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[2014] ZAGPJHC 36
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E Duma Trading Enterprises CC v Scania Finance Southern Africa (Pty) Ltd (13/43964) [2014] ZAGPJHC 36 (28 February 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
CASE
NO: 13/43964
In
the matter between:
E
DUMA TRADING ENTERPRISES
CC
Applicant
and
SCANIA
FINANCE SOUTHERN AFRICA (PTY)
LTD
Respondent
J
U D G M E N T
N
F KGOMO, J
:
INTRODUCTION
[1] On
10 December 2013, after listening to full argument in this
application and thoroughly considering the issues therein raised,
I
handed down the following order with a promise to deliver the reasons
for the order in due course:
1.1
“
The
application is dismissed with costs;
1.2
Reasons
will follow.
”
[2]
Hereunder follows the reasons for the above order.
ORDERS
SOUGHT IN NOTICE MOTION
[3]
The applicant issued or launched this application on an urgent basis
for the following orders:
3.1
That
the application be enrolled and heard as an urgent application in
terms of Rule 6(12) of the Uniform Rules of Court and the
court
hearing this matter dispense with strict compliance with the forms
and service and grant the applicant condonation for non-compliance
with both Rule 4 (service) and Rule 6 (notice and time limits) to the
extent necessary;
3.2
That
the applicant’s possession of the truck, SCANIA 2012, G460, CA
6x4 MHZ Opicru, Engine No. DC 13106L018198553 and Chassis
No
9BSG6X40003813705 (“
the
truck
”)
with registration letters and numbers [……] be restored
to it;
3.3
That
the respondent deliver/surrender the truck and its keys to the
applicant at the applicant’s address within twelve (12)
hours
of this order;
Alternatively
,
3.4
That
pending the finalisation of the dispute between the applicant and the
respondent –
3.4.1
The
respondent restore possession to the applicant of the truck or an
equivalent truck;
3.4.2
The
respondent deliver or surrender the truck or its equivalent and its
keys to the applicant at the applicant’s address within
twelve
(12) hours of this order.
3.5
That
the respondent be ordered to pay the costs of this application on a
punitive scale of attorney and own client; and
3.6
Granting
further and/or alternative relief.
[4]
The application is opposed by the respondent who, in addition to
filing its answering affidavit, also filed a conditional counterclaim
in the following terms:
4.1
That
the applicant be ordered to forthwith place the respondent in
possession of the truck; and
4.2
That
the applicant be ordered to pay the costs of the applications.
THE
PARTIES
[5]
The plaintiff is a close corporation duly registered and incorporated
in terms of the Close Corporations Act of the Republic
of South
Africa (“
RSA
”)
with its registered address situate at [……].
[6] Mr
Elijah Duma is an adult male person and also the sole and managing
member of the applicant, residing at the same address
as the
plaintiff’s.
[7]
The applicant’s core business is freight transport.
[8]
The respondent is a limited liability company duly registered and
incorporated under the company laws of the RSA, with its principal
place of business situate at […..].
ESSENCE OF THE
APPLICATION
[9]
The applicant contends that its peaceful and undisturbed possession
of the truck was spoliated by the respondent by removing
the truck
from its possession and depriving it permanently of its possession.
[10]
The respondent denied spoliating the applicant. It instead
argued and submitted that the applicant willingly and/or voluntarily
returned the truck to it because it was unable to meet its financial
obligations, namely the agreed upon instalments. Among other
things,
like repudiating its lease agreement with the respondent by its
conduct.
FACTUAL
MATRIX
[11]
The two parties relayed diverging stories about what actually
happened in the lead up to this application.
Applicant’s
version
[12]
According to the applicant, it entered into an agreement with the
South African Breweries Ltd (“
SAB
”)
in November 2012 for the applicant to deliver SAB’s products to
various outlets and businesses. The scheme
followed in terms of
the above agreement is called the “
SAB
Owner-Driver Scheme
”.
[13]
In order to operate optimally and to efficiently execute its
obligations in terms of the above agreement, the applicant sourced
the truck, to wit, a new Scania truck bearing the identifying
features set out hereinbefore in terms of a written Financial Lease
Agreement (“
the lease agreement
”).
[14]
According to the plaintiff further, it has never defaulted on its
obligations in terms of the lease agreement and has always
timeously
fulfilled all its obligations in terms of the lease agreement,
including but not limited to paying lease payments, taking
out and
paying for services and maintenance responsibilities as well as
taking out insurance for the truck.
