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[2022] ZAFSHC 278
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Crezco Steel and Harwaree Traders (Pty) Ltd v Breeds and Others (2713/2022) [2022] ZAFSHC 278 (5 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION. BLOEMFONTEIN
Case
number: 2713/2022
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
CREZCO
STEEL
&
HARWAREE
TRADRES (PTY)LTD
Applicant
and
DAVID
EDWIN BREEDS
1st
Respondent
HILGARD
LOUIS LIDDELL
2nd Respondent
RONDELL107(PTY)LTD
3
rd
Respondent
CORAM:
AFRICA,
AJ
HEARD
ON:
18 AUGUST 2022
DELIVERED
ON:
This judgment was handed down
electronically by circulation to the parties' legal representatives
by email. The date and time for
hand down is
deemed to
have been at
13h00 on
5
October 2022.
JUDGMENT
INTRODUCTION
[1]
The
applicant submits that it is the owner of certain livestock which the
first respondent removed from the farm "Hulp",
without the
knowledge or consent of the applicant. At the time when this
application was launched, the second respondent had possession
of the
sheep, which livestock has since been moved. The purpose of this
application as alluded to, is a spoliation application
alternatively,
to temporarily retrieve the possession of the livestock pending the
outcome of an action by way of summons which
will be served
presently.
[1]
The
applicant submits that there is a real and present danger that the
livestock will be alienated by the first respondent.
[2]
Applicant submits that the said
livestock was unlawfully removed on or about 27 April 2022 and that
the first respondent's claim
that the livestock was purchased for or
donated to him, is both false and baseless.
[3]
Applicant
further argues that the livestock will be alienated by the first
respondent as he cannot account for the lack of accrual
since 2016
and at present the exact number of sheep is still unknown to
applicant and further is the exact number of the cattle
and their
whereabouts still withhold from the applicant.
[2]
[4]
In its answer, the first respondent submits that the application
should be dismissed
with costs because the applicant chose to launch
this application, being fully aware of the fact that a serious
dispute of fact
exists regarding the ownership of the livestock. The
first respondent termed this application so launched by applicant, as
frivolous
and
without
any merit.
[3]
BACKGROUND
[5]
It
is common cause that the first respondent was married to the daughter
of the deponent
[4]
, Mrs
Appelgryn, who is the sole director of the applicant. During the
course of the marriage, Mrs. Appelgryn decided to help the
first
respondent (her son-in aw),
establish
himself as a farmer.
[6]
According
to the applicant the third respondent
("Ronde/1107
(Pfy) Ltd'?
was
established, to purchase the farm Hulp, with the idea of conducting
farming operations for the profit of both applicant and
the first
respondent and to repay the mortgage in full. However, as the third
respondent could not obtain a loan from the bank,
an oral agreement
was concluded between Mrs Appelgryn and the first respondent that the
applicant will not be involved in the farming
operations. The terms
of the oral agreement was concluded along the following lines:
[5]
1.
That
the
applicant
will
purchase
the
farm,
Hulp,
and
it
will
be registered in its name.
2.
The farm, at all relevant times is the
property of applicant.
3.
A mortgage will be registered over the
farm.
4.
The applicant will be responsible for
the monthly payment of the mortgage bond.
5.
The
first
respondent
will
manage
the
farm
and
he
will
earn
a monthly salary.
6.
The first respondent will at all
reasonable times keep records and save the original source documents
as proof of expenses.
7.
It is the intention to farm with game
(sables and other game) and the cultivation of cash crops.
8.
Applicant will purchase the game, which
will
be
kept on the farm.
9.
Applicant will be responsible for the
expenses in connection with the farming operations whether it be to
grow crops, pay salaries,
purchase of animals, maintenance, upkeep of
machinery, or costs of husbandry etc.
10.
The consensus was that the first
respondent should farm in such a fashion that a profit is made which
in turn will repay the bond.
First respondents' obligation was to
generate enough profit to repay the mortgage bond over the farm in
full.
11.
The agreement was to establish a
profitable farming operation. It was never intended to be charitable.
It was raised by the first
respondent that the farm cannot be
immediately profitable. First respondent said that it will take about
five years before an even
break situation can be reached. They
then agreed to the time limit of five years.
12.
First respondent had an option to
purchase the farm after the mortgage had been fully paid, by profits
derived from the farm.
[7]
In divergence hereto, the first respondent submits that the applicant
purchased the
farm for first respondents' benefit and the agreement
between himself and the applicant was the following:
1
The applicant will purchase the farm and it would be registered in
the name of the applicant.
