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

 

 

 

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(LIMPOPO DIVISION, POLOKWANE)

 

CASE N2: 1559/2023

REPORTABLE: YES/NO

OF INTEREST TO OTHER JUDGES: YES/NO

REVISED

DATE: 10 March 2023

 

In the matter between: -

 

CLOETE MURRY N.O	FIRST APPLICANT
BIZ AFRIKA 1518 (PROPRIETARY) LIMITED	SECOND APPLICANT
And
UNITED EXPORTS LIMITED	FIRST RESPONDENT
UNITED EXPORTS SOUTH AFRICA
(PROPRIETARY LIMITED)	SECOND RESPONDENT
CAREL VAN DER MERWE	THIRD RESPONDENT
BOETMAG (PROPRIETARY) LIMITED	FOURTH RESPONDENT
MAIZA FRUITS CLOSED CORPORATION	FIFTH RESPONDENT
ALL INTERESTED AND AFFECTED PERSONS
OF BIZ AFRIKA 1518 (PROPRIETARY) LIMITED
LISTED IN ANNEXURE "A" HERETO	SIXTH RESPONDENT

 

ANNEXURE "A"

 

ALL INTERESTED PARTIES AND AFFECTED PERSONS OF BIZ AFRICA 1518 (PTY) LTD

 

1	Adriaan Johannes Louwrens	084 […]
	(ID Number: 8105[…])	r[…]@.ba1581.co.za
2	Marlize Louwrens	073 […]
	(ID Number: 8102[…])	m[…]@.ba1581.co.za
3	Jacobus Adriaan van der Merwe	082 […]
		k[…]@.ba1581.co.za
4	Tracy-Erin Duggan
		t[…] @.stegmanns.co.za
5	Kim McNally
		k[…]@forwardfinance.co.za
6	Lauren Canham
		la[…]@.forwardfinance.co.za
7	Luke McNally
		lu[…]@.forwardfinance.co.za
8	Chris Smart
		C[…]@.forwardfinance.co.za

 

JUDGMENT

 

PILLAY, AJ:

 

Introduction

 

[1]            The parties come before Court by way of an urgent application. The applicant requires the Court to dispense with the normal requirements pertaining to the rules and formalities in respect of timelines in terms of rule 6(12) insofar as it pertains to urgency in respect of this application. The applicant has filed its founding affidavit in support of same. The application is opposed with the respondent filing their opposing affidavit. The applicants replied and the parties filed heads of argument in respect of the said application. The parties sought condonation for the late filing of the answering and replying affidavits. The applicant sought the following orders in respect of this urgent application as follows;

 

[2]            That the 1^st to the 3^rd respondents be directed to immediately restore the applicants' free undisturbed and unfettered possession of the following movable assets/property of the 2^nd applicant (the subject assets) which the 1^st to 3^rd respondents removed from the shared pumphouse situated on the business premises of the applicant and the 4^th and 5^th respondents, on 16 February 2023 namely;

 

1.          An upgraded electrical controller;

 

2.          An upgraded injection unit;

 

3.          2 pumps;

 

4.          An irrigation valve;

 

5.          Various bolts nuts and cabling.

 

[3]            That the 1^st to the 3^rd respondents shall give effect to the order contemplated in paragraph 2 above by forthwith delivering and installing the subject assets to the pumphouse at their own cost and expense.

 

[4]            That the 1^st and 2^nd respondents be ordered to pay the cost of the application on a party and party scale and in the event of any party opposing this application, that such party be ordered to pay the costs of this application on the scale as between attorney and client.

 

[5]            Further and alternative relief.

 

Brief Background

 

[6]            The 2^nd applicant was voluntarily placed in business rescue on the 22 December 2021 with the 1^st applicant on the 5 January 2022, being duly appointed as the business rescue practitioner. At the time that the 2^nd applicant was placed in business rescue it was conducting fruit orchards and crop farming operations with the various respondents on the relevant properties as identified on the photo plan of the said areas.

