About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2021
>>
[2021] ZAECPEHC 58
|
|
SA Fence and Gate Joint Venture v Trustees for the time being of the Independent Development Trust and Others (2506/2021) [2021] ZAECPEHC 58 (23 November 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION, PORT ELIZABETH
Case
No.: 2506/2021
Date Heard: 11 November
2021
Date
Delivered: 23 November 2021
In
the matter between:
SA
FENCE AND GATE JOINT
VENTURE
Applicant
and
THE
TRUSTEES FOR THE TIME BEING OF THE
INDEPENDENT
DEVELOPMENT TRUST (669/91)
First
Respondent
B
RAMGOOLAM & ASSOCIATES
INC
Second
Respondent
RUWACON
(PTY) LTD
(Registration
number: 2003/017933/07)
Third
Respondent
THE
HONOURABLE RONALD LAMOLA
THE MINISTER OF
JUSTICE AND CORRECTIONAL
SERVICES
N.O
Fourth
Respondent
JUDGMENT
EKSTEEN J:
[1]
In
this application the applicant, SA Fence and Gate Joint Venture (the
applicant), sought an urgent order, by way of the
mandament
van spolie
(the mandament) to be
restored in peaceful and undisturbed possession of its campsites,
buildings, containers and materials, plant
and equipment at St Albans
Prison Management Areas.
[2]
The
material background to the dispute, which arises from the performance
of a tender, is as follows. The first respondent, the
Independent
Development Trust (IDT), has been described as a Schedule 2 Public
Entity in terms of the
Public Finance Management Act, 29 of 1999
, and
an organ of state. During 2012, operating as an implementing agent
for the Department of Correctional Services, it advertised
a tender
(the tender) for construction and maintenance work at various
correctional facilities in South Africa, including the St
Albans
Prison in Gqeberha. The tender was ultimately awarded and a contract
concluded with a joint venture styled SA Fence and
Gate, JV, which
had been established between:
(i)
SA
Fence and Gate Investment Holdings (Pty) Limited (SA Fence and Gate)
registration number 2004/031774/07;
(ii)
Raubex
Construction (Pty) Limited (Raubex);
(iii)
Gordian
Fence SA (Pty) Limited (Gordian); and
(iv)
Mavundla
Ironclad Systems (Pty) Limited (Mavundla).
[3]
Construction
and maintenance in terms of the tender duly commenced and continued
until 2017 when a dispute arose between IDT and
the contractor on
site. The applicant said that it was the contractor on site. IDT
denied its right to perform the contract and
contended that the
applicant was not the successful tenderer and, accordingly, it ceased
payments. In response, the applicants
suspended the works and IDT, in
turn, purported to cancel the contract. Litigation, which is
currently still pending, followed.
[4]
It
was the applicant’s case that it had all material times
retained possession of the site and its equipment at St Albans
and,
despite requests, it refused to relinquish possession thereof in
order to protect what it perceived to be its
lien
.
It said that after an exchange of extensive correspondence, on 17
August 2021, IDT unilaterally appointed locksmiths “to
change
the locks to the containers on the campsites and thereafter commenced
removing the materials situated thereon and relocating
same without
the applicant’s consent”.
[1]
I revert to this issue later.
[5]
The
present application is for a spoliation order. IDT is the only
respondent to oppose the application. In doing so it did not
join
issue with the particular allegations of spoliation in respect of the
containers. Rather, it raised various points
in
limine
in its answering affidavit. It
is not necessary for purposes of the present application to consider
all the issues raised and I
confine myself to those material to the
adjudication of the application.
[6]
In
its first material argument IDT contended that the applicant “does
not exist” and, accordingly, that it has no
locus
standi
to bring the application. The
attack, it seems to me, is accordingly on the allegation that it is
the applicant that was in peaceful
and undisturbed possession. The
argument proceeded on the following factual basis.
[7]
The
successful bidder, to whom the initial tender was awarded in 2012 had
been a joint venture (i.e. a partnership) styled SA Fence
and Gate
JV, which was constituted as adumbrated earlier. During the tender
evaluation process, IDT explained, SA Fence and Gate
JV was scored on
the basis and strength, including B-BBEE requirements, of all four of
its constituent members, as it presented
at the time.
[8]
It
appears to be common ground between the parties that Raubex resigned
from the partnership on the same day that the tender was
submitted,
against payment being made to it by the remaining partners of R8
million. IDT contended that the payment was patently
made in
consideration for Raubex fraudulently lending its name to the
purported joint venture specifically for purposes of the
tender.
[9]
Mavundla
had also resigned from the partnership during 2012 and placed itself
in voluntary liquidation on 16 April 2013. SA Fence
and Gate was
liquidated on 29 June 2016.
[10]
The
applicant also styled itself as SA Fence and Gate JV, and it
contended that it was the same joint venture which secured the
tender, but currently consisting of:
(i)
SA
Fence and Gate (Pty) Limited, registration number 2011/115011/07;
[2]
(ii)
Raubex;
and
(iii)
Gordian.
[11]
In
law, of course, a partnership is automatically dissolved when one of
its members has resigned therefrom, or dies, or when a new
partner is
admitted. IDT accordingly contended that the new company, SA Fence
and Gate (Pty) Limited, was masquerading as the joint
venture to whom
the tender had been awarded.
[12]
Mr
Bekker
,
who appeared on behalf IDT, argued, convincingly in my view, that the
joint venture to whom the tender was initially awarded no
longer
exists and that its rights and obligations vis-a-vis IDT could not
have passed to a new joint venture without further ado.