2.
First respondent would be responsible to
conduct the farming operation.
3.
The applicant would be responsible for
the payment of the mortgage bond registered over the farm.
4.
The applicant would be responsible for
the payment of all operating expenses until such time as the farm is
profitable, which was
estimated to be after a period of five years.
5.
The applicant would purchase nine sable
cows and one bull for the first respondent which would form the basis
of the farming operations
together with minor crops.
6.
At the end of the ten-year bond period
the first respondent would have the option to purchase the farm from
the applicant for the
original purchase price.
7.
The first respondent would render an
invoice to the applicant for an amount of R20 000,00 per month, which
amount would enable him
to cover his expenses for the period of five
years.
8.
It was contemplated that the first
respondent would be able to cover his expenses and the running
expenses of the farm after five
years where after the R20 000,00
payment and the payment of the running expenses would cease.
9.
No profit would be paid to the applicant
and the applicant would obtain all tax benefits derived from the
farm.
[8]
The
first respondent contends that when realizing that the game that was
purchased would not produce enough profit to cover the
expenses in
the estimated five-year period, he approached the deponent and
suggested that livestock should be purchased which would
produce a
profit much faster than the game. Hence the livestock never belonged
to the applicant
[6]
, as it was
never intended for the applicant to
become
involved in the farming operations.
[9]
It
is common cause that at the time when the first respondent and
deponent decided to venture into a farming operation, the first
respondent was still married to the deponents daughter, Zeldi.
[7]
However, applicant' submits that the during 2017, the first
respondent approached Mrs Appelgryn saying that farming operation
must be broaden to include the farming of sheep and cattle. By the
time the sheep was bought, the first respondent and Zeldi was
already
divorced. Further, that the sheep belonged to the company, who
retained ownership of the livestock, including all the accrual
derived from it. (proof of payment annexed marked annexure
"AA2").
[1
0
]
The
applicant
contends
that
it
only
recently
became
evident
that
the
first
respondent
has
registered
an
identification
mark
with
the
Department
of
Agriculture, Land Reform and Rural Development during 2018 in his
name without disclosing this fact to Mrs Appelgryn, who was
always
under the firm impression that the identification mark was registered
in the name of the applicant.
[8]
Applicant
correctly points out that the livestock with this identification mark
forms the core of the contention of the first respondent's
ownership.
[11]
The
first respondent however argue that the applicant was aware that the
livestock was marked with his identification mark. To bolster
his
assertion, the first respondent states that the livestock was
purchased when Mrs Appelgryn's daughter was still a Director
of the
applicant and therefore had full knowledge of the agreement that was
concluded between the applicant and the first respondent
and of the
issue of ownership. Consequently, Zeldi Botha have deposed to a
confirmatory affidavit confirming the terms and conditions
[9]
of
the agreement between the applicant and the first respondent as
stated by the first respondent namely; That the purpose of the
agreement was to enable the first respondent to own and operate a
farming operation in his own name; That the game and livestock
were
purchased for the first respondent by the applicant to enable the
first respondent to operate a farming
operation
for the benefit of himself and his family; that the first respondent
is the owner of the game and livestock; that the
applicant had
knowledge that the livestock was branded with the first respondents'
identification mark and that the certificate
of registration was kept
in Zeldi Botha's custody at the offices of the applicant.
[12]
In
refuting this assertion
[10]
,
the
applicant deny that she was ever under the impression that the
livestock would not be marked with the identification mark of
the
applicant as the applicant is the owner of the livestock as it was
bought and paid for by the applicant. Further that it is
clear from
the certificate of registration ("AA3") that the copy of
the said certificate, was made in such a fashion
not to display the
name of the party to which it was issued, in order for her not to
take notice thereof. Mrs Appelgryn notes that
the certificate was
kept under the control of her daughter Zeldi Botha, who was one of
the Directors at the time
but
there was however no resolution to the effect that the applicant
authorised the first respondent to apply and register an
identification
mark in his own name.
[13]
In
further
fortifying the assertion that the relationship between the applicant
and the first respondent has always been that of employer
and
employee, this court's attention is drawn to an extract of a letter
dated 4 May 2D22
[11]
in
reply to a letter from first respondent's attorney, where it reads:
"We
place on record that your client telephonically approached Mr. D
Steyn on or about 27 April 2002 in order to purchase the
sheep and
some other movable property and
pay therefore over a period of
three years
. Your client was advised to make an appointment with
Mrs. Appelgryn to discuss his proposal with her and to fix a price.
