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[2016] ZAWCHC 137
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Van Zyl v Siyaya Engine Rebuilders CC and Another (A267/2016) [2016] ZAWCHC 137 (19 October 2016)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case No: A267/2016
In
the matter between
CHRISTIAAN
JACOBUS VAN ZYL
APPELLANT
and
SIYAYA
ENGINE REBUILDERS CC
FIRST
RESPONDENT
ELNA
BOTHA
SECOND
RESPONDENT
Coram
:
ROGERS J
Heard:
14 OCTOBER 2016
Delivered:
19 OCTOBER 2016
JUDGMENT
ROGERS
J (MAGONA AJ concurring):
[1]
On 13 October 2015, and by way
of an application issued on the previous day, the appellant obtained
an ex parte order in the court
a quo against the respondents
interdicting them from selling two vehicles and directing the sheriff
to take them into possession.
This was pending the outcome of a
vindicatory action to be instituted by the appellant. The respondents
were called upon to show
cause on 3 November 2015 why the order
should not be made final.
[2]
The ex parte order was
executed on the day of its issue and the vehicles removed. One of the
vehicles had to be towed away. The
respondents opposed the
confirmation of the order. The return day was extended. On 24 March
2016 the court a quo discharged the
ex parte order with costs,
essentially on the basis that the appellant had failed to disclose
material facts. Pursuant to such
discharge, the vehicles were
returned to the respondents and remain in their possession. The
appellant’s vindicatory action
is pending in the court quo.
[3]
The appellant now appeals to
this court. Mr TD Potgieter SC appeared for him and Mr Coston for the
respondents.
[4]
Rule 55(1)(c) of the
Magistrate’s Court Rules provides that where it is necessary or
proper to give a person notice of relief
sought on application, the
notice of motion must be addressed to and served on such person. Rule
55(3)(a) provides that no application
in which relief is claimed
against another person shall be considered ex parte unless the court
is satisfied that the giving of
notice would defeat the purpose of
the application or that the degree of urgency is so great that it
justifies dispensing with
notice. In terms of rule 55(3)(g) the court
on the return day of an ex parte order may confirm, discharge or vary
the order on
cause shown by any affected person.
[5]
It is well established that a
person who seeks relief ex parte has a duty of good faith to disclose
all facts which might, not necessarily
would, affect the court’s
decision to grant or withhold the relief (
Schlesinger
v Schlesinger
1979
(4) SA 342
(W) at 348E-349B). This principle applies as much in the
lower courts as in the high courts. Non-compliance is one basis on
which
a presiding officer could exercise the power conferred by rule
55(3)(g) to discharge an ex parte order, even in a case where the
merits favoured the applicant.
[6]
Another circumstance in which
an ex parte order might be discharged is where, on a consideration of
the additional facts disclosed
by opposing and replying papers, the
court concludes that the relief claimed by the applicant is not
justified on the merits.
[7]
Mr Potgieter submitted that
these were effectively the only two bases on which a court on the
return day could discharge an ex parte
order. I disagree. Rule
55(3)(g) does not limit the grounds on which a court may exercise the
power conferred. Provided cause is
shown, the order may be
discharged.
[8]
It seems to me that, in
addition to the two grounds for discharge which I have already
mentioned, another ground would be that the
case was simply not one
in which recourse to ex parte procedure was justified. The general
principle, recognised in rule 55(1)(c),
is that an affected person
must be given notice of an application. Apart from special types of
applications dealt with elsewhere,
the only circumstances in which a
court may grant relief ex parte are those mentioned in rule 55(3)(a).
[9]
If an applicant for ex parte
relief has made full and fair disclosure, and if on the facts thus
disclosed an ex parte application
is not justified, one would not
expect a presiding officer to grant an order. However due to
inexperience or the press of work
judicial officers do sometimes
grant ex parte orders which are not justified by the founding papers.
If the respondent shows on
the return day that the applicant was not
justified in proceeding ex parte, I have no doubt that this would
constitute cause for
discharging the order.
