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[2016] ZAGPJHC 207
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Cedar Park Properties 39 (Pty) Ltd v Strawberry Worx Pop (Pty) Ltd (21068/2016, 21594/2016, 23878/2016, 18810/2016) [2016] ZAGPJHC 207 (1 August 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
OF
INTEREST TO OTHER JUDGES: YES
REPORTABLE:
NO
REVISED.
1 August 2016
CASE
NOS: 21068/2016
21594/2016
23878/2016
(18810/2016)
In
the matter between:
CEDAR
PARK PROPERTIES 39 (PTY) LTD
Applicant
and
STRAWBERRY WORX POP
(PTY) LTD
Respondent
JUDGMENT
SPILG,
J:
INTRODUCTION
1.
Cedar Park Properties
39 (Pty) Ltd (‘
Cedar
Park’
) is the
owner of the property comprising the block at the corner of Rivonia
Road and West Street Johannesburg, generally known
as the Sandton
Gautrain Station.
2.
Strawberry Worx
Pop (Pty) Ltd (‘
SW
’)
is an outdoor advertising company which markets and sells advertising
space. In the judgment of van Oosten J to which reference
will be
made, the learned judge referred to SW as “
a
turnkey outdoor advertising solution agent in respect of advertising
on billboards, building wraps and hoarding”
While
Cedar Park contends that SW simply markets Cedar Park’s site as
its agent, SW contends that it concludes agreements
with property
owners for the right to install advertising structures and then sell
advertising space on these structures to prospective
advertisers and
that this was the basis upon which it contracted with Cedar Park.
In
spoliation proceedings brought by SW against Cedar Park and Fusion
Gen Communications (Pty) Ltd (“Fusion Gen”)
[1]
in June 2016 under case number 18810/2016 van Oosten J held
that the relationship was not one of agency as contended for
by Cedar
Park but one “
analogous
to those of a sub-lessee”
[2]
.
3.
The
learned judge pertinently refrained from deciding on the duration of
the agreement since it was unnecessary for the purposes
of a
spoliation application
[3]
. I
will return to this.
4.
This case is about an
applicant owner seeking to regain use and possession of its property
after a court found that it had unlawfully
spoliated the respondent.
It attempted to do so by way of an interim interdict after the
respondent had allegedly regained possession
and use of the property
pursuant to the spoliation order and by applying for leave to appeal
the spoliation order.
In
addition Cedar Park seeks an urgent eviction order against SW and in
yet another (and earlier) application, based on a vindicatory
right,
the return of an advertising canvas taken from the property by SW.
5.
Aside from opposing the
relief sought by Cedar Park, SW has brought a section 18 application
for leave to execute its spoliation
order. It also contends that
there was a further spoliation which together with, or independently
of, the first spoliation precludes
Cedar Park from proceeding with
its eviction application and seeks appropriate relief.
An
overarching challenge by SW is that none of the Cedar Park’s
applications is urgent.
6.
Subsequent to the grant
of the spoliation order on 17 June 2016 a number of orders have
already been granted, all based on urgency.
They are:
a.
An ex parte application
under case no 21068/2016 brought on 22 June 2016 by Cedar Park to
vindicate a Nike sign admittedly removed
by SW from the advertising
site which was the subject of the spoliation order;
b.
An application under
case no 21594/2016 brought on 24 June 2016 by Cedar Park for an
interdict preventing SW from entering the advertising
site which was
the subject of the spoliation order;
c.
A counter-application
brought under the last mentioned case number on 30 June 2016 by SW
which was based on an alleged further spoliation,
on 24 June 2016, of
their possession of the advertising site and the advertising H&M
and Alexander Forbes signs.
In
addition SW sought, in the counter-application an order under
section
18
of the
Superior Courts Act, 10 of 2013
to enforce the spoliation
orders obtained pending the outcome of an application for leave to
appeal;
d.
An application for
eviction under case no 23878/2016 brought on 11 July 2016 by Cedar
Park against SW.
THE
SPOLIATION APPLICATION (CASE NO 18810/2016)
7.
On 12 May 2016 Cedar
Park through its attorneys addressed a letter to SW claiming that it
would bring an urgent application to remove
certain identified
advertising signs that had been placed on the rooftop of the Gautrain
Station if SW did not do so by no later
than 16 May. These were the
advertisement signage of Alexander Forbes on one area and of H&M
on another area of the rooftop.
8.
Cedar Park did not
bring a court application but on 29 May removed the signage which
resulted in the urgent spoliation application
brought by SW on 2
June. It is unnecessary to decide whether this was because it
envisaged a dispute of fact arising from the way
transactions had
been conducted between them or because it took the view that the
relationship was one of agency and that SW had
no possessory rights.
9.
On 17 June 2016 my
brother van Oosten J granted an urgent spoliation order in favour of
SW (the then applicant) against Cedar Park
(then the first
respondent).
In
its terms Cedar Park was ordered to “
forthwith
restore the applicant into possession of
the
advertising space
and advertising signs of Alexander Forbes and H&M”
(emphasis added)
10.
The
court identified two distinct agreements. The one was the written
agreement which terminated on 15 November 2015. In the
judgment
[4]
the court referred
to the subsidiary disputes concerning whether the written
agreement between the parties, which in
its terms related
exclusively to an Alexander Forbes advertisement sign was de facto
renewed by the conduct of the parties. The
conduct relied on was the
delivery in November 2015 to Cedar Park, without demur, of a new
advertising agreement concluded by SW
with Omnicom Media Group SA
(Pty) Ltd which extended the existing Alexander Forbes advertisement
campaign through to December 2016.
The effect of the agreement
between Omnicom and SW was that the Alexander Forbes signage would
remain in place after November 2015.
The signage was removed by Cedar
Park some six months later on about the 29
th
May 2016, which is one of the acts which precipitated the spoliation
application.
