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[2023] ZAFSHC 197
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X-Pharm (Pty) Ltd v Emoyamed Hospital (Pty) Ltd and Another (6458/2022) [2023] ZAFSHC 197 (25 May 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
CASE
NO: 6458/2022
In the matter between:
X-PHARM (PTY)
LTD
APPLICANT
and
EMOYAMED HOSPITAL
(PTY) LTD
FIRST
RESPONDENT
EMOYA PROP MED (PTY)
LTD SECOND
RESPONDENT
CORAM
:
NG
Gusha, AJ
JUDGMENT
BY:
NG
Gusha, AJ
HEARD
ON:
13 APRIL 2023
DELIVERED
ON
:
This judgment was delivered electronically by circulation to the
parties’ representatives by way of email and by release
to
SAFLII. The date and time for delivery is deemed to be at 12h00 on 25
MAY 2023.
JUDGMENT
INTRODUCTION
[1]
This is an application brought within the purview of a
mandament
van spolie.
The applicant seeks an order directing the
respondents to restore its possession of the premises situated at
Suite 14 Emoya Hospital,
7 Frans Klenyhans Avenue, Groenvlei,
Bloemfontein (the premises) on which the applicant operates a retail
pharmacy.
[2]
Pursuant to an urgent application brought by the applicant, the
Honourable Mathebula
J on the 30
th
December 2022, issued a
rule nisi
returnable on the 2
nd
February 2023
ordering the respondents, jointly and severally, to restore the
applicant’s control and possession of the aforesaid
premises.
[3]
On the 2
nd
February 2023 the Honourable Naidoo J postponed
the matter to the 9
th
March 2023 and extended the
rule
nisi
to the same date. The Honourable Judge also ordered the
respondents to file their application for condonation of the late
filing
of their opposing papers as well as their opposing affidavits
on or before the 16
th
February 2023. The applicant was in
turn ordered to file its replying affidavit on or before the 27
th
February 2023. The respondents were jointly and severally ordered to
pay the costs occasioned by the postponement.
[4]
On the 9
th
March 2023 the Honourable Daffue J postponed
the matter to the13
th
April 2023 and extended the
rule
nisi
to the same date and extended the filing of respondents’
and applicant’s opposing and replying affidavits to the 10
th
and 24
th
of March 2023 respectively. The respondents were
joint and severally ordered to pay the costs occasioned by the
postponement.
THE PARTIES
[5]
The applicant is a duly registered and incorporated private company
with limited liability
and is represented herein by one of its
directors, Ms Sandra Wiid. It owns and operates a pharmacy
[1]
at the aforesaid premises.
[6]
The 1
st
respondent is a duly registered and incorporated
private company with limited liability and operates a hospital at the
premises
and also acts as sub-lessor to various sub-lessees.
[7]
The 2
nd
respondent is a duly registered and incorporated private company with
limited liability and the owner of the property known
as
Phase 3A situated at Emoya Estate which premises it lets to the 1
st
respondent.
CONDONATION
[8]
Prior to the submissions on the merits the respondents sought an
order condoning the
late filing of their affidavits. Their
application for condonation and opposing affidavit was eventually
filed on the 8
th
March 2023 approximately 14 days after the 2 February 2023 order. The
reasons advanced for not complying with the time frames as
set out in
the court orders, spanned some 7 pages
[2]
.
They ranged, amongst others, from the unavailability of the then
instructing attorney Mr Seedat, counsel, an application for leave
to
appeal the 30
th
December 2022 interim order of the Honourable Mathebula J, an appeal
lodged at the Supreme Court of Appeal, the pending provisional
liquidation application as well as the
“
amount
of work needed to finalise the answer and heads of argument to be
filed in the liquidation application as well as that attorney
Janse
van Rensburg did not discuss the timelines agreed to with either
the
respondents or senior counsel. This resulted in the persons with the
particular knowledge not being available to finalise the
documents
and affidavits”. This I find rather baffling, as it seems to
suggests that the respondents prioritized the provisional
liquidation
application above all else.
[9]
Rule 27 of the Uniform Rules provides as follows;
(1)
In the absence of agreement between the parties, the court may
upon application on notice and on good cause shown, make
an order
extending or abridging any time prescribed by these rules or by an
order of court or fixed by an order extending or abridging
any time
for doing any act or taking any step
in connection with
any
proceedings
of any nature whatsoever upon such terms as to it seems meet.
(2)
…
(3)
The court may, on good cause shown condone any non-compliance
with these rules.