[10]
As in the case of
non-disclosure, the court would not be obliged to discharge the
order. The court has a discretion to be judicially
exercised. In the
exercise of its discretion the court can properly take into account
that notice to affected persons is a fundamental
principle of
fairness in the administration of justice and that litigants should
be discouraged from attempting to bypass it. In
Republic
Motors (Pvt) Ltd v Lytton Road Service Station (Pvt) Ltd
1971
(2) SA 516
(R), a case not dissimilar to the present one, Beck J said
the following (518F-H):
‘
The
procedure of approaching the Court ex parte for relief that affects
the rights of other persons is one which, in my opinion,
is somewhat
too lightly employed. Although the relief that is sought when this
procedure is resorted to is only temporary in nature,
it necessarily
invades, for the time being, the freedom of action of a person or
persons who have not been heard and it is, to
that extent, a negation
of the fundamental precept of audi alteram partem. It is accordingly
a procedure that should be sparingly
employed and carefully
disciplined by the existence of factors of such urgency, or of
well-grounded apprehension of perverse conduct
on the part of the
respondent who is informed beforehand that resort will
be
had to
the
assistance of the Court, that the course of justice stands in danger
of frustration unless temporary curial intervention can
be
unilaterally obtained.’
To
similar effect see the full bench judgment in
Byway
Projects 10 CC v
Masingita
Autobody CC
[2011]
ZAGPJHC
54 paras 11-17.
[11]
Mr Potgieter cited
Contract
Forwarding Pty Ltd v Chesterfin (Pty) Ltd
2003
(2) SA 253
(SCA) at 260B-C as authority for the proposition that on
the return day of an ex parte order for taking movable assets into
possession
the rule can be discharged only on grounds that go to the
root of the creditor’s entitlement to possession. In my view
the
passage in question does not support Mr Potgieter’s
submission that the court on the return day cannot discharge the rule
on the basis that recourse to ex parte procedure was unjustified.
Contract Forwarding
concerned the
perfection of a notarial bond. The debtor was not opposing
confirmation; the dispute was between the applicant and
another
bondholder. Harms JA was considering the character of the possession
obtained by the applicant at the provisional stage.
There was no
suggestion in the case that the applicant had not been justified in
proceeding ex parte or that it had been guilty
of non-disclosure.
Harms JA’s remarks were not directed at the considerations
which would arise in the latter circumstances.
[12]
In the present case I consider
that the discharge of the ex parte order was justified even if the
appellant was not guilty of non-disclosure
in his founding papers.
The following relevant assertions appear from the founding affidavit:
·
The appellant is the
owner of the two vehicles.
·
After he bought the
vehicles, he lent them to C van der Merwe. He trusted Van der Merwe
to keep him informed about the whereabouts
of the vehicles. When he
tried to get hold of Van der Merwe he could not find him/her (the
affidavit did not say) or the vehicles.
·
On 16 September 2015
the appellant learnt that the vehicles were in the possession of the
first respondent (‘Siyaya’).
·
The appellant’s
attorney, Ms C Esterhuizen (‘Esterhuizen’), spoke with
the second respondent (‘Botha’),
a person actively
involved in Siyaya’s business. Botha told Esterhuizen that Van
der Merwe had failed to collect the vehicles,
that Siyaya had not
undertaken repairs but that storage costs amounting to R320 000
(at R450 p/d) were payable. Esterhuizen
informed Botha that the
appellant was the owner. Botha said that she would not release the
vehicles to the appellant but was willing
to negotiate on the amount
of the storage costs.
·
Botha furnished
Esterhuizen with the quotations Siyaya had given to Van der Merwe in
March and November 2014 for the repair of the
vehicles. These
quotations make reference to storage fees of R450 p/d if the customer
‘holds up the job’.
·
On 22 September 2015
Botha informed Esterhuizen that the vehicles were no longer at
Siyaya’s premises but were being kept
at her home.
·
On Thursday 8 October
2015 Botha informed Esterhuizen that she had placed a notice in
Die
Burger
to the
effect that Siyaya intended to sell the vehicles to recover the
arrear storage fees.