[15]
It is the applicant’s case further that despite the above lease
agreement, it continually looked for new and/or more
profitable
freight contracts as in its assessment through its managing member,
the SAB Owner-Driver Scheme was not profitable and
had onerous
conditions that stifled growth. It was in that context, offered a
more lucrative contract by another company which
it was to start with
from November 2013.
[16]
The applicant refused to disclose the names of the new partner or
contractor, invoking confidentiality clauses in the agreement
it had
signed with that partner or contractor.
[17]
It then allegedly gave the SAB a month’s notice of termination
of their Owner-Driver Scheme agreement on 7 October 2013.
[18]
It awaited the notice period to expire in November 2013 before it
started operating on the new secretive project or agreement.
The
applicant did not specify the dates relevant to the conclusion of
this new agreement or when it intended specifically to start
operations at the new venture.
[19]
It should be mentioned at this juncture that the applicant’s
lease agreement with the respondent remained in place and
fully
operational or in force.
[20]
According to the applicant further, on 28 October 2013, its managing
member was invited to the offices of the respondent by
one Bennie
Vorster (“
Vorster
”),
a representative of the respondent. Upon his arrival there, after
parking the truck outside the respondent’s business
premises,
he was told by Vorster that the respondent was repossessing the truck
because it (applicant) had cancelled the freight
agreement with SAB.
Vorster then demanded the truck keys and he handed them over to him,
after unsuccessfully trying to plead
with Vorster not to repossess
the truck and pointing out to him how arbitrary and unjust as well as
harmful to the applicant’s
business that conduct was.
[21]
Mr Duma then approached his attorneys with a view to the latter
securing the return of the truck as the new freight deal with
the new
people needed the truck for the agreement to become
perfecta
.
[22] According to the
applicant, the respondent responded to the above by informing it that
it was proceeding to dispose of the
truck in order to limit its or
any financial losses that may be incurred.
Respondent’s
version
[23]
According to the respondent, it was approached by the SAB as a part
of a black economic empowerment initiative to assist SAB’s
drivers at the time to become the so-called “
Owner-Driver
Operators
”. That was during
the early part of the year 2011. The proposal suggested by SAB
was that each (or some) of their
existing drivers would be assisted
by a business advisor to set up a company or close corporation so
that and to, on a contractual
basis, render freight or transport
services to SAB.
[24]
The respondent was to lease its vehicles on subsidised terms to the
entities owned by the individual drivers formerly employed
by SAB,
with the
proviso
or condition that SAB make payment of the rentals due in terms of the
lease agreement for and on behalf of the entities concerned
directly
to the respondent.
[25]
The respondent was initially not prepared to participate in this
scheme but was pacified by the fact that SAB will pay the
rentals on
behalf of the entities. It entered into 52 lease agreements with
numerous entities beneficially owned by the drivers
formerly employed
by SAB. The terms were extremely generous: instead of the usual
four year lease terms, these entities’
lease periods were seven
years.
[26] The applicant is one
of those entities. It concluded the lease agreement with the
respondent on or about 5 December 2012.
[27]
The applicant’s lease agreement, just like the other 51
contained termination provisions. As part of the lease agreement
a
facility letter was issued to the applicant. It provided in no
uncertain terms that the respondent “
shall
”
be entitled to cancel the lease agreement should the contract between
the applicant and SAB be cancelled. The material
part of the
facility letter reads as follows:
“
It
is explicitly understood that the basis of providing the finance
lease facility stated herein is based on the 10 year owner driver
transporters contract from South African Breweries. Should this
contract be cancelled, breached or should E DUMA TRADING
ENTERPRISES
CC choose to no longer operate on this contract, it will be viewed as
a breach of the finance lease agreement and SFZ
will be entitled to
enforce immediate termination of the finance lease agreement at its
exclusive choice.
”
[28]
The applicant, so continued the respondent, inexplicably and/or for
reasons unknown to the applicant, elected to voluntarily
terminate
his cartage agreement with SAB, which fact came to the knowledge of
the respondent on 21 October 2013 through an e-mail
received from one
Dreyer du Bruyn, a customer service manager in the employ of SAB.
The respondent elected to terminate the
lease agreement on 22 October
2013 through a notice sent to the applicant’s business advisor
or go-between between it and
the applicant, which notice was also
sent to the plaintiff’s sole member (Mr Duma) at his business
address at the SAB depot.
The applicant acknowledged receipt of
this notice by referring to it in a letter (of demand) it sent to the
respondent dated 8
November 2013.
[29]
The facility letter also provides that the respondent’s general
terms and conditions apply to the lease agreement concluded
with the
applicant.
