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[2010] ZAECPEHC 77
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Du Plessis v Du Plessis and Another (2990/10) [2010] ZAECPEHC 77 (29 October 2010)
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
Case no: 2990/10
Date delivered: 29 October 2010
In the matter between:
GIDEON JAKOBUS DU PLESSIS
….....................................................
APPLICANT
and
WILLEM JACOBUS DU PLESSIS
..........................................
FIRST
RESPONDENT
WILLEM JACOBUS DU PLESSIS N.O
…..........................
SECOND
RESPONDENT
SUMMARY
Mandament van spolie involving
equipment valued at R 4 000 000-00 applicant’s father
acquired drilling equipment
on his behalf. Applicant was to pay the
monthly instalments in respect thereof whilst operating his own
business. Applicant paid
instalments without fail. One day his father
refused to release equipment to applicant which was parked in
father’s premises.
Court ordered father to return equipment to
applicant.
JUDGMENT
SANDI J:
Applicant has launched this matter on
an urgent basis in terms of Rule 6 (12) of the Uniforms Rules of
Court seeking the following
relief:
That the applicant’s
non-compliance with the rules relating to time-limits, service and
form be condoned and that this
application be treated as an urgent
application;
That the equipment as stipulated on
annexure “B1” attached to the founding affidavit be
restored to the possession
of the applicant forthwith;
That the first, alternatively, first
and second respondents jointly and severally, pay the costs of this
application;
Further and/or alternative relief.”
The equipment referred to in the
notice of motion is the following:
Two samil 100 magirus Deutz 320
trucks,
A super rock 5000 drilling rig
mounted on the one truck.
An ingesoll rand ZHP1070 Compressor
mounted on the other truck.
The first and second respondents
oppose the application.
The applicant is the son of the first
respondent. He is a businessman and lives at 67 Bush Willow Street,
Wavecrest, Jeffrey’s
Bay. His business entails the drilling of
boreholes in drought-stricken areas in order to access water for his
customers. The
first respondent is his father whose residential
address is 1 Van Riebeck Street, Kareedouw. He is also the sole
trustee of the
Willem Jacobus Family Trust which trades under the
name and style of Countrywide Drilling.
The other son of the first
respondent, Jacques, is also carrying on business similar to that of
the applicant and the respondents.
The Du Plessis family has been
involved in the business of drilling boreholes for many years.
In his founding affidavit the
applicant makes the following allegations. During March 2009 he
accompanied his father and mother
to Pretoria where the equipment
referred to in paragraph 2 of this judgment was purchased by the
first, alternatively, the second
respondent. On that occasion the
first respondent, his wife and the applicant sojourned at the home
of applicant’s sister
in Johannesburg.
It is common cause that the purchase
of the equipment was financed by Nedbank and that the first
respondent paid to Nedbank a
deposit of R1,129,845.00.The total
value of the equipment is about R 4 million.
After the equipment, had been
collected from the dealer a meeting was held at applicant’s
sister’s place in Johannesburg.
There his father and mother
congratulated him on the acquisition of the equipment and told him
to use it to “make money”.
The applicant and the first
respondent agreed orally that applicant would pay the first
respondent a monthly amount of R50,000.00
towards the liquidation of
the deposit of R1,129,845.00 the first respondent paid to Nedbank.
In addition the applicant had to
pay the monthly instalments to
Nedbank which were agreed to in the sale agreement between Nedbank
and second respondent as represented
by first respondent.
Subsequent to the above agreement
first respondent divorced applicant’s mother and is now
married to Helen Lillian Du Plessis
who has filed an affidavit in
this matter in support of the case of the first and second
respondents. She is also the bookkeeper
of the respondents.
The applicant says that he has been
using the equipment for his benefit from the day of its acquisition.
According to him Nedbank,
through its employee, Ms Stopforth,is
aware that the applicant is using the equipment and that he is
paying Nedbank for it. Ms
Stopforth was introduced to him by the
first respondent. She is handling the Nedbank account relating to
the equipment.