11.
The
court found that the agreement for the H&M sign arose from a
distinct oral agreement concluded during September 2015 for
an
intermittent campaign that was to end on 31 May 2016. The court
relied on a concession by Cedar Park that it had removed the
H&M
sign at least a day prior to the agreement’s expiry date
[5]
.
12.
Adv Fisher
for Cedar Park contended that van
Oosten J had decided that there was no umbrella agreement, only a
written agreement that had been
extended from 15 November 2015.
13.
I am prepared to accept
Adv Fisher’s submission that this court would be bound to
respect the
ratio
of van Oosten J on the basis of issue estoppel. It is however
necessary to determine whether the judgment included a finding that
there was only this written agreement governing the rights between
the parties or that SW had only relied on this agreement as
embodying
the entire relationship between the parties.
14.
I should add that at
the commencement of the argument the contention advanced by Cedar
Park was that the written agreement was the
only one governing the
relationship in respect of all sites and that, by reason of its
non-variation and sole memorial clauses,
SW cannot contend for any
verbal variations or extensions. The position changed when
Adv
Peter
for SW
demonstrated that the written agreement of 15 November 2014 could
only apply to the Alexander Forbes signage erected in
one area (an L
shape on the South Eastern corner of the rooftop facing part of
Rivonia Road and part of West Streets) and not any
other area,
whereas the H&M sign dwarfed it in size and ran effectively along
the entire western side of the rooftop. I should
add that it was
never suggested by either party that, in its terms, the November 2014
written agreement could be extended beyond
the physical area where
the Alexander Forbes’ signage was installed; which was only a
part of the rooftop and certainly not
any of the site where the H&M
signage was located in terms of the admitted oral agreement between
Cedar Park and H&M.
15.
In my view there is a
conflation of a specific agreement SW contends for with a particular
advertiser and to which Cedar Park was
required to agree and the
broader oral master (or umbrella) agreement contended for by SW
between it and Cedar Park which also
governed the period of time
(express, tacit or implied) for which, and the area at the Sandton
Gautrain Station in respect of which,
SW could procure advertisement
signage.
16.
The argument then
proceeded on the basis that van Oosten J had dealt with the two
agreements both of which had now expired and therefore
found that
there was no umbrella oral agreement.
If
that were so then it would mean that the learned judge had overlooked
the contents of the founding affidavit and its annexures
in which SW
alleged that its Mr Moodley had concluded an oral agreement with Mr
Pillay of Cedar Park in November 2014 and in terms
of which the
former “
was
given the exclusive rights to market and sell advertising space which
implied the use and occupation on the property …”
.
17.
Moreover in its relying
affidavit SW persisted with its allegation that there was an umbrella
oral agreement in respect of the advertising
space for the entire
building and that the written agreement concerning Alexander Forbes
only related to one of at least the sites
on the rooftop of the
building.
18.
In my view it is
evident from the judgment as a whole that the court’s
consideration of the terms of the written agreement
relating to the
Alexander Forbes’ signage was limited to only those clauses
relevant for determining the true nature of the
relationship between
the parties.
19.
The court also clearly
understood that the written agreement related only to the Alexander
Forbes signage. The relevance of that
part of the judgment dealing
with SW setting up what the court termed a renewal of the agreement
was limited to its finding,
contra
the position adopted by Cedar Park, that SW “
was
in possession of both signs at the time the respondent’s act of
spoliation was committed”
.
20.
The court made it clear
earlier in the judgment that the H&M sign was erected pursuant to
an oral agreement concluded between
SW and Cedar Park in September
2015 and terminating on 31 May 2016. It however only went as far as
it was necessary to resolve
the dispute regarding whether SW
possessed the signs. Unlike the tacit extension of the Alexander
Forbes agreement which was not
conceded by Cedar Park, it had been
driven to concede (albeit earlier in correspondence) that it had
reached agreement with SW
in respect of the H&M advertisement
signage up to the end of May 2016.
To
this end the court found that the general terms contained in the
Alexander Forbes written agreement would have also applied in
relation to determining the rights SW enjoyed in respect of the
advertising space and the advertisement signs.
21.
In my view the court
did not, because (as it said) it was unnecessary to do so, to delve
into whether there was an oral umbrella
agreement concluded in
November 2014 dealing with the advertising area, the duration of the
agreement and if indefinite what type
of notice was contemplated. The
only relevance of the written agreement was that both parties
accepted that its terms were determinative
of the issues of access,
use, possession, and the characterisation of the relationship between
the parties. The court had regard
to the terms for that limited
purpose. In my respectful view, nothing more can be read into the
judgment.
22.
In order to find a
spoliation the court was however required to three findings. They
were:
a.
Whether the
relationship between the parties was one of agency or something akin
to a sub-lease;
b.
Whether SW could
contend in law that it had possession of both the advertisement
signage and the advertising space in issue; being
that advertising
space where the Alexander Forbes and H&M signs had been
installed;
c.
Whether as a fact Cedar
Park had deprived SW of possession.
23.
I have already
mentioned that, in regard to the first issue, the court found that
the relationship was akin to a sub-lease.
24.
On whether SW could
claim the legal rights of a possessor in respect of the advertising
space and signs, the court relied on various
clauses in the written
agreement and, applying
Nienaber
v Stuckey
1946 AD
1049
, held that SW was
“
expressly
entitled
to
use the advertising space and to have access at all reasonable times
for all purposes related to carrying out its mandate….
The
applicant was entitled to access the site which, only for practical
reasons, had to be pre-arranged, it was moreover in control
of and
responsible for the maintenance of the signs and, if requested to do
so, to remove the signs and clear the site”
[6]
.
25.
The court was at
pains to belabour the aspect of use and control of the advertising
space and the signs. At para 7 of the judgment,
and applying Bennett
Pringle (Pty) Ltd v
Adelaide Municipality
1977
(1) SA 230
(EC) at 236H-237H van Oosten J said that “
the
question of possession is one of degree”
.
