IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NO: 1410/2013 “NOT REPORTABLE”
In the matter between:
SLABBERT BURGER TRANSPORT (NAMIBIA) (PTY) LTD			Applicant
(Registration number 2003/267)
and
RYNETTE PIETERS NO in her capacity as joint provisional 
liquidator of Slabbert Burger
Transport (Pty) Ltd (in liquidation)	First Respondent

joint provisional liquidator of Slabbert Burger Transport (

EZECHIEL ALBERT BEDDY NO in his capacity as joint 
provisional liquidator of Slabbert Burger 

SLABBERT BURGER EIENDOMME (PTY) LTD

JUDGMENT:14 FEBRUARY 2013
R. M. NYMAN A.J.

[2] The applicant, a Namibian transport company, is the owner of various vehicles which it uses to transport goods through the Southern African region. In terms of an oral cooperation agreement that the applicant concluded with Slabbert Burger Transport (Pty) Ltd (in liquidation) (“SBT”), the applicant’s vehicles used the depots of SBT while in exchange, SBT’s vehicles used the applicant’s depot in Windhoek.
[3] On 7 December 2012 SBT was placed in liquidation and the first to third respondents (“respondents”) were appointed as joint provisional liquidators on 12 December 2012. Its liquidation was by way of special resolution passed by SBTs board of directors and is deemed to be a creditors’ voluntary winding up in terms of sections 349 and 351 of the 1973 Companies Act. On 8 February 2013 the creditors’ voluntary winding up was converted into a compulsory winding-up, affording the liquidators full investigative powers.
[4] The applicant contends that the respondents have unlawfully deprived it of possession of the trucks, trailers and one Toyota Land Cruiser shown in Annexure “NAM2” (“NAM2”) annexed to the founding affidavit, when they locked the gates of the depots where the vehicles are parked. It is not in dispute that the majority of the vehicles marked with the annotation “WELL” were or are situated on the property of the fourth respondent in Wellington on the date of liquidation or shortly thereafter. This property is situated next to the depot of SBT given that the fourth respondent does not have its own entrance. Access to the property of the fourth respondent is gained by way of a servitude that is registered over SBTs immovabfe property. The minority of the vehicles marked with the annotation “WELL” were or are situated at the Wellington depot of SBT on the date of liquidation or shortly thereafter. The vehicles marked with the annotation “BRAKPAN” were or are situated at SBT’s depot on the date of liquidation or shortly thereafter. This depot is owned by the fourth respondent.
[5] NAM2 shows that the majority of the vehicles, where the annotation “Natis” does not appear, have Namibian registration numbers. It is not in dispute that the applicant’s legal representatives had furnished the respondents with registration documents to show its ownership of the majority of the vehicles. Copies of these registration documents are annexed to the founding affidavit. It is also not in dispute that the minority of the vehicles, where the annotation “Natis” appears, are registered in the name of SBT of which a number of these vehicles were financed through finance agreements concluded between the applicant and Scania finance. Copies of these finance agreements are annexed to the papers. The applicant alleges that the reason why these vehicles were registered in the name of SBT is to allow these vehicles to load and deliver loads in the Republic of South Africa without having to apply for a “cabbotage” permit.
[6] It is not in dispute that, with the exception of the vehicles parked at the Brakpan depot, the applicant retained possession of the keys of the vehicles appearing on NAM2.

735 (A) at 739 E-G:

[9] Therefore, to succeed with the spoliation application, all that the applicant has to prove is that it had possession of the vehicles and that the first to third respondents had unlawfully deprived it of possession of the vehicles. In my view, the applicant has proven both requirements, given that the papers show that the respondents have not placed into dispute the relevant facts that form the bases of the spoliation application.
[10] The respondents have proven that prior to the act of spoliation, namely the time when the gates to the depots were locked, the applicant’s drivers drove the vehicles and used the depots to park the vehicles. This is evident from the fact that the applicant has possession of the keys to most of the vehicles. While it is trite that ownership is not required to prove possession, the applicant’s ownership of most of the vehicles and the existence of loan agreements in respect of a number of the vehicles of which the applicant is not the owner, to my mind, are relevant factors that should be taken into account in this case, to confirm the applicant’s possession of the vehicles. In my view the respondents unlawfully deprived the applicant of possession by locking the gates of the depots and by placing guards at the entrances to the depots, to prevent the applicant access to the vehicles.

determining, the rights of the parties in and to the thing possessed. It is a speedy remedy available when a person has been deprived of possession by means other than agreement or recourse to law. In other words, the remedy is designed to prevent self-help, and to promote social cohesion by requiring disputes as to possession to
be resolved only by lawful means.”
[18] The respondent was afforded four days to draft an answering affidavit to a founding application comprising of 15 pages together with annexures which are already in their possession. In my view, the respondents were afforded sufficient time to prepare opposing papers. Given the nature of the application and the substantial losses being incurred by the applicant, reasonable grounds are present to consider this matter on an urgent basis.

[20] It is therefore as a result of the aforegoing reasons that I make the following Orders:
(a) The applicant’s failure to abide by the ordinary rules pertaining to time periods, filing and service, is condoned.
(b) The first, second and third respondents are ordered to allow the applicant to remove the vehicles as set out in Annexure NAM2 to the applicant’s founding affidavit from the premises controlled by the first to fourth respondents.
(c) The first, second and third respondents are ordered to pay the costs of the application.

R.M. NYMAN A.J.
ACTING JUDGE OF THE HIGH COURT