·
Attached to the
founding affidavit was a copy of the notice dated 8 October 2015. The
notice was addressed to the appellant and
Van der Merwe as co-owners,
informing them that if they did not collect the vehicles within seven
days they would be sold to cover
arrear storage fees. One can accept,
in the light of the respondents’ attitude, that this did not
mean that they would release
the vehicle to the appellant or to Van
der Merwe in the absence of payment of a satisfactory amount for
storage costs
·
The appellant alleged
that it was clear from the advertisement that the respondents were
not pursuing his disputed claim in a bona
fide manner but intended to
take the law into their own hands to deprive him of his opportunity
of vindicating the vehicles. Mala
fides on their part was alleged.
·
The ex parte
application was issued on 12 October 2015 and granted the following
day.
[13]
I leave aside for the moment
the very sparse allegations concerning ownership and the
circumstances in which Van der Merwe came
into possession of the
vehicles. The appellant through his attorney had been in contact with
the respondent since about 16 September
2015. Botha had informed
Esterhuizen that the respondents would not release the vehicles but
were willing to negotiate about storage
costs. When the vehicles were
moved to Botha’s home, the latter informed Esterhuizen. And
importantly, on the very day the
notice was published in
Die
Burger
, 8 October
2015, Botha informed Esterhuizen thereof. Although the founding
affidavit did not highlight this point, the attached
notice afforded
a seven-day period and specifically identified the appellant as a
co-owner.
[14]
It is clear from the founding
papers that Siyaya was asserting a right to retain possession of the
vehicles until its storage costs
were paid. The respondents were
quite open about this. By 8 October 2015 the appellant himself had
taken no legal action to establish
his right to the vehicles. The
respondents brought this to a head by publishing the notice. They did
not do this behind the appellant’s
back.
[15]
The appellant and his attorney
offered no explanation in the founding papers for why they did not
contact the respondents, on receipt
of the notice of 8 October 2015,
to seek an undertaking that the vehicles would not be sold pending
the outcome of an action or
pending the determination of an
application for an interim interdict. If this had been done, the
respondents would almost certainly
have provided an undertaking. In
any event, in terms of the notice the respondents would not have
begun the sale process before,
at the earliest, 15 October 2015. This
provided sufficient time for an urgent application to be brought on
notice to the respondents.
[16]
The obtaining of an ex parte
order was thus wholly unjustified as was the allegation of mala
fides. With reference to the requirements
of rule 55(3)(a), this was
not a case where the giving of notice would have defeated the purpose
of the interim relief or where
there was such urgency that the court
could altogether dispense with notice. At best for the appellant some
abridgement of the
ordinary time limits would have been needed,
depending on whether or not the respondents were willing to give a
temporary undertaking.
[17]
The facts which emerged from
the further affidavits do not put a different complexion on matters.
Relevant facts alleged by the
respondents were the following:
·
Botha told Esterhuizen,
when the latter first contacted her in September 2015, that she was
holding the vehicles as security for
work done and that she would be
starting the process of selling the vehicles to recover costs and
damages. She invited Esterhuizen
to come and inspect the vehicles.
·
Because of the
continued inconvenience of having the vehicles at Siyaya’s
workshop, Botha moved the vehicles to her residence
to limit damages
and costs and so that the appellant/Esterhuizen could inspect the
vehicles after hours if they preferred. At her
home the vehicles were
stored behind security walls and 24-hour camera surveillance.
·
The
appellant/Esterhuizen never took up the opportunity to inspect the
vehicles.
·
At no stage did the
appellant/Esterhuizen ask for an undertaking from the respondents not
to sell the vehicles.
·
Since the vehicles were
not registered in Siyaya’s name, the respondents could not have
sold the vehicles without following
the procedures required by the
City of Cape Town’s Abandoned Vehicle Division. The publication
of the notice, which Botha
sent to Esterhuizen, was the first step in
this procedure. If there was no reaction from the owner, the
respondents would have
been required to provide the City with an
affidavit, whereafter City officials would usually attempt to contact
interested parties.