 

[7]            The 2nd applicant uses a shared pumphouse with the 4^th and 5^th respondents. The relevant loose assets/property were contained in this pumphouse. The 2^nd applicant during 2019 invested approximately R1.2 million to upgrade the said pumphouse equipment to ensure fertigation and the reticulation of water, to the various portions of land being farmed. These 3 parties shared equal use and enjoyment of the pumphouse however the ownership of the abovementioned equipment still vested in the 2^nd applicant. The 1^st and 2^nd respondents used the equipment in their farming of blueberries on the aforesaid properties.

 

[8]            On the 8 February 2023, the 1^st applicant informed all the relevant parties that the 2^nd applicant could not be successfully rescued and that the 1^st applicant was going to apply to Court to discontinue the business rescue proceedings and place the entity in liquidation.

 

[9]            The 1^st to the 3^rd respondents on the 13 February 2023 indicated their intention to remove their infrastructure and equipment from the farms. The farm manager Mr. Lourens informed the 3^rd respondent that this was not possible and that the 1^st to the 3^rd respondents would have to wait till the properties of the various owners were identified and then same could be removed by their lawful owners.

 

[10]    The 1^st to the 3^rd respondents amidst being refused permission to remove anything off the farm, with the help of the 3^rd respondent proceeded to remove various items including the belongings of the 2^nd applicant as identified above, in the absence of Mr Lourens.

 

[11]         This led to the urgent application sought on behalf of the 2^nd applicant by the 1^st applicant in respect of the properties of the 2^nd applicant which was removed by the 3^rd respondent on behalf of the 1^st and 2^nd respondent.

 

[12]         The application is opposed by the 1^st to the 3^rd respondents and the 4^th to the 6^th respondents have not opposed same. The 4^th and 5^th respondents have filed confirmatory affidavits concerning the 2^nd applicant's ownership of the said items which were removed and that the applicant's undisturbed control and possession was interrupted by the conduct of the 3^rd respondent on the instruction of the 1^st and 2^nd respondent.

 

[13]    The 1st to the 3rd respondents answering affidavit raised the following disputes;

 

1.               That the applicants interchanging of the 1st to the 3rd respondents were incorrect as they are seperate distinct entities and as such must be identified in their seperate relevant capacities.

 

2.               That there is a valid contractual agreement involving the 1^st respondent and the 4^th  and 5^th  respondent. The 2^nd  applicant was also party to and involved in the terms of the contract. The provisions of clause 8 stipulated that the infrastructure as listed under B1 of the agreement was to be transferred to the 1^st  respondent by the 5^th  respondent. Further that according to the contents of this agreement the 1st respondent would be entitled to remove its infrastructure and impliments at any time and at its own costs.

 

 

3.               That the pumphouse and its equipment was part of the annexure B1 and as such the 3^rd  respondent was correctly instructed to remove same on the instruction of the 2^nd  respondent and store same at Waterberg the subsidiary of the 2^nd  respondent.

 

4.               That there is no urgency in this application, as the 2^nd  applicant has not been farming since April 2022 and as such was not in free undisturbed possession of the aforesaid equipment as the said equipment was only being used in the farming of the blueberries done by the 2^nd  respondent's subsidiary Waterberg.

 

 

5.               The 3^rd respondent is employed by Waterberg, and not the1st respondent. He is under the supervision of the 2^nd  respondent. On the16 February 2023, amidst being informed by the the farm manager Mr Lourens that there was an issues concerning ownership of the said equipment, the 3^rd  respondent having left, returned to the pumphouse and removed property that was belonging to the 1^st  respondent in terms of the said contract and which the 1^st  respondent was entitled to and had instructed the 3^rd  respondent to remove. This was done in the absence of Mr Lourens.

 

6.               The 1^st  respondent confirmed that in 2019 the 2^nd  applicant indeed funded the upgrade to the pumphouse but the amount involved was unclear. The document referred to in the Notice of motion was not attached and as such the 1^st  respondent maintained that ownership of the equipment belonged to the 1^st  respondent.