[30]
According to the respondent further, as at 28 November 2013 when its
answering affidavit was deposed to, the applicant had
last paid its
monthly rental for October 2013, thus having breached the lease
agreement further. No tender of the arrear amounts
totalling the
amount of R17 057,14 as at that date was made, presupposing that the
applicant was intending to and even using the
truck without paying
for it, which was also a specific term of the lease agreement, the
breaching whereof entitled the respondent
to cancel the lease
agreement.
[31]
After the lease agreement was terminated the respondent demanded the
return of the truck, which demand or request was ignored
by the
applicant. The purpose of the applicant’s managing
member’s call to present himself at the respondent’s
offices was to afford him the opportunity to substantiate to the
respondent whether it would be financially wise or desirable that
he
be allowed to re-negotiate the lease over the truck, which he was
obliged to return to the respondent because the lease over
it had
been terminated.
[32]
Unannounced and without having made an appointment, Mr Duma rocked at
the respondent’s Alrode offices on 28 October 2013.
He
met with Vorster of the respondent. The truck was parked outside the
offices in the street on the kerb.
[33]
According to the respondent, this meeting went as follows:
33.1
Mr
Duma indicated that he had brought the truck in as requested and that
he wanted to conclude a new lease agreement with the respondent
in
respect of the new freight or cartage agreement he had signed.
33.2
Vorster
explained to him that that was a completely new deal to be negotiated
requiring fresh processes before a decision could
be taken whether
that new deal could be granted or concluded, and that the return of
the truck had nothing to do with that process.
33.3
Mr
Duma accepted the explanation offered to him by Vorster and indicated
that in those circumstances he would hand over and leave
the truck
with the respondent. At Vorster’s request, Mr Duma on his
own went outside in the street and drove the truck
into the yard of
the respondent, parking it next to the maintenance bays. He
then came back to the boardroom wherein he met
with Mr Vorster and
where the latter had remained seated. He handed over the
truck’s keys to Mr Vorster. He then left
after indicating that
he will come back and re-apply for a new lease agreement the
following week.
33.4
It
occurred that at that stage, the applicant had already sent in a new
credit application to its business advisor for transmission
to the
respondent.
[34]
Consequently, according to the respondent, contrary to the
applicant’s claim that the respondent spoliated it of the
truck, the plaintiff surrendered the truck to the respondent of his
own volition.
[35]
The respondent submitted further that should it be that there is any
doubt as to the cancellation of the lease agreement at
the time it
did, it was cancelling it. Furthermore, the respondent was entitled
to cancel the lease agreement and concomitantly
repossess the truck
irrespective of whether the lease agreement was cancelled or not.
[36]
Alternatively, in the event of this court finding that there is any
merit in the applicant’s claims of being spoliated,
then the
respondent asks that orders be granted to it in terms of its
counter-application.
ANALYSIS
OF ISSUES RAISED
[37]
This Court finds that there is sufficient urgency justifying this
matter being heard on an urgent basis.
[38] The rental or lease
agreement contain at the end of the first page thereof the following
endorsement:
“
This
agreement comprises this Contract Schedule and Terms and Conditions.
Please ensure that you have read and fully understood
the Terms and
Conditions and that you undertake to be bound by those terms.
”
[39]
The terms and conditions form part of the papers filed of record
herein.
[1]
[40]
The applicant attempted to claim that he was not aware of the
facilitation letter mentioned above, claiming further that a
similar
letter he was aware of was another that is attached to the papers
herein at folio 18. Unfortunately the document at folio
18 is
unsigned or not fully signed, unlike the facilitation letter. It also
looked like a price of scrap paper.
[41]
The letter from the respondent to the applicant terminating the lease
agreement dated 22 October 2013 reads as follows where
it matters:
“
RE:
TERMINATION OF FINANCIAL LEASE AGREEMETN AS LISTED BELOW
Dear
Sirs,
1.
…
2.
Based
on the formal notification that your Owner Driver Cartage Agreement
with South African Breweries has been cancelled resulting
in the
payment stream required for the fulfilment of your Scania Finance
Southern Africa (Pty) Ltd financial obligations ceasing,
we have
elected to terminate the agreement with you.
3.
In
the circumstances, we call upon you to immediately deliver up
possession of our equipment, being as listed below. Our equipment
should be returned to us at the nearest Scania branch or SAB depot,
by no later than close of business, 22
nd
October 2013.
”
[42]
The equipment is described in this letter at the bottom. It is the
truck in question here.
[43]
The respondent emphasised that far from having taken the vehicle from
the applicant, the applicant surrendered the vehicle
to the
respondent of his own volition and that Mr Duma did so as he hoped to
conclude a new lease or rental agreement with the
respondent.