At the first respondent’s
residential address there is an industrial yard where, on occasions,
the applicant parked the
equipment so that it could be washed and
cleaned. In addition he would park the equipment there whenever he
wanted it to be kept
at a safe place. He says that he entered into
this arrangement with the first respondent.
On Thursday, 23 September 2010, and
in the absence of the first respondent, the applicant parked the
equipment in the said yard.
His team of workers proceeded to clean
and wash the equipment under the supervision of his foreman. Once
the cleaning had been
done the drill rig would have proceeded to
Mosselbay to execute a contract. The applicant would have taken the
Compressor to
Johannesburg for repairs.
On Sunday, 26 September 2010, the
applicant returned to the yard in question in order to collect the
Compressor in preparation
for his trip to Johannesburg. The first
respondent approached him and called him to his office. There the
first respondent produced
a handwritten contract which he required
the applicant to sign. The contract stated that the applicant was an
employee of Countrywide
Drilling, the second respondent. The first
respondent informed the applicant that he would be paid a salary of
R30,000.00. In
addition he would receive a percentage of the profit
generated by the use of the equipment.
It appears from the applicant’s
papers that at that time the first respondent’s business
manager had resigned from
his employment and the first respondent
wanted someone to run his business.
Because the applicant was taken by
surprise by the first respondent’s attitude he requested a
copy of the handwritten document
so that he could obtain legal
advice. According to the applicant, the first respondent informed
him that if he refused to sign
the contract “the truck was
going nowhere.”
The applicant realised that the first
respondent was not going to allow him to remove the equipment from
the yard. He then consulted
his attorney who sent a letter of demand
to the first respondent demanding the return of the equipment.
After service of the letter, the
first respondent telephoned applicant’s attorney advising that
the equipment was not going
to be given to the applicant and denied
the terms of the agreement as alleged by the applicant.
In reply to that letter the first
respondent’s attorney wrote to applicant’s attorney
advising that the applicant
was at all relevant times an employee of
the second respondent and that he used the equipment in question in
that capacity only.
First respondent’s attorney also stated
that at all relevant times the second respondent was in possession
of the equipment
and that it never relinquished such possession to
anyone.
In his founding affidavit the
applicant challenged the respondent to produce documentary evidence
that he was being paid a salary
as an employee of the second
respondent. He reiterated what is contained in paragraph 9 above. He
pointed out that he had 10
(ten) persons under his employment who
were paid by him from the income generated by his business referred
to above.
The letter from the first
respondent’s attorneys also stated that the applicant had
voluntarily delivered the truck to the
second respondent in order
for repairs to be effected to it. The applicant vehemently denied
this statement and reiterated that
the truck was merely stored at
the second respondent’s yard.
In conclusion the applicant states
that at all relevant times he has been in free and undisturbed
possession of the equipment
in question until 26 September 2010 when
the first respondent despoiled him of its possession.
The applicant states that he entered
into a number of contracts with customers which needed to be
executed by means of the equipment
that has been unlawfully taken
from him by the respondent. He says that the conduct of the first
respondent was causing harm
to his business and that as a result of
the respondent’s conduct he lost business from three
customers.
The applicant states that by refusing
him to remove the equipment from the yard in question the first,
alternatively, the second
respondent acted unlawfully by taking the
law into their own hands. Hence he seeks an order that the equipment
be returned to
him forthwith.
The first respondent has filed an
answering affidavit. In addition the second respondent has filed a
counter-application. In the
counter-application the second
respondent seeks an order in the following terms;
“
(1) ‘n
Bevel wat verklaar dat Tweede Respondent die reghebbende op die
gebruik en besit is van die masjieneenhede, beskryf
in Aanhangsel “B”
tot die Funderende Beedigde Verklaring,
(2) ‘n Bevel wat Applikant
gelas, in soverre hy kragtens ‘n Spoliasiebevel in besit
geplaas mag word van die eenhede,
om die eenhede aan Tweede
Respondent terug te besorg,
(3) Alternatiewe regshulp.