 

7.               The items removed was capable of being identified by the 3^rd  respondent who had dismantled same and stored same at Waterberg. In light of the aspect of the 1^st  applicant being unable to clearly identify same and as to who it belonged the 1^st  respondent denied their right in terms of ownership or in terms of a spoilation moreover there was no urgency as the applicants were not doing any farming and in need of the said equipment urgently. The 1^st  to the 3^rd   Respondents sought the dismissal of the application and the 1st applicant to tender the costs of the said application.

 

[14]         With specific reference to the issue of urgency, spoliation and rei vindacatio, the Respondent highlighted that the 2^nd  applicant was not farming since April 2022 thus there was no urgent need for the abovementioned items. It was argued that the 2^nd  applicant was not in undisturbed possession of the pumphouse as the 2^nd  applicant was not in control of same or even utilising the equipment in the pumphouse. The 1^st  respondent argued that the items taken belonged to the 1^st  respondent and as such according to the provisions of the agreement the 3^rd respondent was correctly authorised to remove same as it was the 1^st  respondent's property.

 

[15]         The issue of spoliation could not be relied on by the applicants as they did not have any control over this equipment as they have not been farming and using same, so this undisturbed peaceful possession was not the true reflection of the situation. Waterberg was utilizing the said pumphouse.

 

[16]         That the right of ownership of the 2^nd  applicant was not sufficiently proved for the items to be returned. The 1^st respondent was not in possession of the items which was removed on instruction of the 2^nd  respondent and currently being stored by the subsidiary of the 2^nd  respondent Waterberg which was not joined to the proceedings and as such the return of the items from the 1^st  to the 3^rd was not possible. The Court must rely on the respondent's version concerning this dispute of fact as per the principles of Plascon Evans and as such on the respondent's version the 1^st  respondent owned the equipment which was under Waterberg's control and could not be returned by the 1^st respondent to the applicants as prayed.

 

[17]         The 1^st  to the 3^rd  respondents also denied the issue of the moratorium on legal proceedings on account of the 2^nd  applicant being under business rescue. The 1^st  respondent argued that the provisions of Section 133 of the Companies Act is not applicable as the 1^st  to the 3^rd  respondents did not proceed by way of legal recourse so this provision has no place being raised by the 1^st  applicant.

 

[18]         The 1^st to the 3^rd  respondent argued that the factual enquiry in respect of the mandament comprises of the objective, physical element (corpus, detentio) and the subjective mental element(animus). As the applicants had no physical control over the equipment since April 22 there was no physical control nor the mental intention to possess. There was no evidence that the applicants were farming in 2023 February or even using the equipment thus on this aspect alone, the applicants failed to establish same for this allegation of free undisturbed possession to be proved.

 

[19]         The applicants in reply highlighted that it was common cause that the items were removed on the 16 February 2023 against the direct instruction of Mr Lourens acting on behalf of the applicants that same must not be removed.

 

[20]         That the 1^st  respondent conceded that there were upgrades done by the 2^nd applicant in 2019 and the extent and amount was not known by the 1^st respondent. The 2^nd  applicant's misplaced attachment as well as the said invoices for the 2019 upgrade were traced and attached to the replying affidavit proving that the items sought to be returned belonged to the 2^nd applicant. The applicants insist that there was never ever any agreement that these items would accede to the 4^th  or 5^th  respondent as far as control and ownership was concerned. Further it was clear from the answering affidavit, that the 1^st  to the 3^rd  respondent conceded a contractual dispute existed and amidst same resorted to self-help instead of attempting to resolve the contractual dispute.

 

[21]         The applicant motivated urgency in launching this spoliation alternatively the rei vindicatio application on the following grounds;

 

a)              That a spoilation relief was manifestly urgent due to its nature.

