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[2016] ZAWCHC 179
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Sheziphase (Pty) Ltd v European South African Chamber of Commerce (Pty) Ltd and Another (21627/16) [2016] ZAWCHC 179 (21 November 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: 21627/16
In
the matter between:
SHEZIPHASE
(PTY)
LTD
Applicant
and
EUROPEAN
SOUTH AFRICAN
CHAMBER
OF COMMERCE (PTY) LTD
First
Respondent
AERIOS
GLOBAL AVIATIONS (PTY) LTD
Second
Respondent
Heard:
16 November 2016
Delivered:
21 November 2016
JUDGMENT
BOQWANA,
J
Introduction
[1]
On 03 November 2016, the
applicant brought an
ex
parte
urgent
application against the respondents for an order directing the
respondents to forthwith restore possession of the Eurocopter
Gazelle
with registration number SA341G Gazelle (‘the helicopter’)
to the applicant and that the same may not be unlawfully
removed.
[2]
The applicant alleges in
its founding affidavit that the helicopter was removed from the
applicant’s possession on 02 November
2016. Mr Jonathan Killik
who is a deponent to the founding affidavit and a director of the
applicant asserts that he was advised
by one Darryl Waterford of Base
4 Aviation on 01 November 2014 (sic) that the second respondent, on
the instructions of the first
respondent removed the helicopter from
the premises onto the tarmac and thereafter moved it to the premises
of the second respondent.
This was done without the applicant’s
consent.
[3]
Mr Killik further alleges
that the respondents had no right to remove the helicopter from the
premises as he had informed the first
respondent that he was
asserting a lien over the helicopter, (I assume on behalf of the
applicant) and that their conduct amounted
to unlawful dispossession.
The lien was allegedly for improvements and services rendered to the
first respondent.
[4]
An order was issued by
this court on 03 November 2016 pursuant to the
ex
parte
urgent
application, for the sheriff to take possession of, retain the
helicopter and transport it to Base 4, Hangar 10/Plot 10,
Convair
Road, Cape Town International Airport (‘Hangar 10’), with
the assistance of the applicant. A rule nisi was
issued for the
respondents to,
inter
alia
, furnish reasons
why the applicant should not retain the helicopter. In terms of the
order the respondents could anticipate the
return day on 48 hours’
notice to the applicant.
[5]
On 14 November 2016, the
first respondent filed a notice of anticipation in accordance with
paragraph 8 of the order. The
application was argued before me
on 16 November 2016 with Mr Joubert representing the applicant and Mr
Kantor the first respondent.
[6]
The first respondent
contended that no case was made out that the applicant was in
possession of the helicopter, and furthermore
the applicant failed to
disclose material facts to the court when bringing the
ex
parte
application,
which facts might have led the court to reach a different conclusion.
The first respondent therefore submits that the
applicant’s
case should be dismissed on that basis alone, (apart from it not
having shown possession) and that costs should
be awarded on the
scale as between attorney and client against the applicant.
[7]
The law in cases of
mandament van spolie
is trite. It has been traversed
in many cases. In
Chopper
Worx (Pty) Ltd & Another v WRC Consultation Services (Pty) Ltd
2008 (6) SA 497
(C) at para 9,
Moosa J referred to
Scoop
Industries (Pty) Ltd v Langlaagte Estate and GM Co Ltd
1948
(
1)
SA 91
(W) at 98 – 99, summarising the legal position as
follows:
‘Two factors are requisite to found a claim for an order for
restitution of possession on an allegation of spoliation.
The
first is that applicant was in possession and the second, that he has
been wrongfully deprived of that possession and against
his wish.
It has been laid down that there must be clear proof of possession
and of the illicit deprivation before an order should be granted.
(see
Rieseberg v Rieseberg
(1926, WLD 59
, at 65).)
It must
be shown that the applicant had had free and undisturbed possession
(
Hall v Pitsoane
(1911, TPD 853).)
When it is shown that there
was such possession, which is possession in physical fact and not in
the juridical sense, and there
has been such deprivation, the
applicant has right to be restored in possession
ante omnia
.
On a claim for such restoration it is not a valid defence to set up a
claim on the merits.’
(Own
emphasis)
[8]
I do not need to refer to
other trite principles relating to spoliation matters as the law
reports are abounding with cases on this
issue, save to state that
the court need not enquire into the underlying rights of the parties.
Furthermore, the onus rests on
the applicant to prove the required
possession and unlawful deprivation of such possession. The
applicant must prove facts
necessary to justify a final order –
that is, that the things alleged to have been spoliated were in its
possession, and
that they were removed from its possession forcibly
or wrongfully or against its consent (see Chopper Worx supra at para
11).
[9]
The sole allegation of
possession relied upon by the applicant is found in paragraph 15 of
the founding affidavit which states the
following: ‘
The
applicant was in possession of the helicopter and the helicopter was
stored at EC Aviation in Cape Town.’
[10]
It is not stated how and
when the applicant became or was in possession of the helicopter and
who EC Aviation was and how it came
about that an applicant whose
business address is in Woodmead, Sandton was in possession of a
helicopter stored in premises of
an entity in Cape Town, whose
identity and connection with the applicant is not explained in the
founding papers.