(4) Gedingskoste.”
The counter-application is supported
by the first respondent who is the sole trustee of the Willem
Jacobus Du Plessis Family Trust
(the second respondent).The
affidavit filed on behalf of the second respondent states that the
equipment was purchased by the
second respondent by means of finance
obtained from Nedbank. Though registered in the name of the second
respondent as reflected
on the certificates annexed to the
counter-application, marked “P7” and “P8”,
ownership of the equipment
vests in Nedbank. The trust is the legal
possessor of the equipment. If the trust relinquishes possession of
the equipment to
the applicant it would be breaching clause 12(1) of
the hire-purchase agreement. According to the affidavit the trust is
the
only lawful possessor (reghebbende) in respect of the said
equipment.
The clauses of the agreement relevant
to the issue raised in the counter-application are the following:
“
6: OWNERSHIP
6.1) ownership in the goods shall
remain vested in the
Bank until the Client has paid all
amounts due in terms of the Agreement.
6.2) All risks in the Goods from
whatever cause arising shall pass to the clients upon delivery of the
goods or signing of this
agreement, which ever occurs first.”
“
12: USE OF
THE GOODS
12.1) The client shall at all times,
keep the goods under his care, possession and control and shall
exercise proper care in the
use thereof and not use or cause the
goods to be used for any purpose for which they are not intended to
be used or in contravention
of any law in force for the time being.”
The third issue raised by the
respondents is that at all times the second respondent has been in
possession of the said equipment
and that if it is found that
spoliation took place, the court should order, in terms of the
counter-application that the equipment
be restored to the second
respondent. In support of the allegation that the second respondent
has always been in possession of
the equipment, in his affidavit the
first respondent selectively referred to a sentence taken out of
paragraph 31 of the applicant’s
founding affidavit, which
reads as follows, “it became apparent that the equipment was
not going to be returned to me as
a consequence of which my attorney
of record wrote a letter of demand to the first respondent dated 28
September 2010.”
This sentence has been taken out of context
and ignores the rest of the evidence placed before me. Reliance on
it by the respondents
is obviously intended to justify the
allegation that the equipment has always been in the possession of
the second respondent
and that the applicant was an employee.
Respondent’s counsel,
Mr
Smit SC
, submitted that if the court were to order the return of
the equipment to the applicant, such an order would be contrary to
the
provisions of clause 12(1) of the agreement quoted above.
Counsel submitted that Nedbank should have been joined in these
proceedings
and given an opportunity to waive its rights in terms of
the agreement. Counsel submitted that I should not adjudicate this
matter
until Nedbank has been joined in these proceedings.
I do not think that there is merit in
this argument. Through Ms Stopforth, Nedbank has always been aware
that the applicant was
in possession of the equipment and that he
was paying for it. This is not denied by any of the respondents. The
evidence placed
before me shows that the applicant has been paying
the requisite instalments to Nedbank in respect of the hire-purchase
agreement.
As stated above the applicant is also paying R50,000.00
to the respondent.
I am here concerned only with the
issue of spoliation and not the agreement between the second
respondent and Nedbank. Nedbank
is not a party to these proceedings
and neither is it a party to the agreement entered into between the
applicant and the first
respondent relating to the use of the
equipment.
Mr Smit submitted that the applicant
has failed to prove that he was in actual possession of the
equipment at the relevant time.
He submitted that the applicant may
have had a right to possess the equipment but failure to prove
actual physical possession
is fatal to the applicant’s case.