 

b)              That the applicants enjoyed free undisturbed use and enjoyment to the pumphouse wherein the equipment was located. The 1^st  to the 3^rd  respondents deprived the applicants of same by their action of self help which was without lawful right or permission.

 

c)               That there is confirmatory affidavits concerning the 2^nd  applicants ownership of the items removed.

 

d)              That the 1^st  to the 3^rd  respondent resorted to self help and thus committed an act of spoilation of the items belonging to the 2^nd  applicant.  The  2nd  applicants  right  of  ownership  was established and at no stage was this ownership ceded to the 4^th  respondent or the 5^th  respondent and both of them confirmed that this was the case. Moreover, the 1^st  respondent may own equipment of the 5^th  respondent according to the agreement but this didnot include the 2^nd  applicant's property.

 

The Legal principles

 

[22]         Rule 6(12) allows for an application to be heard on an urgent basis. The applicant seeks that the Court dispense with the normal forms and services. The application is heard, based on the time frames set by the applicant and if the respondent fails to comply with same it can be accepted that the application is not opposed.

 

[23]         The law on urgency is abundantly clear. Urgent applications must be brought in accordance with the provisions of rule 6(12) of the Uniform Rules of Court ("The Rules"), with due regard to the guidelines set out in cases such as Die Republikeinse Publikasies (Edms) Bpk vs Afrikaanse Pers Publikasies (Edms) Bpk[1] as well as a well-known case of Luna Meubelvervaardigers (Edms) Bpk v Makin and Another.[2]

 

[24]         The Court went and further stated that the procedure set out in Rule 6(12) is not simply there for the taking.[3] It confirmed the principle set out in a case of East Rock Trading 7 (Pty) Limited and Another v Eagle Valley Granite (Pty) Limited and others in which it was held:-

 

"The import thereof is that the procedure set out in Rule 6(12) is not there for the taking. An applicant has to set forth explicitly the circumstances         which he avers  render  the matter urgent. More importantly, the applicant must state the reasons why he claims that he cannot be afforded substantial readdress at a hearing in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial readdress in the application in due course. The rules allow the court to come to the assistance of a litigant because of the latter, were the applicant to wait for the normal course laid down by the rules, it will not obtain substantial readdress.

 

It is important to note that the rules require absence of substantial redress. This is not equivalent to irreparable harm that is required before the granting of an interim relief Irreparable harm is something less. The party seeking redress may still obtain same in an application in due course, but it may not be substantial. Whether an applicant will not be able to obtain substantial redress in an application in due course will be determined by the facts of each case.

An applicant must make out his case in this regard."[4]

 

[25]         According to the applicant the matter is urgent. The applicant bases this act of spoliation by the 1^st to the 3^rd respondent's removal of the specified equipment prejudicial and opposed to the 2^nd  applicant's ownership and peaceful possession of the listed items and seeks that the 1^st to the 3^rd respondents restore the status quo ante in respect of same.

 

[26]         The mandament van spolie is a possessory remedy. Spoliation is the wrongful deprivation of another's right of possession. Spoliation orders are aimed at ensuring that no man takes the law into his own hands. The Court accepts that an applicant who seeks a spoliation order, seeks final relief and generally such relief may be granted only if the allegations of fact made by the applicant which are admitted by the respondent, together with the allegations of fact made by the respondent, justify the granting of such reliet.[5]

 

[27]         In Ivanov v North West Gambling Board 2012 (6) SA 67 (SCA) at 75 B - E,

 

"the Supreme Court of appeal observed that an applicant upon proof of two requirements, is entitled to a mandament van spolie restoring the status quo ante. The court noted that first is proof that the applicant was in possession of the spoliated thing. In this regard, the cause for possession is irrelevant hence that is why possession by a thief is protected. The second requirement 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. The onus rests on the applicant to prove these two requirements. Furthermore, when the proceedings are on affidavit the applicant must satisfy the court on the admitted or undisputed facts, by the same balance of probabilities required in every civil suit, of the facts necessary for his success in the application."