[10]
It needs no restating that condonation cannot be had for the mere
asking, it is an indulgence
which the court has a discretion to grant
or not. The party seeking condonation has to furnish the court with a
full, detailed
and accurate account of the causes of the delay and
their effects so as to enable the court to clearly understand how the
delay
came about
[3]
.
[11]
In
Van
Wyk v Unitas Hospital and Another
[4]
,
the
Court held that:
“
This
court has held that the standard for considering an application for
condonation is the interest of justice. Whether it is in
the interest
of justice to grant condonation depends on the facts and
circumstances of each case. Factors that are relevant to
this enquiry
include but are not limited to the nature of the relief sought, the
extent and cause of the delay, the effect of the
delay on the
administration of justice and other litigants, the reasonableness of
the explanation for the delay, the importance
of the issue to be
raised in the intended appeal and the prospects of success.”
[12]
As lengthy as the reasons submitted for the non-compliance were, they
amounted to nothing more
than what I deem to be a plethora of
excuses. The aforesaid notwithstanding, I am inclined to grant
condonation of the late filing
of the respondents opposing affidavit
as the delay is not unreasonably inordinate. I could also find no
prejudice to the plaintiff,
in any event, even if there were, it is
none that could not be cured by an appropriate costs order. I
furthermore am alive to the
dicta as expressed in
Van
Wyk
supra
[5]
and consequently, I hold the considered view that the interests of
justice dictate that the present dispute between the parties
be
adjudicated and determined on the merits. Having said that, it would
be remiss of me if I do not remark that the practice of
not complying
with set time frames and orders of court is to be deprecated.
APPLICATION TO
STRIKE OUT
[13]
In addition to seeking condonation, the respondents brought a
preliminary application to strike
out paragraph 31.1 of the
applicant’s replying affidavit contending that it contained
hearsay evidence.
[14]
The impugned paragraph reads thus;
“
I
mentioned to Loffie that the locks of the pharmacy was changed over
the weekend of Christmas. Loffie then informed me that he
was
instructed by Kobus Greyvenstein to change the lock.”
[15]
In support of the assertion that the aforesaid amounted to hearsay,
the respondents favoured
this court with an affidavit from one Mr
Rudolph Van Zyl ostensibly also known as Loffie, wherein the latter
decries as false the
contents of paragraph 31.3 of the applicant’s
replying affidavit.
[16]
The applicant in turn contends that paragraph 31.3 of its founding
affidavit does not amount
to hearsay evidence as it has appended
thereto the affidavit of Mr Henk Stolk
[6]
to whom the allegation was made. The applicant submitted that it, in
any event, had made out a proper case for spoliation in the
founding
affidavit. It further contends that should the court find that
paragraph 31.1 amounts to hearsay evidence, the court in
any event
has a discretion to admit same in terms of section 3(1) of the Law of
Evidence Amendment Act
[7]
.
[17]
I hold the considered view that paragraph 31.1 of the applicant’s
replying affidavit does
not amount to hearsay evidence as the
impugned statement contained therein was made directly to Mr Stolk
who deposed to an affidavit
confirming same. I further hold the
considered view that the respondents will not be prejudiced in their
defence as the applicant’s
case in any event is that the
allegations contained in paragraph 31.1 are not the basis of its
case, its case is based on the
de facto
possession it enjoyed
of the premises from which it was allegedly disturbed on the 24
th
December 2022.
FACTUAL BACKGROUND
[18]
Having dealt with the preliminary points raised, I now revert to the
primary dispute between
the parties. It is the applicant’s case
that on the 1
st
April 2022 an oral lease agreement was
concluded between itself and the 1
st
respondent for a
period of 5 years at a monthly rental of R13 222.40 plus VAT. The
parties reached the following agreement with
regards to payment of
the rental amount; the applicant will with effect from the 1
st
April 2022 until the 30
th
September 2022 pay a reduced
monthly rental of R6 611.20 which is half of the agreed upon monthly
rental of R13 222.40. The full
rental amount would then as agreed be
payable with effect from the 1
st
October 2022. During the
conclusion of the aforesaid oral agreement the applicant was
represented therein by Ms Wiid and the 1
st
respondent by
Mr Hendrik Johan Stolk.
[19]
Further, that since the commencement of the pharmacy practice, an
agreement existed between the
applicant and the 1
st
respondent for the supply of pharmaceutical products to the 1
st
respondent. The applicant contends that during the subsistence of
this agreement the 1
st
respondent fell into breach and is
allegedly indebted to the applicant to the tune of R22 million.
[20]
The dispute between the parties seems to have escalated to an extent
that, except for the present
matter, they are also apparently
embroiled in provisional liquidation proceedings in this Honourable
Court.