Counsel also submitted that there is no allegation in applicant’s
papers that he
was in actual possession. Mr Smit submitted that in
the event I find that there is a conflict of fact on the papers I
should
adopt the approach laid down in
Plascon-Evans Paints Ltd v
Van Riebeeck (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623(A)
and accept the
respondent’s version on this issue. Counsel also referred me
to the matter of
N
gqumba en 'n Ander
v Staatspresident en Andere; Damons NO en Andere v Staatspresident
en Andere; Jooste v Staatspresident en Andere
1988 (4) SA 224
(A)
at 260J-
261B where the following was said:
“
Die
algemene reël, soos in die
Plascon-Evans
-saak
vermeld, het te doen met die wyse waarop 'n Hof 'n saak benader waar
'n applikant 'n finale bevel in mosieverrigtinge aanvra
en daar 'n
geskil uit die stukke blyk. Dit vloei nie daaruit voort dat 'n
applikant wat 'n Hof by wyse van 'n kennisgewing van
mosie
J
nader
die
onus
dra
en derhalwe genoodsaak is om in die geval van 'n feitegeskil die
bewerings van die respondent te aanvaar as hy sy aangevraagde
bevel
wil verkry nie. Die grondslag van die algemene reël skyn te wees
dat 'n party wat besluit om mosieverrigtinge aanhangig
te maak
normaalweg weet dat daar 'n gevaar bestaan dat sy feitebewerings
betwis kan word en dat hy dan gedwing kan word om die
respondent se
bewerings te aanvaar indien hy 'n finale bevel op die stukke wil
verkry.
In this matter there are a number of
important and material allegations made by the applicant which are
not disputed by the respondents.
They are the following:
applicant has been in free and
undisturbed possession of the equipment;
applicant had left the equipment at
respondents yard as per long-standing arrangement;
applicant never had any problems
before when collecting the equipment from the said yard. A problem
arose when he refused to
sign an employment agreement with second
respondent;
that first respondent’s
refusal to allow applicant to remove the equipment is unlawful and
first respondent has taken
the law into his hands;
that the court should restore
possession ante omnia and allow applicant to remove the equipment;
applicant uses the equipment in his
business on a daily basis;
applicant has a number of contracts
to execute and that the conduct of the respondents is harming his
business. The result of
the unlawful conduct is that applicant has
lost some of his customers;
some of applicant’s customers
are threatening to take legal action against him;
applicant has 10 employees whom he
pays from the income generated by the equipment. He pays Nedbank
and the first respondent;
the conduct of the first respondent
in attempting to force him to enter into the aforesaid agreement is
unlawful.
The allegations made in subparagraphs
(a)-(j) above are not disputed by the respondent. In addition
thereto on 28 September 2010
respondent’s attorney wrote to
applicant’s attorney in the following terms:
“
In
die opsig is dit verder insiggewend dat u Klient vrywilliglik die
trokke aan ons Klient besorg het ten einde die nodige herstel
werk
aan die trokke te deon (die bots Klaarblyklik met u klient se
bewering dat u klient fer alle relevante tye besit gehad het
oor die
trokke.”
However in his answering affidavit the
first respondent stated the following:
“
Applikant
het geweier om die kontrak wat voorheen aan hom aangebied is te
teken, waarna ek te kenne gegee het datek nie die masjienere
aan hom
sou vrylaat indien hy nie in diens van die Trust is ooreekomstig die
voorgestelde kontraks depaling nie”.
The two versions referred to above
are contradictory of each other. The second version set out in first
respondent’s answering
affidavit corroborates applicant’s
case, namely, that when applicant refused to sign the agreement the
first respondent
told him that he was not going to release the
equipment to him. This version taken together with applicant’s
version that
up until that date he was in free and undisturbed
possession of the equipment; that he had parked it in the said yard
( as per
arrangement with first respondent) for the purpose of it
being washed and cleaned; that his staff indeed proceeded to do so;
that he used the equipment for his benefit ever since its
acquisition; from the income generated he paid Nedbank and his staff
and utilised the rest of the income for his personal use; is more
probable than the version of the respondents.