The judge concluded that, minimal as it might be, the conduct of SW
demonstrated (again adopting the words of Addleson J in
Bennett
Pringle
) that it”
did exercise rights
or carry out activities consistent with the transfer to him of
control of the premises and that he did so with
the intention of
securing some benefit to himself.”
26.
The
court therefore concluded that SW was in possession of both the signs
and that part of the premises for the limited purpose
of using the
advertising space on the rooftop advertising platform erected on
Cedar Park’s building and where the Alexander
Forbes and H&M
signs were located. This is clear from the order that was granted
which was not limited to restoring possession
of the signs but
extended to restoring possession of the advertising space. Therefore
there can be no ambiguity on that score
[7]
.
27.
The third finding was
based on Cedar Park’s admission that it had taken down all the
signs and was precluding SW from putting
them up again. The court
said that this amounted to depriving SW of possession of both the
space and the signs.
28.
In
my view all the various interim applications before me readily
unravel once the order of van Oosten J is considered with reference
to whether SW took repossession of the advertising site and its
signs
[8]
; and if not, whether
Cedar Park complied with the terms of the order or frustrated
it, prior to bringing its application
for leave to appeal. I deal
with this next.
WHETHER
SPOLIATION ORDER IMPLEMENTED
29.
Van Oosten ordered
Cedar Park to ‘
forthwith
restore … possession of the advertising space and the
advertisement signs of Alexander Forbes and H&M’
.
I have attempted to demonstrate that the order is clear and
unambiguous.
30.
Until an application
for leave to appeal is actually served the order had to be respected.
The consequences of a spoliation are
clear from
Nino
Bonino v De Lange
1906
TS 120
at 122 where Innes CJ stated:
'It
is a fundamental principle that no man is allowed to take the law
into his own hands; no one is permitted to dispossess another
forcibly or wrongfully and against his consent of the possession of
property, whether movable or immovable. If he does so, the
Court will
summarily restore the status quo ante, and will do that as a
preliminary to any inquiry or investigation into the merits
of the
dispute.'
Prior
to citing this passage in
Ntshwaqela
Nicholas AJA in an obiter at 717E-G mentioned that:
‘
The
accepted principle is that the mandament van spolie envisages not
only the restitution of possession but also the performance
of acts,
such as repairs and rebuilding, which are necessary for the
restoration of the status quo ante. If, for example, a spoliator,
in
order to deprive a spoliatus of the possession of immovable property,
physically removes him therefrom and transports him to
a remote part
of the country in order to prevent him from resuming possession,
there would seem to be no reason in principle why
the Court should
not, if requested by the applicant to do so, make a transportation
order as part of a mandament van spolie. But
that is by the way.’
31.
In its answering
affidavit to the vindication application SW alleged that on the
afternoon of Tuesday 21 June 2016 it re-assumed
possession of the
advertising site through its crew of contractors and removed the Nike
advertising material which it then transported
to a storeroom.
However the failure of Cedar Park to immediately return the Alexander
Forbes and H&M advertisement signs precluded
it from putting them
up. Cedar Park in replying to this paragraph did not dispute
that SW had re-assumed possession through
its crew. It simply averred
that the conduct in doing so and then of taking the Nike sign down
was unlawful.
32.
It is evident therefore
that while the signs were not returned the first part of the
spoliation order, namely that SW be restored
to possession of the
site,
de facto
occurred prior to the delivery of the application for leave to
appeal.
The
practical consequence of obtaining possession and control of the
advertising site on the afternoon of 21 June was twofold.
33.
Firstly it meant, if
regard is had to van Oosten J’s decision, that SW was entitled
to take the Nike sign down if it had not
already been done and to
have restored to it the Alexander Forbes and H&M signs so that
they could be put up immediately. This
appears to be self-evident if
regard is had to the failure of Cedar Park to raise any impediment in
its answering affidavit in
the spoliation application to taking the
Nike sign down and Fusion Gen not opposing SW’s claim to
repossession of the site
and restoration of the Alexander Forbes and
H&M advertisement signs.
34.
The failure of Cedar
Park to comply with the court order to ‘
forthwith’
return the signs
and thereby prevent the signs physically replacing the Nike ones
cannot inure to its benefit. On the contrary it
appears to be a
deliberate attempt to try and forestall restoration until an
application for leave to appeal had been delivered.
If regard is had
to the admission made by Cedar Park then it appears to amount to a
wilful contempt of the spoliation order. However
no positive finding
need be made. Suffice it that the failure of Cedar Park to enable one
part the spoliation order to be effected
by not restoring possession
of the advertising signs “
forthwith
”
does not militate against SW having regained possession of the space.
Otherwise it would frustrate the very purpose
of spoliation
orders.
35.
In my view SW had
repossessed the advertising space and the representatives of Nike had
not defended the case, thereby accepting
that, as an inevitable
consequence of a successful spoliation order, the Nike sign would
immediately be removed.
36.
Accordingly SW remained
in possession of the site, albeit not of the signs, up to the time of
the application for leave to appeal.
This conclusion also follows
from the
ratio
of
van Oosten J’s judgment which held that in the circumstances of
the present case possession need not be continuous.
37.
Secondly,
since SW had the necessary
animus
and
re-exercised its
detentio
,
in the legally accepted sense having regard to how it is
exercised over the area in question in the circumstances of the
case
as determined by van Oosten J with reference to
Nienaber,
any
attempt to remove SW from control of the advertising space would
amount to a fresh spoliation
[9]
thereby frustrating any attempt by Cedar Park to evict it based on
the above cited extracts from
Nino
Bonino
and
Nienaber.
38.