I accept the
argument for purposes of this judgment. However, it does not follow
from this conclusion that there does not exist
a partnership
comprised as the applicant contends that it is. Whilst IDT may be
correct that it does not derive any rights from
the award of the
tender, neither its existence, albeit as a separate entity without
legal rights, nor its assertion that it was
in fact carrying out the
works described in the tender when the dispute arose in 2017, has
been disputed on any factual basis.
[13]
In
spoliation proceedings it’s the physical possession, not the
right to possession which is protected. It suffices, for purposes
of
the mandament, if the possession was with the intention of securing
some benefit, such as the protection of a
lien
.
In the circumstances it seems to me that the dispute which exists
relating to the applicant’s entitlement to the contractual
benefits under the tender is irrelevant for purposes of the
mandament. The first point
in limine
can therefore not succeed.
[14]
The
second material issue raised, is more problematic. IDT contended that
even if I did find that there had been a spoliation of
some property,
which, as I have said, has not been disputed, that the relief sought
was incompetent. The relief claimed, so the
argument went, was too
vague and unspecific to be capable of enforcement, in the sense that
the applicant could not proceed to
execution of the order. It is
necessary, for the assessment of this argument to revert to the
relief sought. The applicant sought
an order directing the
respondents to:
“
1. Restore
the Applicant’s peaceful and undisturbed possession of the
Applicant’s campsites,
buildings, containers and materials,
plant and equipment at St. Albans Prison Management Areas; and
2. Return
to the Applicant all the materials removed from the Applicant’s
campsites, buildings,
containers and materials, plant and equipment
at the St. Albans Management Areas.”
[15]
The
applicant had initially contended that it had been in possession of
“certain campsites
[3]
,
buildings, containers and materials, plant and equipment at the St
Albans Prison”. Later, it asserted that it had always
maintained that it had “retained the possession of the site and
a
lien
over materials and the works thereon, in particular the St Albans
Prison.”
[16]
As
I have said, before the employment of locksmiths to change the locks
to certain containers, correspondence flowed between the
parties. The
applicant explained that it had sought various undertakings
regarding, “in particular, that the applicant’s
possession of the St Albans Prison would not be disturbed and that
the applicant’s materials would not be tampered with”.
The founding affidavit concludes with the assertion that “the
restoration of the applicant’s possession of St Albans
Prison
is inherently urgent, …”.
[17]
There
is no indication in the papers of the nature or location of the
“campsites” (other than that they are at St Albans)
or
any description of the “buildings” which the applicant
contends that it had possessed. The claim varies from time
to time
between “campsites”, “the site” and “the
St Albans Prison”.
[18]
The
term “campsite”, in its ordinary English meaning,
generally refers to a place for camping.
[4]
The existence of such a facility on the premises of a large prison
strikes me as being inherently improbable. Mr
Gajjar
,
for the applicant, was constrained to acknowledge that something
different was intended, but was unable to suggest what meaning
was to
be given to the term. As I have said, it is unclear whether a single
site or multiple sites are in issue.
[19]
The
reference to “certain buildings” is equally obscure. St
Albans Prison is a large correctional facility which has
at all
material times been in full operation. The suggestion that the
applicant may have been in possession of the entire prison
need only
to be stated to be rejected. Indeed, Mr
Gajjar
disavowed the suggestion, as he had to do. Once this concession was
made it became impossible to identify any building to which
the
applicant laid claim.
[20]
There
is no description or identification of the alleged containers nor of
the number or position of containers which were subjected
to the
change of locks. Neither the containers nor the campsites on which
they were allegedly situated are identifiable. The founding
affidavit
did not attempt to describe the materials, plant or equipment to
which reference is made. For these reasons IDT contended
that the
granting of the relief sought was likely to give rise to numerous
disputes between the parties regarding which properties
and items had
been removed or were to be returned. It pointed out that no inventory
or description or quantification was provided.
[21]
I
consider that there is merit in the argument. In
Mansell
[5]
Broome
JP explained:
“
It
is surely an elementary principle that every Court should refrain
from making orders which cannot be enforced. If the plaintiff
asks
the Court for an order which cannot be enforced, that is a very good
reason for refusing to grant his prayer. This principle
appears to me
to be so obvious that it is unnecessary to cite authority for it or
to give examples of its operation.”
[22]
These
remarks are appropriate in the present context. A sheriff would be
unable to establish from the order any items or property
which he is
supposed to seize from the IDT in order to return to the applicant
and he would be unable to execute or to give effect
to the order.
Reference to the papers in the application could provide no
assistance. I think that the IDT is correct that an order
granted in
the terms sought would simply be a recipe for further litigation.
When the matter was argued before me I invited Mr
Gajjar
to propose a formulation of the order which found support in the
founding papers to overcome this difficulty. He was unable to
do so.
In the result, the application cannot succeed.
[23]
The
application is dismissed with costs.
J
W EKSTEEN
JUDGE OF THE HIGH
COURT
Appearances:
For
Applicant: Adv G Gajjar instructed by Biccari Bollo
Mariano Inc c/o Kaplan Blumberg Attorneys, Gqeberha
For
1
st
Respondent: Adv S Bekker SC instructed by Weavind and Weavind Inc c/o
Annali Erasmus Inc, Gqeberha
[1]
This
allegation is not disputed.
[2]
This
is a different company to that described in para 2 above.
[3]
At
times described as “various sites contemplated in the tender”.
The tender did not form part of the papers.
[4]
The
New Shorter Oxford English Dictionary (1993)
[5]
Mansell
v Mansell
1953
(3) SA 716
(N) at 721E-F