 

[28]         In Chetty v Naidoo[6], the elements for ownership were restated by Jansen JA; "it is the right of exclusive possession of the res, with the necessary corollary that the owner may claim his property wherever found, from whomsoever is holding it. It is inherent in the nature of ownership that possession of the res should be normally with the owner, and it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner."

 

[29]         The applicants were able to verify proof of ownership of the equipment which was to a certain extent conceded to by the 1^st  to 3^rd  respondents. Moreover, the 4^th  and 5^th  respondents also confirmed the applicant's ownership as contained in their confirmatory affidavit. The 1^st  to the 3^rd respondent's submission that said equipment was not properly identified by the applicants, is misplaced especially as the 3^rd respondent removed the equipment in the absence of Mr. Lourens and as such the 1^st  to 3^rd  respondents had knowledge of the removal of the equipment. This removal was done in the absence and without permission, which was earlier refused.

 

[30]         The approach to determining whether there is a factual dispute was explained in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd[7] as follows:  

 

"...It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant's affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. The power of the Court to give such final relief on the papers before it is, however, not confined to such a situation..."

 

[31]         By relying on this principle, the 1^st  to the 3^rd respondents claim that the farm was being utilised by Waterberg, a separate entity. The separate entity was to be joined to the proceedings and the items are not in the possession of the 1^st to the 3^rd  respondents. I took cognisance that the entity (Waterberg) is a subsidiary of the 2^nd  respondent and the 3^rd  respondent is employed by it. This is not a scenario of unknown parties involved in the activity of the removal and storage of the applicant's equipment. Waterberg is an extension of the 1^st  to the 3^rd respondents and as highlighted the items whereabouts are known so this non joinder is moot as this is just the location of storage of the equipment by the 3^rd  respondent.

 

[32]         The argument concerning the applicants not farming, so they could not be enjoying the use and enjoyment of the equipment, also finds no merit. Possession or control of the equipment does not require handling and using of same 24/7. What the Court accepts and which was argued by the applicants is the de facto control over and knowledge of the equipment's whereabouts which was supervised by and under the control of the manager Mr Lourens. This undisturbed possession was disrupted by the 3^rd respondent removing the equipment in the absence and without the knowledge of Mr Lourens.

 

[33]         The applicants not only rely on the mandament van spolie, they also have reliance on the 2^nd  applicants proof of ownership. The 1^st  to the 3^rd  respondents motivate that same cannot be considered by Court as it was new evidence in the reply. The concession by the 1^st  respondent of the knowledge of this 2019 upgrade is sufficient to warrant the Court also on the respondent's version to accept ownership was established.

 

[34]         In Fakie N O v CCII Systems (Pty) Ltd[8] the SCA stated the following regarding disputes of facts in motion proceedings (para 55):

 

"That conflicting affidavits are not a suitable means for determining disputes of fact has been doctrine in this court for more than 80 years. Yet motion proceedings are quicker and cheaper than trial proceedings, and in the interests of justice courts have been at pains not to permit unvirtuous respondents to shelter behind patently implausible affidavit versions or bald denials  "

 

[35]         I am satisfied this pumphouse stored the relevant equipment, at the time farming of the blueberries were being done by Waterberg. It is uncertain what motivated the removal of this equipment, but the decision of the 1^st  applicant appeared to be the only trigger that led to the 3^rd  respondent removing the equipment. This was without permission. The terms of clause 8 as contained in the contract between the 5^th and 1^st  respondent cannot be relied upon to justify the self -help act committed by the 1^st  to the 3^rd respondent.