Your client
had a consultation with Mrs. Appelgryn on the 28
th
of
April 2022 at the office of Crezco Steel and Hardware Traders and
made the same proposal however, Mrs. A Appelgryn advised
your client
to provide her with the exact number of sheep to determine a price
and also requested Mr. D Steyn to provide her with
the purchase price
of the movable property that your client want to purchase".
(emphasis added)
[14]
Ms Appelgryn stated that she was quite amenable to the fact that the
first respondent may purchase
the sheep and the cattle as it would
have been preferable to applicant to cease the farming operation and
to sell the farm.
[12]
Applicant argues that the first respondent would never have
approached her with an offer
to
purchase, if he was already the owner of the livestock. It is denied
that first respondent was anything but an employee and the
sheep was
purchased from August 2017 to March 2018, after first respondent's
divorce from Mrs Appelgryn' daughter, in 2D16. To
further support the
assertion of an employer/employee relationship, Mrs Appelgryn during
January 2022 informed the first respondent
that his
salary
would be reduced due to the fact that the farm has not shown any
profit since 2015. (WhatsApp annexure
"M4")
.
[13]
In
response the first respondent accepted the reduction in salary
.
The first respondent
on
26 April 2022 was informed that the farm will be sold due to the
losses as it was evident that no profit will ever be forthcoming
in
the way that first
respondent
conducts
the
farming
operation.
(WhatsApp
annexure
"AA5").
[15]
Applicant argues that the first
respondent has at all times been employed
as a manager and by January 2022, when
the writing was on the wall, the first respondent accepted the
reduction in salary. By then
it was evident that the farming
operations does not generate a profit to repay the mortgage bond in
full, as
he
only managed to pay applicant the amount
of R308 177.68, by then.
[16]
In
contesting the existence of an employer/employee relationship, the
first respondent draws the attention of this court, firstly
to a
letter from his attorney dated 12 May 2022
[14]
,
in
response to applicant's letter dated 4 May 2022:
"Our
client admits that he had a settlement discussion with both Mr. D.
Steyn and Mrs Appelgryn regarding a possible purchase
of the sheep.
Our client however denies that he admitted that the sheep belongs to
your client. As this was a settlement discussion
in order to remedy
the dispute between the parties, such a negotiation was a negotiation
"without prejudice" to the rights
of our client.
It
is our instructions that during the heated discussions between our
client maintained
that
the sheep belongs to him and that the offers to purchase the original
number of
sheep
bought for him was merely a settlement proposal and
in no
way an admissions to
our client'
.
(emphasis added)
[17]
Secondly,
the first respondent denied that he was ever paid a salary by the
applicant.
[15]
The first
respondent states that he merely rendered the applicant with an
invoice for services rendered, so that the amount of
R20 000.00,
could be deducted for tax purposes. Further, that the first
respondent accepted the reduction in the amount of R20
000.00, as he
understood that it was initially assumed that it would only be for a
period of five years.
[16]
[18]
The first defendant argues that WhatsApp messages ("AA4 and
OA2") where the words "salary"
and Dave "Salaris",
is placed in inverted commas, lends credence to the fact that the
first respondent was never an employee,
but simply a person who
rendered invoices for services rendered. Had the first respondent
been an employee as contended, then applicant
could easily have
annexed salary slips, UIF or SARS records. Therefore, in the absence
thereof, first respondent maintains that
he was never an employee.
[19]
The applicant submits that WhatsApp message ("AA4") refutes
the argument that the applicant
had no interest in the animals and
first respondent's assertion that he could do with the animals as he
wishes. When the first
respondent is so confronted, he responds by
saying "I understand". It is argued that it is peculiar
why, if the first
respondent was indeed the owner, would he react in
this manner. Why would the first respondent not outright confront the
applicant
about what she wishes do with his sheep? The first
respondent also did not inform the applicant in his WhatsApp
response, when
he is informed that the farm is not for rent, that he
had already moved the sheep to the neighbouring farm of the second
respondent.
This behaviour on the part of the first respondent is
argued as being sinister, as the farm "Hulp" was big enough
to
farm the sheep, but the moving of the sheep should be viewed as
indicative of the obstruction of applicant to get to the sheep.
[20]
Applicant argues that it is entitled to
the spoliation order or if applicant fails to prove a clear right,
then the alternative,
that applicant hold the livestock, pending the
outcome of an action.