A second attempt to
remove SW from control of the advertising space succeeded when Cedar
Park removed the new Alexander Forbes and
H&M signage that SW had
re-installed on the evening of 22June. It is no answer to say that SW
ignored security guards who had
deprived them of access. They gained
access with the assistance of the SAPS.
39.
In my view SW was
entitled to access the site over which, an application of the
Nienaber
case
to the factual relationship between the parties, it had
regained
detentio
on
21 June prior to Cedar Park serving its application for leave to
appeal. That being so, SW did not otherwise need permission
since the
ratio
of
van Oosten J’s judgment included the passage that SW was
entitled to access the site and that it was only for practical
reasons that such was to be pre-arranged- it was not a legal
pre-condition.
40.
This also answers the
second issue; namely, service of the leave to appeal application
occurred after SW took re-possession of the
site. The removal of the
replacement Alexander Forbes and H&M signs procured by SW
which it had put up on 22 June therefore
constitutes a second
spoliation which forms the subject matter of one of SW’s
counter-applications.
CEDAR
PARK’S
EX
PARTE
VINDICATION APPLICATION
41.
On 22 June
Carstensen AJ granted Cedar Park an order
ex
parte
returnable on
the following day which required SW to return the Nike advertisement
signage that it had removed from the advertising
space which was in
issue in the spoliation application. The order also interdicted SW
from damaging or disposing of the Nike signage.
42.
In para 4 of the
ex
parte
vindication
application Cedar Park claimed that SW had conceded in the spoliation
application that its sub-lease had expired. As
demonstrated earlier
this is incorrect.
43.
Cedar Park also claimed
to have contractual obligations
inter
alia
to Nike in
terms of which it had undertaken to safeguard Nike’s
advertisements and allow their display. It claimed to have
derived
income of R470 000per month from the advertising site and that
the cost of manufacturing the advertisement excluding
the design work
was approximately R134 000.It also alleged that it could lose
income from the advertisement.
44.
Accordingly Cedar
Park relied in the
ex
parte
application
on an allegation that SW conceded that it has no right to occupy the
site and is holding over. There was no basis set
out to reasonably
apprehend that if notice was given to SW the Nike sign would be
damaged other than to aver that the advertisement
was removed for
nefarious purposes.
45.
Since no judgment was
delivered, it must be assumed that Carstensen AJ granted the
ex
parte
order on the
basis that SW had no right to occupy and that the Nike sign had been
removed in order to damage it, not in order to
put up the Alexander
Forbes and H&M signs or to put up any other signs which, in terms
of the spoliation papers had been agreed
upon. In this regard SW
claimed an entitlement to put up ShowMax’s advertisement
signage until March 2017. ShowMax is part
of the DSTV stable.
46.
Cedar Park also did not
disclose that in an email of 20 October it advised that the ShowMax
advertisement could go up for 3 months
although they were not
satisfied with the quote (of R220 000 pm) and that in April 2016
SW informed Cedar Park that it had
secured ShowMax advertising at
R230 000 pm until March 2017. It was SW’s letter to Cedar
Park of 12 May 2016 advising
that it had concluded this agreement but
was still awaiting Cedar Park’s consent to arrange a meeting.
It is this letter
which prompted the response by Cedar Park’s
attorneys later on the same day that the agreement between SW and
Cedar Park
had expired by effluxion of time. It is also significant
that no mention was made either in that letter or in the demand of 19
May, mentioned earlier, that Cedar Park had purportedly concluded an
agreement during the previous month with Fusion Glen to take
over
from SW. This only surfaced later in the papers filed.
However
for present purposes it suffices that Carstensen AJ was unaware that
there may be issues relating to Cedar Park wrongfully
withholding
consent and was unaware that there would be loss of revenues to
SW or claims against it and that, in terms of
the agreement relied on
by SW, 70% of the revenues generated would in any event go to Cedar
Park.
47.
Moreover in my view
Cedar Park was obliged to disclose in its
ex
parte
application
the relationship that existed between it, Fusion Gen and Nike.
48.
It is evident that
Cedar Park failed to disclose that the Nike advertisement came to be
placed on the advertising space by reason
of an agreement it
had concluded with Fusion Gen which conferred on the latter exclusive
permission to advertise on the site
and giving it exclusive use and
possession of the site.
Cedar
Park also failed to disclose that it had not removed the Nike sign as
required by in terms of van Oosten J’s judgment
which
expressly stated that “
the
status quo must be
restored
ante
omnia
’
[10]
.
Furthermore
at the time of the spoliation order van Oosten J was aware that the
new Nike advertisement sign which Cedar Park had
put in the
advertising space from which it had taken down the Alexander Forbes
and H&M signs was erected through the
agency of Fusion Gen
(the second respondent in those proceedings) and that the latter had
not entered the fray. Accordingly there
would have been no reason to
believe that the Nike sign would not be taken down or that an
additional order would be required.
49.
The Nike sign was
returned and, on the papers before me, there was no ground to believe
that the Nike sign would not be returned
if requested. As a fact
there was an immediate tender of return; if only once SW had informed
Nike and Mindshare South Africa (Gauteng)
(Pty) Ltd, which was Nike’s
media buying agency.
50.
On 23 June, which was
the return date, Carstensen AJ heard argument and on 24 June directed
that pending the determination of ownership
of the Nike signs they
would be in the possession of Cedar Park and that both parties were
interdicted from damaging or disposing
of the signage.
51.
This matter was
allocated to me by the senior urgent court judge together with the
other two related matters regarding the interdict
and eviction
applications. This was pursuant to a consent order made by my brother
Tsoka on 1 June consolidating the three applications,
effectively
either extending the rules nisi granted by Carstensen AJ and
postponing the eviction application to this week’s
urgent court
roll.
52.