 

[36]    Despite the shortcomings and what appears at face value to be contradictions in the applicant's affidavits, I am satisfied that final relief can be granted without recourse to dismissing, striking off the roll or need for oral evidence on the basis of the facts averred in the founding affidavit that have been admitted by the 1^st  respondent, together with the facts alleged in the latter's answering affidavit. The 1^st  to 3^rd  respondent do not establish a real, genuine and bona fide dispute of fact. This can exist only where the Court is satisfied that the party who purports to raise the dispute has in its affidavit seriously and unambiguously addressed the fact said to be disputed which was not done. Regard had to the 2019 upgrade by the 2^nd  applicant in respect of the said equipment.

 

[37]    The applicants have proven ownership and possession of this equipment and whether this equipment is being used or not by the 2^nd  applicant is irrelevant to its right of ownership and possession for the spoliation and or vindicatory application sought.

 

[38]    The issue of the subsidiary of the 2^nd  respondent having the equipment is ancillary, the 3^rd respondent knows where it was kept, he removed same, so nothing prevents him fetching same and restoring the situation to as it was prior to the removal.

 

[39]         The Court having considered these veIy relevant aspects, found it not necessary to delve into the provisions of the liquidation and whether there was any such breach of the Companies Act. I also was satisfied that there was such close nexus between Waterberg and the 1^st  to the 3^rd respondents that the non- joinder argument was also without merit.

 

[40]         In respect of urgency which was relied on by the 1^st  to 3^rd respondents for why the matter needed to be struck off the roll. I highlighted the relevant rule and the supporting case law. The motivation by the 1^st  to 3^rd  respondents for why this matter is not urgent is also misplaced. A company that is potentially being placed under liquidation must not have its value and usefulness depreciated, by some of its potential creditors to the prejudice of the others. Moreover, the rights which the 1st respondent seeks to enforce may very well be valid in law but that too cannot permit the conduct of the 1^st to 3^rd  respondents and the urgency in this application is the real fact that if the normal course was to occur those items would potentially be lost for good and that is in itself sufficient to satisfy urgency.

 

[41]         It is by normal course that costs follow the successful party, and there is no reason to order differently. In as much as costs being sought on a higher scale, I do not believe that same is necessary in the circumstances.

 

[37]         In the result I make the following order;

 

1.       In terms of rule 6(12) the normal requirements pertaining to the rules and formalities in respect of timelines is dispensed with and the matter is found to be urgent.

 

2.       Condonation is granted to both parties in respect of non compliance with the time frames in respect of serving and filing the relevant affidavits.

 

3.       That the 1^st  to the 3^rd respondents are directed to immediately restore the applicants' free undisturbed and unfettered possession of the following movable assets/property of the 2^nd  applicant (the subject assets) which the 1^st  to 3^rd  respondents removed from the shared pumphouse situated on the business premises of the 2nd applicant and the 4^th  and 5^th  respondents, on 16 February 2023 namely;

 

i.       An upgraded electrical controller;

ii.     An upgraded injection unit;

iii.     2 pumps;

iv.    An irrigation valve;

v.     Various bolts nuts and cabling.

 

4.       That the 1^st  to the 3^rd  respondents shall forthwith deliver and install the subject assets to the pumphouse at their own cost and expense.

 

5.       That the 1^st  and 2^nd  respondents be ordered to pay the cost of the application on a party and party scale.

 

KL Pillay

Acting Judge of the High Court

Limpopo Division Polokwane

 

APPEARANCES:

 

HEARD ON                                28 FEBRUARY 2023

JUDGMENT DELIVERED ON      10 MARCH 2023

 

FOR THE APPLICANT	ADV. P LOURENS
INSTRUCTED BY	STRYDOM & BREDENKAMP INC
	c/o DE BRUIN OBERHOLZER ATTORNEY
	REF: C OBERHOLZER/STR9/0239
	c.oberholzer@dbolaw.co.za
FOR THE RESPONDENT	ADV. BE LEECH SC BAKERS ATTORNEYS
INSTRUCTED BY	c/o DU TOIT SWANEPOEL STEYN &
	APRUYT ATTORNEYS
	REF: CJ SPRUYT/IE/8267
	ina@dtsss.co.za

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