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[2014] ZAGPJHC 39
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Andalis v Bartman and Others (2014/8100) [2014] ZAGPJHC 39 (12 March 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG)
CASE
NO: 2014/8100
DATE:
12 MARCH 2014
In
the matter between
MICHAEL
ANDALIS APPLICANT
and
JOHANNA
JACOBA
BARTMANN FIRST
RESPONDENT
CHARISSA
BARTMANN
SECOND
RESPONDENT
CILLIERS
BARTMANN
THIRD
RESPONDENT
DOUBLE
STARS TRADING 612 CC
t/a
ORANGE CAR WASH
FOURTH
RESPONDENT
Practice - urgent
application - mandament van spolie – requirements - possession
and control of business premises - employee
of business not
qualifying for protection under the mandament - mutually destructive
versions-approach to based on Plascon Evans
rule - respondents’
version accepted for purpose of deciding application -applicant
failed to establish a case - application
dismissed with costs
J
U D G M E N T
VAN OOSTEN J:
[1] This is an
application in which the applicant, by way of the
mandament van
spolie,
seeks to be restored into possession and control of the
business known as Orange Car Wash (the business). The application was
launched
by way of urgency and came up for hearing before Moshidi J
on 6 March 2014. The respondents opposed the application and counsel
appeared of their behalf at the hearing. The learned judge issued an
order in terms of which the matter was removed from the roll,
times
for the filing of further affidavits specified and costs reserved.
The respondents’ answering affidavit and the applicant’s
reply thereto were subsequently delivered and the matter was enrolled
for hearing in the urgent court before me. I am satisfied
that
sufficient urgency exists to warrant the hearing thereof today.
[2] The applicant and the
first respondent were formerly married but 4 years later divorced in
2010. The first and second respondents
are siblings born from the
first respondent’s previous marriage. The essence of the
dispute between the parties concerns
the business and the applicant’s
relation thereto. The business is owned by the fourth respondent (the
CC).
[3] The versions of the
parties are diametrically opposed and mutually destructive. The
applicant states that the business commenced
in September 2009 in
terms of an oral agreement concluded between the applicant and the
respondents. In terms of the agreement
the business would be owned by
the CC and the parties would share the membership interest in the CC
as follows: the applicant and
the first respondent 35% each and the
third and fourth respondents, 15% each. The applicant was further to
manage and control the
business. After the divorce the applicant
states, and in terms of an ‘arrangement’ between the
applicant and the first
respondent, the
status quo
remained.
On a date, which is not mentioned, the applicant was summoned to a
meeting at the OR Tambo International Airport which
took place
between him, the first, second and third respondents, the first
respondent’s erstwhile husband and two other persons.
The
applicant was accused of having embezzled the funds of the business
and a demand was made for the immediate handing over of
the keys of
the business as well as its cell phone. He says he was intimidated
and threatened with police interference and action
to such extend
that he feared for his life which coerced him to oblige. Having
handed over the keys and the cell phone he maintains
that he has been
deprived of the possession and control of the business in respect of
which he seeks restitution, relying on the
mandament van spolie
.
[4] The first, second and
third respondents save for admitting that the applicant is no longer
employed by the CC, deny all material
allegations made by the
applicant. The first respondent states that she in fact, on her own,
started the business in 2007 when
the CC was registered of which she
was and still is the only member. The applicant was appointed as the
manager of the business
and entrusted with the day to day running and
management thereof. She denies the agreement relied on by the
applicant or that he
or the second and third respondents were at any
time members of the CC. She, on a date, place and in a manner which
is not stated,
confronted the applicant with having misappropriated
funds of the business which she states he readily admitted. She then
summarily
terminated his services as an employee of the CC. The first
respondent accordingly disputes the applicant’s right and title
in and to the business or membership in the CC.
[5] The
Plascon
Evans-
rule finds its application in this case. Counsel for the
applicant submitted that the respondent’s version ought to
rejected
out of hand for the following two reasons: firstly,
reference is made to the applicant’s salary slip in the
answering affidavit
and that a copy thereof was attached but no such
document has been annexed and, secondly, one of the persons alleged
by the first
respondent to have been present at the Airport meeting,
one Chris Janos, has deposed to an affidavit annexed to the
applicant’s
reply, denying that he was present. In regard to
the missing annexure counsel for the respondents confirmed that no
such document
existed and that a mistake occurred in the answering
affidavit. Although not satisfactory, I am not satisfied that this
aspect
takes the matter any further. As for Janos, I do not think his
mere denial is sufficient to serve as a basis for a credibility
finding. The general rule that credibility ought not to be decided on
affidavits, in my view applies.
[6] The respondents’
version that the applicant was merely an employee of the CC who was
summarily dismissed following upon
his admitted dishonesty, must
accordingly be accepted. An employee does not have the right to
possession as is required for purposes
of the
mandament van spolie
(see
Venter v Livni
1950 (1) SA 524
(T);
Greaves and
others v Barnard
2007 (2) SA 593
(C)). The fate of the
application however, in my view, falls to be decided on a further
ground which is that the applicant has
simply failed to establish the
rights which he now seeks to protect. In the founding affidavit the
applicant states that the agreement,
which I have alluded to, was
concluded and the terms thereof are set out. What is seemingly
missing from the affidavit is whether
those terms were in fact
implemented. On this score the first respondent, apart from disputing
the agreement, relies on the a CK2B
form issued by the Companies and
Intellectual Property Commission which shows that she is the sole
member of the CC. In his reply
the applicant admits the contents of
the form but then attempts to save the day in stating that he ‘in
all actuality’
was a member with a 35% member’s interest.
The reason belatedly proffered for the registration of the first
respondent’s
100% member’s interest was his bad credit
record at the time which he maintains would have constituted an
obstacle in obtaining
a lease for business premises. In this regard
the applicant adds that he ‘reserves his rights’ to claim
rectification
of the CIPC records. The essential and opportune time
for having raised and dealt with this aspect was in the founding
papers.
The applicant should not be allowed and cannot make out a
case in the replying affidavit. In passing it should be mentioned, in
any event, that the applicant’s version in the reply clearly
contradicts the allegations in the founding affidavit that the
second
and third respondents were also, in terms of the agreement, to become
members of the CC.
[7] In summary: the
applicant has failed to establish his entitlement to possession and
control of the business on the basis relied
on and in consequence
that he was spoliated. It follows that the application falls to be
dismissed.
[8] In the result the
following order is made:
1.
The application is dismissed.
2.
The applicant is ordered to pay the costs of the application.
_________________________
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
COUNSEL
FOR APPLICANT
ADV D BLOCK
APPLICANTS’
ATTORNEYS
STEVE IOULIANO ATTORNEY
COUNSEL
FOR RESPONDENTS
ADV SD MARITZ
RESPONDENTS’
ATTORNEYS
PRETORIUS INC
DATE
OF HEARING
12 MARCH 2014
DATE
OF JUDGMENT
12 MARCH 2014