[21]
The above disputes notwithstanding, the applicant contends that it
enjoyed peaceful and undisturbed
possession of the premises since the
conclusion of the oral lease agreement. The applicant submits that
the basis of its possession
of the premises is the lease agreement it
concluded with the 1
st
respondent. It accordingly has no
qualms with the 2
nd
respondent and that the latter was
merely cited
ex abudanti cautela.
[22]
On the 14
th
December 2022, the 1
st
respondent, in what can only be seen as a precursor to the alleged
spoliation on the 24
th
December 2022, addressed a letter
[8]
to the applicant wherein it was alleged, amongst others, that the
applicant was in unlawful occupation of the premises as there
was no
valid lease agreement in place as well as that there was no proof
that rental for the premises was being paid. The applicant
was in the
said letter required to provide proof of lawful occupation of the
premises as well as proof of payment, failing which
they were
required to vacate the premises by close of business on the 15
th
December 2022.
[23]
In response, the applicant denied being in unlawful occupation
[9]
.
The applicant contends that it had
de
facto
possession of the pharmacy. It submits that the pharmacy it operates
at the premises is an institutional pharmacy and as such has
to be
operated by a registered pharmacist
[10]
.
The said registered pharmacist is Mr Gerhard Meyer who assumed duty
as such on the 19
th
December 2022 after his resignation from the 1
st
respondent. The applicant contends that it was at all material times
the owner of the institutional pharmacy licence as well as
all
merchandise in the pharmacy and that Mr Meyer as the registered
pharmacist and its employee, exercised control over same on
its
behalf.
[24]
On the 24
th
December 2022 Mr Meyer discovered that the locks were changed and
that as a result the applicant’s employees could not gain
entry
into the premises. Consequent to this the applicant addressed a
letter to the 1
st
respondent
[11]
on the 28
th
December 2022 wherein it demanded that its possession of the premises
be restored.
[25]
When the aforesaid letter did not yield the desired result, the
applicant approached this court
on the 30
th
December 2022
where it sought and obtained relief as per the 2
nd
February 2022
rule nisi
.
[26]
Pursuant to obtaining knowledge of the
rule nisi
, the
respondents filed a notice for leave to appeal the aforesaid
rule
nisi
and further prevented the applicant and or its employees
from accessing the premises, seemingly taking the stance that this
order,
albeit interim in nature, had the effect of a final order and
was thus appealable. This prompted the contempt of court proceedings
by the applicant, and an order in its favour, was granted on the 31
st
December 2022. The contempt of court proceedings have since been
withdrawn and I only mention them herein for the sake of
completeness.
SUBMISSIONS BY THE
RESPONDENTS
[27]
In their opposing affidavit the respondents submit that the applicant
was never in physical possession
of the premises as the pharmacy
concerned was run as an institutional pharmacy as opposed to a common
pharmacy. They further contend
that Mr Meyer, a registered pharmacist
and the 1
st
respondent’s employee until his
resignation on the 19
th
December 2022, was the person who
occupied the premises on behalf of the 1
st
respondent at
all relevant times. Thus the applicant never had control or factual
possession of the premises since Mr Meyer possessed
same on behalf of
his employer, the 1
st
respondent.
[28]
The respondents further contend that no rental agreement, oral
or otherwise, was ever entered into with the applicant. They contend
that the parties had intended to reach an agreement on the rental of
the premises but that the negotiations were never concluded
and that
no rental was ever paid to it. Consequently they contend that the
relief sought by the applicant is not available to it
as the
applicant cannot rely on a lease agreement as a right to assert its
occupation of the premises.
[29]
The respondents further submitted that the applicant does not know
who spoliated it. Support
for this contention, so it was argued, is
to be found in the applicant’s own papers wherein it is stated
that both respondents
were cited
ex abudanti cautela
. The
respondents further submit that the 2
nd
respondent is not
implicated at all in the alleged spoliation.
ISSUE FOR DECISION
[30]
It is against the aforesaid factual milieu that I am called upon to
decide whether the applicant
had peaceful and undisturbed possession
of the premises, and if so, whether the applicant was disturbed in
its possession and by
whom.
LEGAL FRAMEWORK
[31]
The requirements for the
mandament
van spolie
are
(a) peaceful and undisturbed possession of a thing; and (b) unlawful
deprivation of such possession. The
mandament
van spolie
is
rooted in the rule of law and its main purpose is to preserve public
order by preventing persons from taking the law into their
own
hands
[12]
.
[32]
It needs no restating that it is a possessory remedy which is
available to a person whose peaceful
possession of a thing has been
disturbed. It lies against the person who committed the
dispossession. The
mandament
is not
concerned with the underlying rights to claim possession of the
property concerned. It seeks only to restore the
status
quo ante.