[18]
In the replying affidavit the
appellant, as confirmed by his attorney, said the following:
·
The first contact
between Esterhuizen and Botha was on 20 September 2015. Botha said
that the vehicles were being held for storage
costs, not work done.
·
By this stage the
vehicles, according to what Botha told Esterhuizen, were already at
her residence. She informed Esterhuizen that
they should inspect the
vehicles.
·
Esterhuizen in fact
visited Botha’s residential address and could see both
vehicles. (The appellant does not say when this
happened.) She saw
six vehicles in all. One of the appellant’s vehicles was parked
in a corner with other vehicles fully
surrounding it.
·
Esterhuizen was absent
from the Western Cape for a short period and returned on 10 October
2015, by which date the respondents had
already placed the notice in
the newspaper.
·
There was still no
explanation as to why Esterhuizen had not sought an undertaking from
the respondents.
[19]
The fact that the respondents
invited the appellant and his attorney to inspect the vehicles and
that Esterhuizen in fact did so
(or at least saw that they were at
Botha’s premises) fortify the view that the respondents were
not acting in an underhand
way. Yet the vehicles were seized by the
sheriff on the strength of an ex parte order. Botha says that during
the execution of
the order she was made to feel like a thief.
[20]
I also think that the court a
quo was entitled to find that there were facts known to the appellant
which were not disclosed in
the founding papers and which might have
influenced a court in assessing the ex parte relief. I have already
mentioned the respondents’
invitation to the
appellant/Esterhuizen to inspect the vehicles and that Esterhuizen in
fact did so. This was one of the matters
on which the court a quo
commented adversely.
[21]
Another circumstance, though
not relied upon by the court a quo, was that the body of the
affidavit did not fully describe the terms
of the notice published in
the newspaper. Although a copy of the notice was attached to the
founding affidavit, the print was small
and a busy presiding officer
may not have checked the terms of the notice. The appellant should
have said in his affidavit that
the notice was addressed to him and
Ms van der Merwe and that seven days were afforded to them to collect
the vehicles. This would
have alerted the presiding officer to the
fact that there was no immediate danger of the vehicles being sold.
[22]
The court a quo considered
that the appellant had failed to disclose material facts as to the
circumstances in which Van der Merwe
came to be in possession of the
vehicles. Mr Potgieter argued that these circumstances were
irrelevant. I disagree. So little is
said in the founding papers
about the appellant’s acquisition of ownership and the loan of
the vehicles to Van der Merwe
that a reader might be excused for
thinking that the vehicles had been lent to Van der Merwe relatively
recently and that she had
then evaded the appellant. The appellant
did not say when or for what purpose he lent the vehicles to
Van der Merwe.
[23]
In her opposing affidavit
Botha relayed what she had been told by Van der Merwe. The latter
signed a confirmatory affidavit. This
version was that Van der Merwe,
her husband and the appellant had conducted business together as
Groceries Express. During June
2010 the business closed down because
according to the appellant it was no longer profitable and there was
no longer any trust
between the parties. The two vehicles in question
were previously used in this business. When the business closed down
the appellant
proposed that the Van der Merwes take over the vehicles
for use in their new business. The appellant gave them the keys and
license
discs. There were many discussions to formulate an agreement
regarding ownership but nothing was ever signed. The Van der Merwes
nevertheless made payments to the appellant totalling R117 910.
There had been no discussions between the parties about the
vehicles
since 2011.
[24]
The replying affidavit
contained a good deal of argumentative matter regarding the
respondents’ papers but very little regarding
the history
between the appellant and the Van der Merwes. The appellant denied
that the Van der Merwes had made any payment towards
the vehicles or
that he gave them the vehicles to start a new business. He denied
having handed them the keys in 2011, asserting
that they had had the
keys since 2009. He claims that their possession subsequently became
unlawful (presumably, on his version,
when the business closed down)
and that despite numerous demands they had failed to return the
vehicles. He says his calls went
unanswered and they failed to arrive
for meetings.
[25]
On the appellant’s own
version, the respondents have been in possession of the vehicles (he
says unlawfully) since 2010 when
the business closed down. He did not
disclose this fact in his founding papers and did not provide
information as to the steps
he took to try to recover the vehicles.