In
my view there was a material non-disclosure of facts in the founding
affidavit which might have influenced the decision of Carstensen
AJ
to grant the
ex
parte
order
[11]
. Moreover the
application was persisted with when it should have been evident that
the Nike advertising sign would have been replaced
on the advertising
site and the only issue would have been whether Cedar Park was
entitled to advertising revenues through Fusion
Gen or through SW.
53.
Most disconcerting is
that Cedar Park based its
ex
parte
application
on the key allegation that SW had concede that it had no rights to
continue possession of the site. This was clearly
incorrect, yet this
allegation was the only basis Cedar Park relied on for contending
that SW would damage the signs. It did not
expressly allege that
giving notice would result in such a consequence. As set out earlier
the court was asked to draw such an
inference from the incorrect
facts placed before it. In the context of this case, Cedar Park could
not have made these allegations.
It suffices that having regard to
the
ex parte
nature of the application little or no care was taken in distilling
the actual allegations relied on by SW in the earlier papers
and the
gravamen of van Oosten J’s decision while the facts mentioned
earlier should have been disclosed.
54.
There was no
objectively justifiable basis for launching the vindicatory order
ex
parte
irrespective
of the alleged unlawfulness of SW’s actions
.
It also should not
have been persisted with post the tender. There may have also been
questions of non-joinder.
The
issue now is one of costs. In my view the cumulative effect of all
these adverse features of the application launched without
notice is
that the court should reflect its displeasure at the way in which the
vindication proceedings were conducted by making
a punitive order for
costs against Cedar Park.
APPLICATION
FOR AN INTERIM INTERDICT
55.
In response to SW
erecting, during the evening of 24 June, the Alexander Forbes and H&M
signs on the site Cedar Park launched
an urgent application on 24
June to interdict SW from entering the property. This application was
to be heard on extremely short
notice and simultaneously with the
return day of the first rule nisi issued in the vindication
proceedings which was set down for
11h30.
56.
Cedar Park filed the
briefest of founding affidavits, relying on the allegations contained
in the vindication application which
were supplemented by the
allegation of an unlawful entry by SW when it put up the signs.
57.
Cedar Park’s
application for an interim interdict is based on the assumption that
SW had no lawful right to regain possession
of the advertising site.
It also relied on the service of the application for leave to appeal
at 16h30 on 22 June, which would
precede the SW’s entry onto
the premises later that evening.
58.
Firstly, and for
reasons given earlier, SW had regained possession on 21 June before
the application for leave to appeal was served
and therefore was
entitled to continue with its possession and control of the
advertising site pursuant to the spoliation order
of van Oosten J.
59.
Accordingly there
was no invasion of the property but rather the continued exercise of
the lawful possessory rights conferred
under the spoliation order, as
found by van Oosten J, to “
carry
out activities consistent with the transfer to him of control of the
premises with the intention of securing some benefit
to himself”
and entitled SW to
“
use
the advertising space and to have access at all reasonable times for
all purposes related to carrying out its mandate…”
.
60.
It is therefore
difficult to follow how Cedar Park could show even a
prima
facie
right. And if
it could, there was no basis for contending that the balance of
convenience favours it. The only allegation made
in the founding
papers was that SW had not sought any relief which allows it in the
circumstances of the pending appeal to exercise
any rights in the
property or any part of it. This is clearly incorrect since, in the
vindication proceedings, Cedar Park did not
dispute that SW had
returned to the advertising site on 21 June which was a day before
the application for leave to appeal was
delivered.
61.
Furthermore SW has
contracts for the advertising site with Alexander Forbes and ShowMax
until at least the end of the year. At worst
there would have been a
recoupment of advertising revenue and any shortfall that otherwise
may be occasioned to Cedar Park is claimable
in a quantifiable action
for damages. It was not suggested that SW could not meet such a claim
financially. It was also established
that Nike’s position was
not prejudiced.
62.
In this case the
threshold for this court to demonstrate its opprobrium in respect of
the conduct of Cedar Park has not been reached.
I accept that the
application was launched to undo the effects of the spoliation order
but nonetheless SW was afforded an opportunity
to be heard.
THE
ALLEGED SECOND SPOLIATION AND THE SECTION 18 APPLICATION
63.
The alleged spoliation
of 22 June together with a section 18 application under the
Superior Courts Act to
enforce van Oosten J’s order
pending the application for leave to appeal constitute
the basis for SWs counter-application
to the interdict application.
64.
The prayers are couched
in the form of both a spoliation order and an order under
section 18
not to suspend execution of van Oosten J’s order pending the
outcome of Cedar Park’s the application for leave
to
appeal. This may appear to be contradictory, however it is evident
that the further spoliation is used to support the section18
application.
65.
I have already found
that there was a subsequent spoliation after SW regained possession
of the site pursuant to the grant of the
spoliation order of 17 June.
Accordingly the spoliation order sought in the counter-application
should be granted.
66.
When delivering the
judgment I overlooked repeating my earlier findings that van Oosten
J’s order comprised two parts; one
concerning the spoliation of
the signage space while the other was the spoliation of the Alexander
Forbes and H&M signage.
As
appears earlier I also found that SW had regained possession and
control of the advertising site prior to service of the application
for leave to appeal which on my reading of van Oosten J’s
decision allowed them to take down the Nike signage.
I
also found that Cedar Park did not return the Alexander Forbes
and H&M signage which meant that the second part of the
spoliation order was not complied with . SW however obtained
replacement signs which they reinstalled in the advertisement space
on the evening of 22 June 2016 with the assistance of the South
African Police Service (‘
SAPS’)
.
This entry onto the rooftop space was raised in the replying
affidavit of Cedar Park to the interdict application.
This
signage was in turn then removed by Cedar Park on 24 June and
constitutes the basis for the spoliation relied on in the
counter-application
under case no 21594/2016 and also the
section 18
application not to suspend execution of van Oosten J’s order.
67.