I do not find that there is a
conflict of fact which warrants the application of the principle set
out in the
Plascon-Evans
case. In my view the applicant’s
case is clear and straightforward and is the more probable version
in the circumstances
of this case. I cannot rely on the respondents
version and I am satisfied that I can reject it on the papers.
The version of the respondents that
the applicant voluntarily delivered the equipment to the respondents
is unacceptable. I do
no accept that it is the correct version. The
applicant was at all relevant times in actual physical possession of
the equipment.
He never relinquished such possession when he parked
the equipment in the industrial yard for the purpose of washing and
cleaning.
He subsequently went to collect it, as he used to do in
the past, when the first respondent prevented him form doing so.
In
Yeko v Qana
1973 (4) SA
735(A)
at 739 D-G the following was stated:
“
The
very essence of the remedy against spoliation is that the possession
enjoyed by the party who asks for the spoliation order
must be
established. As has so often been said by our Courts the possession
which must be proved is not possession in the juridical
sense; it may
be enough if the holding by the applicant was with the intention of
securing some benefit for himself. In order to
obtain a spoliation
order the
onus
is
on the applicant to prove the required possession, and that he was
unlawfully deprived of such possession. As the appellant admits
that
he locked the building it was only the possession that respondent was
required to establish. If the respondent was in possession
the
appellant's conduct amounted to self-help. He was admittedly in
occupation of the building with the intention of selling his
stock
for his own benefit. Whether this occupation was acquired secretly,
as appellant alleged, or even fraudulently is not the
enquiry. For,
as
Voet
,
41.2.16, says, the injustice of the possession of the person
despoiled is irrelevant as he is entitled to a spoliation order even
if he is a thief or a robber. The fundamental principle of the remedy
is that no one is allowed to take the law into his own hands.
All
that the
spoliatus
has
to prove, is possession of a kind which warrants the protection
accorded by the remedy, and that he was unlawfully ousted.”
Furthermore in
First Rand Ltd t/a
Rand Merchant Bank and another v Scholtz No and Others
2008(2)
SA 503 (SCA) at 509 paragraph 12. The following was stated:
“
The
mandement van spolie is a remedy to restore to another
ante
F
omnia
property
dispossessed 'forcibly or wrongfully and against his consent'. It
protects the possession of movable and immovable property
as well as
some forms of incorporeal property. The mandement van spolie is
available for the restoration of
quasi-possessio
of
certain rights and in such legal proceedings it is not necessary to
prove the existence of the professed right: this is so because
the
purpose of the proceedings is G the restoration of the status quo
ante
and
not the determination of the existence of the right. The
quasi-possessio
consists
in the actual exercise of an alleged right.”
In the circumstances I am satisfied
that the applicant has made out a case for the relief he seeks.
It follows from what I have stated
above that the counter-application should fail.
Lastly,
Mr Smit
submitted with
reference to
Parker v Mobil Oil of Southern Africa (PTY) Ltd
1979
(4) SA 250
(NC) that to grant the applicant the order he seeks would
be of no use to the applicant and inconvenient to the respondents.
Counsel submitted that if applicant is given possession of the
equipment he will not be able to use it because the Compressor is
not functioning.
The applicant’s case is very
clear. One truck was going to execute a contract in Mosselbay whilst
he was going to transport
the compressor to Johannesburg. The
equipment would certainly be of use to the applicant once he is
placed in possession of it.
The following order is made:
(1) The first and second respondents
are ordered to restore possession to the applicant of the following
equipment forthwith:
A Samil 100 Magirus Deutz 320 truck
with engine number 686 0822.
A Samil 100 Magirus Deutz 320 truck
with engine number 706 1257
A Super Rock 5000 drilling rig
An Ingesoll Rand HP 1070 compressor
The first and second respondents
are to pay the costs of this application jointly and severally.
The counter-application is
dismissed with costs.
__________________
B Sandi
Judge of the High Court
Eastern Cape, Grahamstown