Even now the evidence of these steps is practically non-existent.
These facts may have
influenced a court at the ex parte stage. The
appellant’s case in the founding papers was a simple assertion
of ownership.
He had, however, allowed someone else (the Van der
Merwes) to be in possession of the vehicles for four to five years
without taking
legal action against them. He must have realised that
during this period the vehicles would require servicing and possible
repair.
[26]
A presiding officer might, in
the circumstances, have required more information before concluding
prima facie that the appellant
had retained ownership. The presiding
officer might also have wished to probe whether the appellant’s
conduct had not negligently
created the impression that the Van der
Merwes were entitled to possession of the vehicles and to have them
repaired. Although
the onus in the main proceedings would be on the
respondents to allege and prove an estoppel against the owner (for
estoppel in
this context, see for example
Quenty’s
Motors (Pty) Ltd v Standard Credit Corporation Limited
[1994] ZASCA 41
;
1994
(3) SA 188
(A)), I do not think a presiding officer would have been
precluded from refraining to act ex parte in view of circumstances
indicating
that a defence of estoppel might succeed.
[27]
I do not know whether the
respondents in the pending action have pleaded estoppel and I
certainly do not say that on the limited
facts known to this court a
defence of estoppel would succeed. However it was not for the
appellant to prejudge these matters.
It clearly could not have
assisted his case in the ex parte proceedings, and might have harmed
it, if he had frankly stated that
the Van der Merwes had been in
possession of the vehicles for four to five years and that he had
done nothing to stop them behaving
as if they were the owners.
[28]
Another matter which the court
a quo held against the appellant was that he had failed, in support
of his assertion of ownership,
to attach the registration documents
for the vehicles. The court a quo accepted that at the hearing of the
ex parte proceedings
the appellant’s attorney had handed copies
of the registration documents to the presiding officer. She
considered, however,
that the material in question should have been
included as part of the founding papers. Insofar as this was held
against the appellant
as a non-disclosure, I think the court a quo
erred. The duty of disclosure arises from the overriding obligation
of good faith.
If due to an oversight something of importance is
omitted from the founding papers, a litigant in the discharge of his
duty of
good faith can and should (through his legal representative)
disclose it at the hearing. That is what happened here.
[29]
How far the registration
documents advanced the appellant’s case is another question.
The registration of vehicles does not
determine their ownership.
Furthermore the two registration documents handed to the presiding
officer, and annexed to the replying
papers, were issued on 12
October 2015, the very day on which the ex parte application was
issued. The registration documents are
described as duplicate
registrations. One can accept that the licensing authorities would
not have issued these documents if the
vehicles had not previously
been registered in the appellant’s name. But the date of issue
may suggest that the appellant
only procured current registration
documents when he wanted to obtain relief against the respondents.
[30]
After concluding that the ex
parte order should be discharged because of non-disclosure, the court
a quo made an obiter observation
that the order could in any event
not be sustained given the disputes of fact. This is incorrect.
Disputes of fact do not preclude
the granting of an interim
interdict. The question is whether the applicant has established a
prima facie right though open to
some doubt.
[31]
Nevertheless I am satisfied
that the court a quo was entitled to discharge the order for
non-disclosure. And I think the discharge
was in any event correct in
view of the fact that the circumstance simply did not justify
proceeding ex parte.
[32]
For the record Mr Coston
confirmed at the hearing of the appeal that his clients undertook not
to dispose of the vehicles pending
the outcome of the action. It may,
however, be sensible if the parties were to agree that the vehicles
could be sold and the money
held in trust.
[33]
The appeal is dismissed with
costs.
______________________
ROGERS
J
_____________________
MAGONA
AJ
APPEARANCES
For
Applicant
TD
Potgieter SC
Instructed
by
Esterhuizen
Attorneys
1
st
Floor, Willowbridge Centre
Tygervalley
For
Respondents
Mr
AP Coston
Instructed
by
Marais
Muller Hendricks
58
Van Riebeeck Road
Kuilsriver