When this application
and the vindication application came before my brother Tsoka J on 1
July 2016 the parties reached what can
best be described as a
temporary truce whereby, pending the determination of all these
applications, SW would have unhindered control
and possession of the
site, the signage referred to in the original spoliation order would
be returned and could be put up on the
advertising space while the
Nike signage would be returned to Cedar Park. However these
arrangements were without prejudice to
the legal position that
pertained immediately prior to the grant of the consent order.
68.
In the reasons handed
down on 25 July I sought to resolve the conundrum that arises where
the person spoliated regains possession
of the site but not of what
was on it prior to service of an application for leave to appeal and
where the spoliatus’ repossession
is short lived through a
further act of spoliation by being deprived of coming on site again
(the consent order of Tsoka J not
amounting to a restoration for such
purposes).
69.
The effect was that I
mistakenly directed that a
section 18
application not to suspend
execution could pre-empt any possible application for leave to appeal
the second spoliation order. This
is patently wrong since the
provision is found in the statute and is limited to cases where an
application for leave to appeal
has been brought prior to execution
being effected.
70.
There was therefore a
patent error in ordering that execution of the second spoliation
order will not be suspended since there is
only an application for
leave to appeal in respect of the first spoliation order. I also
ordered that to the extent that I was
incorrect to find that SW had
in law regained possession of the site on 21 June, and prior to
service of the application for leave
to appeal, that van Oosten J’s
order would not be suspended.
71.
Before considering this
aspect further it is necessary to return to the judgment originally
handed down and pick up with regard
to the findings on whether the
requirements of
section 18
are satisfied.
72.
SW accepts that it must
demonstrate exceptional circumstances and that on a balance of
probabilities irreparable harm will
be suffered to it and none
to Cedar Park.
73.
The exceptional
circumstances are that Cedar Park does not come to court with clean
hands. It spoliated SW and did not respect the
court order fully.
Unless an act of spoliation is treated as an exceptional circumstance
an application for leave to appeal would
undermine the very rationale
for granting spoliation orders.
74.
Adv Fisher is correct
that every application for leave to appeal a spoliation order would
satisfy the
section 18(1)
requirement of exceptional circumstances if
possession is not restored to the person spoliated. I have no
difficulty in finding
that it is an exceptional circumstance, just as
the right to bring a spoliation application even if one has no rights
of possession
is an extraordinary remedy; the fundamental legal
rationale for insisting on immediate restoration where extra-judicial
dispossession
is resorted to does not alter simply because the
spoliator has elected to exercise the right of appeal.
75.
However that is only
one leg of the enquiry. The other is whether Cedar Park will suffer
irreparable harm. Sitting as an urgent
court I am loathe to determine
that as a matter of general principle irreparable harm cannot be
occasioned where the spoliator
has acted outside the law; more
particularly where none of the parties could direct me to any
authority and where there are not
enough illustrations to consider
the issue other than on a case by case basis at this stage.
Nonetheless
it is difficult to comprehend irreparable harm to Cedar Park where it
can institute eviction proceedings as soon as
the impediment of the
second spoliation is cured by SW being given possession of the site
and where it does not suggest an inability
recover its portion of the
revenues generated by advertising which SW contends it has already
procured.
76.
It is however evident
that SW will suffer irreparable harm. It has been spoliated in
circumstances where it asserts a right to continue
securing
advertisers and that it claims to have done so until 2017 and where
it contends that Cedar Park is deliberately frustrating
its rights.
The moment SW relinquishes the site Cedar Park can conclude
agreements with
bona
fide
third parties.
This would effectively deprive SW of the ability to regain possession
and its alleged contract will be lost
even if a court was later
to find that it has a valid on-going verbal agreement with Cedar
Park. If the order is suspended then
it may take a number of years
before the appeal process is exhausted and if the appeal is finally
dismissed then the order will
be a
brutum
fulmen
. On the
other hand if an application for leave to appeal is successful then
SW must approach the court again.
77.
While Cedar Park may
suffer a degree of harm, it will not be irreparable for reasons
already given. In amplification: Aside from
Cedar Park’s
ability to institute eviction proceedings once it restores possession
of the site to SW (and the issue appears
to be a straight forward one
of whether or not there was an umbrella oral agreement concluded in
November 2014 and if so for what
duration) Cedar Park is entitled to
70% of the revenues generated by SW and it does not contend for a
better deal with Fusion Gap.
Fusion Gap did not oppose the
application and the only disclosed advertiser obtained by Fusion Gap
was Nike. Nike in turn was comfortable
to be accommodated at the
advertising site through SW. Accordingly there appears to be very
little comeback to Cedar Park from
third parties.
78.
A final factor is that
SW requests that the order not be suspended pending the outcome of
the application for leave to appeal. Accordingly
the implementation
of the order is likely to be of relatively short duration.
79.
It is evident therefore
that the requirements of exceptional circumstances and irreparable
harm under sections18(1) and (3) are
met in respect of each
spoliation order granted in this case and therefore would be met if
on a proper analysis there was a continued
refusal to respect the
first order even after possession of the site was regained on 21
June. Similarly the effect of the order
would be identical.
80.
The question then is
whether properly characterised, a renewed deprivation of possession
and control over the same corporeal or
incorporeal right after a
spoliation order has been granted and after an application for leave
to appeal has been delivered should
entitle the
spoliatus
to seek an order that execution of the first spoliation order not be
suspended.
81.
It seems to me that
there is a practical way to deal with such a matter so as to avoid an
infinite repetition of each subsequent
spoliation order granted being
met with an application for leave to appeal, and which in turn would
be followed by an application
for leave not to suspend execution and
if successful would be responded to by the spoliator bringing an
urgent appeal under the
automatic right to do so in terms of
section
18(4)(a)(ii).
82.
The practical
resolution is to treat the second spoliation, even if it occurs after
the person spoliated had regained possession,
as an act in breach of
the first order. The basis is that ultimately the initial order has
not been respected.