It
does so by mandatory order irrespective of the merits of any
underlying dispute regarding the rights of the parties. What
constitutes
spoliation or unlawful possession must be determined on
the facts. The essential rationale for the remedy is that the rule of
law
does not countenance resort to self-help
[13]
.
[33]
The court in
Ngqukumba
v Minister of Safety and Security
[14]
succinctly held that
The
essence of the
mandament
van spolie
is
the restoration before all else of unlawfully deprived possession to
the possessor. It finds expression in the maxim
spoliatus
ante omnia restituendus est
(the
despoiled person must be restored to possession before all else). The
spoliation order is meant to prevent the taking of possession
otherwise than in accordance with the law. Its underlying philosophy
is that no one should resort to self-help to obtain or regain
possession. The main purpose of the
mandament
van
spolie
is to
preserve public order
by restraining persons from taking the law into their own hands and
by inducing them to follow due process.
[34]
The legal principles in regards of the
mandament
van spolie
are clear and very few defences thereto can be raised. The
applicant’s possession must be restored first and foremost (if
it would be legal to do so) and thereafter the dispute as to the
legality of any right relied upon could be considered
[15]
.
EVALUATION /
APPLICATION
[35]
On the probabilities it is manifest that the applicant was in
occupation of the premises, firstly,
as evinced by the tax invoice
dated 1 December 2022 issued to the applicant reflecting an amount
due for rental
[16]
. Why else
would the 1
st
respondent invoice the applicant for rental due on the 1
st
December 2022 if it was not aware that the applicant was in
occupation and or possession of the premises?
[36]
Secondly, albeit the 1
st
respondent’s stated case is based on the denial of possession
and occupation of the premises by the applicant, in reality,
if
regard is had to the communication exchanged between the parties,
what the 1
st
respondent is contesting is rather the underlying reason for such
occupation and or possession and not the
de
facto
possession of the premises. The heading and the contents of the
letter addressed by the 1
st
respondent to the applicant, after all, manifestly indicate that the
1
st
respondent is aware of the occupancy but takes issue with the reasons
therefor
[17]
.
[37]
Furthermore, it is common cause between the parties that Mr Meyer was
at all material times in physical control
of the pharmacy, the only
dispute being on whose behalf he was exercising control of the
premises. It follows that as Mr Meyer
was with effect from the 19
th
December 2022 in the employ of the applicant, he held control of the
premises and the inventory therein on behalf of the applicant.
The
applicant as a legal entity could not hold physical possession of the
pharmacy it had to do so through its employee and pharmacist,
Mr
Meyer.
[38]
It follows therefore that there could be no other finding other than
that the applicant was in
de facto
possession of the premises.
How and why it came to be in such possession is a matter irrelevant
to these proceedings, because good
title is irrelevant to the just
determination of the issue before this court. All that this court is
seized with determining is
whether the applicant was in
de facto
possession of the premises, and having found as I did, the next
question is whether the respondents unlawfully disturbed such
possession.
[39]
To fortify their argument that the applicant was not disturbed in its
possession, the respondents
referred the court to
Street
Pole Ads Durban v
Ethekwini
Municipality
[18]
and
asserted that the applicant could not rely on the lease agreement to
assert its possession. The court in the Street Pole case
supra
as per Cameron JA (as he then was) expressed the following remarks;
[15]
“This argument invokes the principle that an offending
respondent in a spoliation
application is generally not allowed to
contest the spoliated applicant’s title to the property. That
is because good title
is irrelevant: the claim to spoliatory relief
arises solely from an unprocedural deprivation of possession. There
is a qualification,
however, if the applicant goes further and claims
a substantive right to possession, whether based on title of
ownership or on
contract. In that case,
‘
the
respondent may answer such additional claim of right and may
demonstrate, if he can, that applicant does not have the right
to
possession which it claims.’
This is because such an
applicant –
‘…
in
effect forces an investigation of the issues relevant to the further
relief he claims. Once he does this, the respondent’s
defence
in regard thereto has to be considered …’
[16]
The qualification applies here. SPA’s application sought
classically spoliatory relief
in demanding the restoration of the
posters the municipality had despoiled (para 1.2). But, as Nicholson
J pointed out, its claim
went further. It pressed for an interdict,
not directed only to the despoiled property, but in wide terms
embracing all the ‘various
street poles in the Ethekwini
metropolitan area’ covered by the disputed agreements. That
claim spoiled for a fight about
its title to those poles, and it was
this fight in which the municipality was entitled to and did engage.