[11]
It is in the answering
affidavit that more information is revealed. It is alleged therein
that the helicopter was in fact delivered
in Gauteng in February
2016. The applicant performed work on the helicopter in Gauteng from
time to time in respect of which it
was paid and that a total of R1.8
million had been paid. Mr Killik flew the helicopter to Cape
Town in July 2016. On 19 July
2016, Mr Killik purportedly acting on
behalf of an entity known as Aviation Towards Success CC (‘ATS’)
concluded an
agreement of lease in respect of the helicopter with EC
Aviation in order for it to be hangared by EC Aviation. A copy
of
this lease agreement dated 19 July 2006 is attached to the
answering affidavit. In terms of the lease agreement the tenant, i.e.
ATS,
inter alia
,
agreed to pay EC Aviation an amount of R3500.00; the helicopter would
not be moved unless one of EC Aviation engineers was there
to assist.
Most importantly, the lease was on a month to month basis starting
from 15 July 2016 and EC Aviation could terminate
it within a 48 hour
period, and in the event any account being outstanding, the machine
would not be permitted to move.
[12]
The helicopter was stored
at EC Aviation’s hangar at Cape Town International Airport.
Mr Killik returned to Gauteng
where he and the applicant conduct
business. Brett Aarninkhof, the attorney of record for the
respondents who deposed to the answering
affidavit alleges that he
was then told by Ari Kraak of EC Aviation in early September 2016
that ATS was not paying rental in respect
of the lease and Mr Kraak
wanted payment from the owner of the helicopter. It was agreed
that a lease would be concluded
between EC Aviation and the first
respondent in respect of the storage of the helicopter at EC
Aviation’s hangar. That
lease agreement was concluded on
15 September 2016 and it is also attached to the answering affidavit.
Mr Aarninkhof alleges further
that the first respondent has had full
access to work on the helicopter as it pleases and even repainted it
at some point, as an
example. Same could not be said of the
applicant.
[13]
On 18 October 2016, Mr
Killik sent an email to Mr Kraak as follows:
‘ Hi Ari
For Clarity
The contents of this mail below are still unresolved and our Lien’s
are still in full force and effect.
We in terms of the ATO and Hangarage leases etc, may appoint
maintenance officers. I have appointed Aristide to remove the torque
meter.
Until such time as the financial matters have been resolved, we have
a Lien over the aircraft, even whilst in your hanger.
As we
entered into that lease with yourselves
.
We insure the aircraft and are in full possession of the aircraft
until released to the owner
.
Trust this clarifies’ (‘
Own
emphasis’
)
[14]
To which Mr Kraak
answered:
‘ Hi Jonathan
Your lease has expired, it was month to month and we have not
renewed it. The lease is now held with the owner of the
machine.
I am not in any position to comment,
but I will however not allow
anyone to remove any part of the helicopter in my hangar unless they
are licensed engineers from the
AMO that looks after the machine
.
I also will not allow anyone to remove anything from the machine
without consent of the owner
.
ECA will report anyone on our premisis (sic) removing anything
from the machine to the CAA and the SAPS
.
Trust you understand’ (‘
Own
emphasis’
)
[15]
These facts are in any
view material to the spoliation application and should have been
disclosed to the court when the
ex
parte
application was
brought. They were within the knowledge of the applicant. Mr
Joubert argued that the applicant was within
its rights to decide
which facts it required to place in the founding affidavit and
according to it those facts were not material
to the case it needed
to place before the court. In his view the allegation in paragraph 15
of the founding affidavit was sufficient.
[16]
He further submitted that
the applicant need not have physically held the property in order to
benefit from the
mandament
.
It must have had physical control or
detentio
.
He referred to the decision of De Villiers JP in
Moosa
v Construction Works
1958
(2) SA 334
(E) at 337A where the court held:
‘If I get permission from some person to push my car on his
premises and do so he does not hereby get physical control or
the
‘
detentio
’ of my car. To bring that about I
must make him the deposition or custodian of my car.’
[17]
Mr Joubert therefore
argued that parking the car in a garage or a helicopter in a hangar
does not deprive the applicant of its
detentio
.
Therefore, if the owner of the garage purports to revoke permission
to park, the applicant does not lose it
detentio
.
[18]
The facts that support
possession in the present matter, in Mr Joubert’s view, are
that the applicant was in full possession
of the helicopter when Mr
Killik flew it to Cape Town in July 2016. He, Mr Killik
arranged for the storage of the helicopter
with EC Aviation.
The respondents removed the helicopter from EC Aviation and took it
to another hangar without the applicant’s
consent.
[19]
Apart from the fact that
these two facts originate from the answering affidavit, they do not
support a case of possession by the
applicant, in that they leave out
important detail, which is that (a) the entity that entered into a
lease agreement with EC Aviation
to store the helicopter represented
by Mr Killik was not the applicant but ATS, ATS is not the applicant,
(b) Mr Killik flew back
to Gauteng when he and the applicant conduct
business after he flew the helicopter to EC Aviation and (c) the
lease agreement was
month to month and it expired after non-payment
and was not renewed.