83.
In the present case the
second spoliation application was brought as a counter-application
and appears to have been warranted in
the circumstances, if only
because one part of the spoliation order was not complied with (ie.
the return of the signage).
84.
Seen from this
perspective the person spoliated for the second time is at a distinct
disadvantage since the onus will be on it to
satisfy the stringent
requirements of
section 18
even if it had regained possession
immediately after the spoliation order was granted and before the
service of an application
for leave to appeal. There appear to be two
responses.
85.
The first is that the
tenuous type of possessory right which van Oosten J found to be
enjoyed by SW is exceptional because there
is no on-going exclusive
physical occupation nor can the site be locked to prevent entry by
others.
The
second is that the repeated act of spoliation must be a factor to be
taken into account when considering exceptional circumstances.
It is
difficult to appreciate irreparable harm being suffered by a
spoliator if the person spoliated had already regained possession
lawfully. The simple response for the owner is to institute eviction
proceedings.
86.
If SW needed the
sheriff to formally serve the spoliation order in order to have
possession restored, even though on its version
it was not denied
access to the site on 21 June, then my decision that SW regained
possession prior to service of the application
for leave to appeal
would be wrong. However that does not alter the outcome of the
section 18
application. The considerations set out in this part would
yield the same result.
87.
Since the effect of the
actual order allowing execution does not change it appears
unnecessary to have followed the provisions of
Uniform
Rule 42(3)
by
giving notice to the parties of the proposed variation of this part
of the order. Moreover it follows the order sought in the
draft
submitted by Adv Peter on behalf of SW.
THE
EVICTION APPLICATION
88.
Cedar Park contends
that it is the victim of a sophisticated hijacking of its property
rights in order to obtain advertisers for
the site and, while Cedar
Park is entitled to a 70:30 split in its favour of the income
generated by SW, it has not received amounts
owing under the
advertising agreements. Cedar Park avers that it is in the process of
instituting action proceedings to recover
the amounts.
89.
It may well be that
Cedar Park is the victim of a hijacked site. But Nicholas AJA also
recognised that while one may have sympathy
for the owner, taking the
law into one’s own hands even in the case of a land invasion,
must be purged before an eviction
application can be brought. Cedar
Park spoliated SW for a second time which was after the spoliation
order was granted. It has
therefore not purged restored possession
and is precluded from bringing an application for eviction.
90.
Moreover, urgency is
based on a number of grounds. One is the continued illegal conduct of
SW which had unlawfully removed the Nike
sign, the invasion of the
site to erect the Alexander Forbes and H&M signage. Another
ground is that SW is concluding
contracts and putting up advertising
signs for products which are not commensurate with the objectives and
values Cedar Park without
obtaining the requisite consent of Cedar
Park. There is also the allegation that Fusion Gen has threatened to
take legal action
if it is not permitted to carry out its marketing
functions. The conclusion was that the situation is volatile and
unsustainable
over any period of time.
91.
I do not share such
sentiments. Until May 2016 SW was in communication with Cedar Park
requesting consent for the conclusion of
advertising signage
agreements. Only in one instance was this not done and, on request
from Cedar Park, the signage was taken down.
The type of
advertisements that are brought in by SW have included reputable
brands such as Alexander Forbes, H&M and ShowMax.
To suggest that
SW will not be able to seek out respectable brands for the
prime site is incongruous.
92.
Secondly SW has raised
the allegation that Fusion Gen is a nominee company of Cedar Park
which has realised that it can do the advertising
itself and
therefore does not have to pass on 30% of revenues to SW.
93.
I have found that it
was Cedar Park’s failure to approach the court for an eviction
order prior to taking the law into its
own hands and its subsequent
attempt to prevent the implementation of the spoliation order before
it delivered the application
for leave to appeal that led to the
events of which it complains.
94.
It should be recalled
that the putting up of the signs on the evening of 22 June was
effected in the presence of members of SAPS
at the request of SW. It
therefore can hardly be contended that this was an act of private
thuggery. SW was relying on the spoliation
order and that it had
already retaken possession of the advertising site on 21 June.
95.
Although Adv Fisher
argued that the eviction related to the advertising sites where the
Alexander Forbes and H&M signs were
installed, it is evident from
para 6 and para 18 of the founding affidavit that the agreement
between the parties was intended
to cover not only the rooftop but
also all other advertising sites on Cedar Park’s property.
96.
SW counter-claims that
there exists an oral agreement on certain terms and conditions that
will endure for a minimum period of 10
years. It is evident that this
relies on an expiry period not previously mentioned. Nonetheless it
is evident from the list of
documents contained in annexure AA2 that
a lot of time, research and effort was put into the project and that
the return was to
be over a reasonable period longer than a year or
on a month’s notice. The building up of the revenues also was
not an overnight
windfall but based on marketing know-how and
expertise which SW contends is now sought to be usurped by another
company. The list
of documents also reveals a distinction between the
drafting of an agreement for advertising at the Sandton Gautrain
station and
the specific agreement for the Alexander Forbes
advertisement signage.
97.
Perhaps most telling is
that Cedar Park had stated in May 2016 that it would bring a court
application to stop further advertisements
by SW yet took the
law into its own hands by proceeding to spoliate. Cedar Park
therefore cannot give a satisfactory explanation
to overcome its
unlawful act and which can justify now, some two months later,
pursuing eviction proceedings as a matter of urgency.
98.
This court sits as an
urgent court and at present there appears to be a dispute as to the
precise terms of the agreement. It should
also be borne in mind that
the conduct of Cedar Park appears to be inconsistent with the
agreement it relies on both in relation
to the area of the
advertising site and as to the period. At face value the agreement
set up by Cedar Park is confined to
the Alexander Forbes
advertisement signs and does not explain the much broader
relationship in respect of the other advertising
spaces that were
admittedly utilised for the advertisements of other companies and
products over other periods.