[40]
The reliance on the Street Pole case, in so far as the legal
principle articulated therein, is
correct. I however hold the
considered view that the present matter is distinguishable from the
Street Pole case.
In casu
all that the applicant is doing is
asserting that it was in peaceful possession of the premises until
unlawfully disturbed therein
by the respondents. I did not understand
the relief sought by the applicant to extend to asserting that it had
a right to possession,
it merely asserts its
de facto
occupation of the premises and seeks relief that restores the
status
quo ante
. The applicant does not seek an order directing that it
has a right of possession. As I understood its case, reference to the
lease
agreement alludes only to the facts from which the relief
sought stemmed.
[41]
Consequently I hold the considered view that the qualification in the
principle articulated in
Street Pole
supra
does not apply in
the present case as the applicant merely asserts
de facto
possession and does not go further to also assert a substantive right
to said possession.
CONCLUSION
[42]
Resultantly, I hold that the applicant was in peaceful and
undisturbed possession of the premises
until disturbed therein by the
respondents on the 24
th
December 2022. I am fortified in
this finding by the following; albeit that the applicant conceded
that it had no dispute with the
2
nd
respondent, the fact
is there is a clear nexus between the 1
st
and 2
nd
respondent. The latter being the owner of the premises in question
and the former acting as sub-lessor of the premises. It is
furthermore particularly illuminating that neither of the respondents
disavow locking and or issuing the instruction to lock the
premises,
choosing only to focus on the fact that the applicant stated in its
papers that it did not know who of the 2 respondents
spoliated it. In
view of the nexus between the respondents, the dispute between the
applicant and the respondents the most plausible
inference to draw is
that they are co-spoliators.
ORDER
[43]
Resultantly, I make the following order:
43.1
The 1
st
and 2
nd
respondents are ordered to
restore forthwith to the applicant full access to and undisturbed
possession of the premises situated
at Suite 1[..] Emoya Hospital, 7
F[…] K[…] Avenue, Groenvlei, Bloemfontein.
43.2. The 1
st
and 2
nd
respondents are ordered to pay the costs of this
application, the costs occasioned by the application for condonation
and the costs
occasioned by the application for leave to appeal the
2
nd
February 2023
rule nisi
, on a party and party
scale the one paying the other to be absolved.
43.3. Each
party to pay its own costs occasioned by the contempt of court
application.
_______________
NG
Gusha, AJ
On
behalf of the applicant
Adv.
DM GREWAR
Instructed
by:
HJ
BOOYSEN ATTORNEYS INC.
BLOEMFONTEIN
On
behalf of the respondent:
Adv.
M SNYMAN SC
Instructed
by:
SYMINGTON
& DE KOCK
BLOEMFONTEIN
[1]
Annexure
A3 of the founding affidavit comprising of the licence issued to the
applicant authorizing it to operate a pharmacy at
the premises in
terms of section 22A of the Pharmacy Act, Act 53 of 1974,
registration of Mr Gerhard Meyer as the responsible
pharmacist at
the premises with effect from 22 January 2022, a certificate
recording the applicant as an institutional pharmacy
conducting
business at the premises.
[2]
Respondents
opposing affidavit, pages 55-62 of the paginated papers.
[3]
Uitenhage
Transitional Local Council v South African Revenue Service 2004 (1)
SA 292 (SCA).
[4]
[2007] ZACC 24
;
2008
(2) SA 472
(CC) at para
[20]
.
[5]
Fn.
9.
[6]
Annexure
J of the replying affidavit.
[7]
Act
45 of 1988.
[8]
Annexure
A7 of the founding affidavit the subject of which reads “SUBJECT:
PREMISES OCCUPIED BY X-PHARM PHARMACY”.
[9]
Annexure
A8 of the founding affidavit.
[10]
Annexure
A3 to the founding affidavit.
[11]
Annexure
A9.
[12]
Bisschoff
& Others v Welbeplan Boerdery (Pty) Ltd
(Case
No. 815/2016)
[2021] ZASCA 81
(15 June 2021).
[13]
Monteiro
and Another v Diedricks
(Case
no 1199/19)
[2021] ZASCA 015
(2 March 2021) at par 14
[14]
2014
(5) SA 112
(CC) par 10
[15]
Harrismith
Intabazwe Tsiame residents Association(Pty) Ltd and Others v
Maluti-A-Phofung Local Municipality and Another (567/2022)
[2022]
ZAFSHC 151
(14 June 2022)
[16]
Annexure
A6 to the founding affidavit.
[17]
Annexure
A7 to the founding affidavit dated 14 December 2022.
[18]
(06/07)
[2008] ZASCA 33
(28 March 2008).