As such, the hand over of the truck by the applicant to the
respondent was not unlawful and cannot constitute
spoliation.
[44]
The respondent’s primary defence is thus a denial of
spoliation.
[45]
The law relating to
mandament
van spolie
(spoliation) is succinctly summarised in
Scoop
Industries (Pty) Ltd v Langlaagte Estate and GM Co Ltd (In Vol
Liqui
)
[2]
where the court held as follows at 99-100:
“
Two
factors are requisite to found a claim for an order for restitution
of possession on an allegation of spoliation. The
first is that
the applicant was in possession and the second that he has been
wrongfully deprived of that possession 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 deprivation, the applicant has a 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.
”
[46]
The guiding words here are “
wrongful
and/or “
illicit
”
deprivation.
[47]
The evidence in this application, contrary to the plaintiff say-so
that he was illicitly deprived of possession of the truck,
point in
the other direction. The lease agreement between the applicant
and the respondent over this truck had been terminated.
There is
proof of such termination. The applicant knew at the time he
entered into the lease agreement with the respondent
that the lease
or use of this truck was conditional on it undertaking the cartage
contract in terms of the freight agreement it
had signed with the SAB
and that should this agreement come to an end for one or other
reason, the lease agreement would be cancelled.
[48]
The applicant, proceeded to cancel his freight agreement with SAB as
he had already negotiated a more lucrative contract elsewhere.
This
was diametrically contrary to the clear terms of his agreement with
the respondent.
[49]
Furthermore, the respondent did not chase after the applicant and
forcibly or by sleight of hand unlawfully or wrongfully deprived
it
of its possession of the truck. He informed the applicant of its
cancellation of the lease agreement due to its (applicant’s)
breach of the terms thereof. The applicant’s Mr Duma went
to talk to the respondent’s employees who painstakingly
explained to him the implications of the cancellation. He (applicant)
on his own, went outside the respondent’s premises
to where he
had parked the truck, drove it into the yard and handed over the keys
to the respondent’s employee who was all
the time seated inside
the boardroom. There is also evidence that the applicant had at
that stage understood and agreed with
the reasons why it had to hand
in the truck to the respondent. At this stage further, it had already
submitted through its agent
or business advisor, a new application
for a lease that would involve the new company he was to undertake
freight services for.
That in my considered view points to the
applicant having clearly known that the truck had to be handed in or
he ought to have
known, otherwise he would not have made a fresh
application for the re-lease of the same truck.
[50]
From the facts laid before this Court by both parties as well as the
probabilities inherent herein, it is my finding that no
spoliation
took place in this case. The principles relating to self-help as
enunciated in
Nino
Bonino v De Lange
[3]
relating to the taking of the law into one’s hand do not apply.
There cannot be any question of any restoration of the so-called
“
status
quo ante
”.
[51]
The applicant of his own accord handed over the truck to Mr Vorster
of the respondent.
[52]
It is common cause that had the respondent favourably considered the
applicant’s new lease application, this matter would
not have
been before t his Court. It is an inescapable conclusion that these
spoliation proceedings were resorted to as an after-event
after
failing to secure a new lease agreement. The applicant does not
disclose whether or not his new partner or cartage contractor
was
also prepared to offer the respondent similar or comparable terms
like paying the truck rentals directly to the respondent
and on
heavily subsidised terms as were offered by SAB.
[53] I
consequently find it unnecessary to proceed dealing with the rest of
the principles under pinning
mandament
van spolie
especially when the common
facts and/or relevant facts of this matter are anything to go by.
[54]
The applicant stands to fail in its application, which is the exact
finding I arrived at when the initial order pending reasons
was
handed down on 10 December 2013.
ORDER
[55]
Consequently, the order granted on 10 December 2013 is hereby
confirmed. For the sake of convenience, it is as follows:
“
The
application is dismissed with costs.
”
__________________________________________
N
F KGOMO
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
FOR
THE APPLICANT
MR N S SEKHU
INSTRUCTED
BY SAM
SEKHU ATTORNEYS
MARSHALLTOWN,
JOHANNESBURG
TEL
NO: 011 492 2228
FOR
THE RESPONDENT
ADV H H VAN DER MERWE
INSTRUCTED
BY
SENEKAL SIMMONDS INC
c/o
MONTE COETZEE INC
MARKET
STREET, JOHANNESBURG
TEL
NO: 011 450 3084
DATE
OF HEARING
10 DECEMBER 2013
DATE
OF JUDGMENT
28 FEBRUARY 2014
[1]
At
paginated folios 47-52.
[2]
1948
(1) SA 91
(W).
[3]
1906
TS 120
, at 122.