ORDERS
99.
On 25 June I granted
orders in respect of each of the applications before this court. For
reasons set out earlier the order in respect
of the claim in
reconvention for execution not to be suspended (under case number
21594/2016) has been varied since 25 June by
reason of a patent
error.
100.
In the vindication
application under case number 21068/2016 the order of 25 July 2016
reads:
1.
The application
is dismissed.
2.
The applicant is
to pay the respondent’s costs, including the costs of two
counsel where employed on an attorney and own client
scale, including
the costs of 23 June, 24 June, 1 July, 19 July and 20 July 2016.
101.
In the interdict
application under case no 21594/2016, which also contains the two
counter-applications the order of 25 July
as varied on 1 August
2016 reads:
1.
The application
in convention is dismissed.
2.
The respondent
in reconvention, Cedar Parks Properties 39 (Pty) Ltd (‘Cedar
Parks’), is ordered forthwith to restore
the applicant in
reconvention, Strawberry Worx Pop (Pty) Ltd, ante omnia to possession
of the advertising space and the advertisement
signs situated at the
respondent’s property/premises at the Sandton Gautrain Station
on the remaining extent of Erf [....],
S. E. [....] Township,
registration Division I.R Province of Gauteng.
3.
The operation
and execution of the court order dated 17 June 2016 under case number
2016/18810 shall not be suspended pending the
decision on the
application for leave to appeal that order.
4.
The applicant in
convention, Cedar Parks, is to pay the costs of the application in
convention and the application in reconvention,
including the costs
of two counsel where employed and including the costs of 1 July, 19
July and 20 July 2016.
102.
In the eviction order
under case number 23878/2016 the order of 25 July 2016 reads:
1.
The application
is struck from the roll
2.
The applicant is
to pay the respondent’s costs, including the costs of two
counsel where employed and including the costs
of 19 July and 20 July
2016.
_______________
SPILG
J
DATES
OF HEARING:
19, 20, 21 and 22 July 2016
DATE
OF JUDGMENT AND ORDERS:
25 July 2016
DATE
OF REVISED JUDGMENT AND ORDER:
1 August 2016
LEGAL
REPRESENTATIVES:
FOR
THE APPLICANTS:
Adv D Fisher SC
Adv C
van Castricum
Smit
Sewgoolam Inc
FOR
THE RESPONDENTS:
Adv J Peter SC
Adv W
Krog
Adv
Adv L Mfazi
Maraj
Attorneys/Saint Attorneys
[1]
Fusion Gen
is a competitor of SW in what is termed the advertising solution
market
[2]
Spoliation
judgment of 17 June 2016 at para 6. The court relied on
Nienaber
v Stuckey
1946
AD 1049
[3]
At para 4
[4]
At para 8
[5]
See at
paras 1, 2 and 8
[6]
At paras 5
and 6.
In
Nienaber v Stuckey
the Appellate Division was concerned with
a case of spoliation where the appellant proved that he had
been afforded a contractual
right to plough and cultivate a piece of
land over which the respondent was entitled to exercise all the
other bundle of rights
comprising ownership. The court found that
the appellant had at all material times shown an intention of
remaining in possession
of the land. Despite the appellant having
removed his implements and despite him and his employees having left
the land once
they had completed the previous season’s
harvesting the court found that he had been spoliated when the
respondent had
closed a gate which deprived the appellant of gaining
access, with his planters, at the commencement of the new season in
order
to seed and fertilise the plot in question.
In
Nienaber
at 1057-8 the court said:
“
The
position, as proved by facts which are not in dispute, is that the
appellant had clearly declared his contention, during June
and July,
1945, that he was entitled to the land until the following year, and
up to the end of July had unequivocally manifested
his intention of
acting accordingly, while the respondent had denied his right to
remain on the land and had threatened to take
proceedings for
ejectment. In July the appellant ploughed the lands and it is clear
that during this time he was in physical
possession. From the fact
that he was in physical possession at that time, with the clearly
expressed intention, both by word
and deed, of continuing in
possession for the ensuing twelve months, and in the absence of any
evidence to the contrary, it appears
to me that there are good
reasons for concluding that he continued in possession.
…
.
In
the absence of an allegation by them of any specific act on the part
of the appellant that might be relevant as indicating
an abandonment
or vacation on his part, I conclude that their denial of his
possession is not an independent allegation by them
of a fact, but
merely an inference drawn by them from the facts which they allege.
In
the circumstances there was nothing that required the presence of
the appellant or his servants or any implements on the land
between
ploughing and planting, and the only thing that it can be said he
has left undone is the omission of some symbolic or
formal act such
as walking on to the ground occasionally or leaving some of his
property lying there --- at the mercy of wind
and weather and
thieves. I know of no reason why the omission of a gesture of this
kind should affect the matter.”
[7]
See
Administrator,
Cape, and Another v Ntshwaqela and Others
1990
(1) SA 705
(A) at 715F-716C.
[8]
In
Nienaber
at
1056 the Appellate Division emphasised that there are
two
essential elements for possession which will protect against
spoliation, namely “
animus
and
detention”.
[9]
See the
earlier reference to
Nienaber
at 1056. The passage cited reads:
“
The
learned Judge said that two elements are essential for the
possession which is protected against spoliation, viz.
animus
and
detentio.
With this I agree.”
See
also the extracts from
Nienaber
at footnote 6 above as
to what constitutes
detention
in these
circumstances
[10]
See
judgment at para 8
[11]
See
Schlesinger v
Schlesinger
1979(4) SA 342
(W)
per
Le
Roux J at 348E-350A,
Cometal-Mometal
SARL v Corlana Enterprises (Pty) Ltd
1981(2)
SA 412 (W) at 414D-E and
National
Director of Public Prosecutions v Basson
2002 (1) SA 419
(SCA) at para 21