the walls ante omnia, and it subsequently turning out that the 1st respondent was, after all, entitled to construct the walls, the applicant will bear the full costs of re-erecting the walls. This

litigation was conducted on the basis of that tender.

[13] There will be the following order:

The application succeeds with costs, which shall include the costs of two counsel. An order will issue that the 1st respondent is obliged to demolish the whole of such portion of the walls constructed by it on the boundary of the Peppergrove Mall adjacent to the entrance or gateway providing vehicular access off Allen Street, Grahamstown, to the loading area of the premises let by the 1st respondent to the applicant so as to reinstate the access to a width of not less than 5 metres.

RJW JONES

Judge of the High Court

27 June 2009

1 The applicant denied any oral agreement, and denied further that the 1st respondent was entitled in law to rely on an oral agreement. The papers make a number of references to the oral agreement, but the 1st respondent did not rely upon it in argument before me. It is no longer an issue in the case and need not detain me further for the purposes of this judgment.

2 This fear has become a reality. The Municipality have now warned the applicant not to use the African Street loading bays for meat deliveries for health reasons.