[20]
Mr Joubert argued that a
link must be made between the applicant and ATS because Mr Killik was
associated with both entities.
I do not see how that can be
done, ATS is not the applicant and the lease agreement made no
mention of the arrangement being made
by or on behalf of or in
connection with the applicant. The lease with ATS was, in any event,
terminated and at the time of the
removal of the helicopter the lease
was no longer with ATS but with the first respondent. So, from the
word go, i.e. since July
2016, the helicopter was not stored in EC
Aviation’s premises at the instance of the applicant. Nowhere
in the papers does
one find support for that proposition. When Mr
Killik wanted to seek clarity, and assert his lien he was
categorically told by
Mr Kraak that ‘
I will not allow
anyone to remove anything from the machine without consent from the
owner… ECA will report anyone on our
premisis (sic) removing
from the machine to the CAA and the SAPS…’
[21]
To suggest that the lease
agreement is irrelevant in this particular case is unsustainable. Mr
Kraak asserted EC Aviation’s
physical control of the helicopter
and he was not contradicted by Mr Killik. Clearly once the
helicopter was flown by Mr
Killik and the applicant to Cape Town and
he went back to Gauteng where he and the applicant conduct business,
it had been hangared
with EC Aviation. Evidently, the applicant has
not placed any facts before this court to suggest that it had full
access and
detentio
to the helicopter such as for
instance, that it could go to the premises where the helicopter was
stored at any time since July
2016, to conduct repairs or do whatever
else that needed to be done or taken out of the helicopter as it
pleased. Such facts
could have been useful. As was held in
Ex
Parte Van der Horst: In Re Estate Herold
1978
(1) SA 299
(W) at 301 F – G
‘...a person has
detention even if he leaves the property but is capable of assuming
occupation at any time. What is required
is that the person in
question should manifest the power at his will to deal with the
property as he likes and to exclude others.’
[22]
Mr Joubert attempted to
argue that the applicant had keys to the helicopter, which case is
not made out in the applicant’s
founding papers. The applicant
also alleged that it was in possession of a logbook. I am not
convinced that being in possession
of a logbook amounted to
possession of the helicopter.
[23]
Apart from the bare
allegation in paragraph 15 of the founding affidavit that the
applicant was in possession of the helicopter
and the helicopter was
stored at EC Aviation in Cape Town, there are no facts presented by
the applicant proving that it was in
possession of the helicopter
before its removal. The allegation in paragraph 15 is insufficient.
The applicant quite clearly left
out material facts which, if
disclosed to the court hearing the
ex
parte
application,
might have led to a different conclusion. For these reasons, the
applicant’s application must be dismissed and
the rule nisi be
discharged.
[24]
As to costs, the first
respondent asked for costs on the scale as between attorney and
client on the basis of the applicant’s
failure to disclose
material facts to the court in its
ex
parte
application,
which it had a duty to do, in the absence of the other party in
court. The first respondent submitted that the court
e ought to show
its displeasure with such conduct.
[25]
I am satisfied that a
proper case had been made out for costs to be awarded against the
applicant on a scale as between attorney
and client. As Mr Kantor
submitted, the court need not find that the conduct was fraudulent or
intentional. I conclude, therefore,
with the court’s
observations in the decision of
Schlesinger
v Schlesinger
1979
(4) SA 342(W)
at 354 D that by making such a finding, ‘
I
am not …imputing fraudulent conduct to either the respondent
or her attorney, but a reckless disregard of a litigant’s
duty
to a Court in making a full and frank, disclosure of all known facts
which might influence the Court in reaching a just conclusion
.’
[26]
In the result, I make the
following order:
1.
The
rule nisi issued in the above matter on 3 November 2016 is discharged
and the interim relief granted by this Court on 3 November
2016 is
hereby set aside.
2.
The
Sheriff of this Court, or his lawful Deputy, is authorised and
directed to return the Eurocopter Gazelle helicopter with
registration
number SA341G (‘the helicopter’) held at
Hangar / Plot 10, Convair Road, Cape Town International Airport (or
wherever
it may be found) to the Second Respondent at Hangar 2,
Douglas Road, General Aviation Area, Cape Town International Airport.
3.
The
Applicant, and any persons present at Hangar / Plot 10 are ordered
to:
3.1
Immediately hand over the
helicopter to the Sheriff, his lawful Deputy and/or First Respondent;
3.2
Inform the Sheriff, his lawful
Deputy and/or First Respondent to whom the helicopter has been
delivered as well as the location
of the helicopter.
4.
The
costs of this application are to be paid by Applicant on the scale as
between attorney and client.
___________________
N
P BOQWANA
Judge
of the High Court
APPEARANCES
For
the Applicant
: Adv.
Z Joubert
Instructed
by
: Martin Pike Incorporated
c/o Smith & De Jongh
Attorneys, Bellville
For
the First Respondent : Adv.
A Kantor
Instructed
by
: Aarninkhof Attorneys,
Cape Town