[21]
Applicant submits that when considering
an application of this nature, that the Plascon-Evans Rule holds
where factual disputes
arise in circumstances
where the applicant seeks final relief.
Echoed
in
Stellenbosch
Farmers' Winery Ltd v Stellenvale Wine,y (Pty) Ltd
[17]
where
the approach to factual disputes where a party moves for final relief
in motion proceedings was authoritively set out as follows:
"If
the material facts are in dispute and there is no request for the
hearing of oral evidence, a final order will only be
granted on
notice of motion if the facts as stated by the respondent together
with the facts as alleged by the applicant that are
admitted by the
respondent, justify such an order"
[22]
The court noted that there may be
exceptions to this general rule, such as where the allegations or
denials are so far-fetched,
or clearly untenable that the court is
justified in rejecting them on the papers.
[23]
The
first respondent argues that a court will dismiss an application if
the applicant should have realised when launching this application
that a serious dispute of fact, incapable of resolution on papers,
was bound to develop. Further, that having regard to the inherent
probabilities, the facts set up in contradiction by the first
respondent, when considered, cast serious doubt upon the case of
the
applicant, hence the application should not succeed. Further, that
there is even a dispute of fact with regard to the number
of
livestock, to be delivered. It is argued that the number of
livestock, namely 450, is as alleged by the son of the second
respondent,
with no confirmatory affidavit deposed to. This calamity
is captured in an extract of a letter dated 4 May 2022
[18]
,
addressed
to the second respondent;
"We
confirm that Mr. HJ Booysen, Mrs Appelgryn and Mr. Potgieter attended
to your farm yesterday to count the livestock (sheep)
however. it
was impossible to do so
. Your son however, was also present,
informed us that most of the livestock was counted and that it
amounted to 450 sheep which
includes lambs. He also advised us that
there is still a number of sheep with lambs which needs to be
counted, however, it will
take time as you have to determine which
lambs belong to which ewe."
[24]
In
this regard, the first respondent,
referred
this court to the case of
Stern
and Ruskin NO v Appleson
[19]
at
811
where it was stated that the property sought to be interdicted must
be
identifiable.
[25]
In
order
to obtain a spoliation order, two allegations must be
made and proved:
1.
That the applicant was in possession of
the property; and
2.
That the respondent deprived him of the
possession forcibly or wrongly against his consent.
[26]
With
reference to the case of
Yeko
v
Qana
[20]
applicant must show that she was in
de
facto
possession
at the time of being despoiled. In the case of
Mdlulwa
and Another v Gwija and Others
[21]
it
was stated that possession is the physical control by a person of a
corporeal thing with the intention of keeping the
control
of it for his own benefit.
[27]
The
requisites
[22]
for
the grant of an interim interdict, all of which must be present:
1.
A clear right on the part of the
applicant.
2.
A well-grounded
apprehension of irreparable harm if the
interim relief is not granted and the ultimate relief is eventually
granted.
3.
A
balance
of convenience in
favour
of
granting
of
the
interim relief; and
3.
The
absence
of any other
satisfactory
remedy available
to the applicant.
[28]
It
has long been settled in our law that the granting of an interdict is
discretionary.
[23]
The
remedy of the interdict itself has been described as unusual.
[24]
This
remedy is tem,ed discretionary in the sense that a court may not
grant an interdict in circumstances where there is an alternative
remedy available to an applicant for an interdict and which may
satisfactorily safeguard the right sought to be protected.
Put
differently the discretion of the court is bound up with the question
whether
the
rights of the party complaining
can
be protected by an alternative and ordinary remedy.
[29]
The
applicant maintains that the sheep and the cattle always remained the
property of and in the possession of the applicant, as
the owner.
Further that the fraudulent registration of an identification mark by
first respondent, does not prove ownership. The
applicant submits
that whilst negotiations with the first respondent was taking place,
he (first respondent) had already moved
the sheep and cattle, which
automatically provides for the unlawful removal.
[25]
Applicant submits that it was both the lawful owner and was in
undisturbed possession on the 26
th
of
April 2022, until it was despoiled by the first respondent.
[30]
The
first respondent contends that the applicant purchased the livestock
and game to enable him to conduct a farming operation,
which is why
he branded the livestock with his identification mark; so confirmed
by Mrs. Appelgryn's daughter. Further to this,
first respondent was
in possession of and cared for the livestock at all material times,
whilst Mrs. Appelgryn only visited the
farm on two occasions, prior
to the dispute arising, as she was never part of or involved in the
farming operation. He states that
when the livestock was delivered to
the farm, possession
thereof
was given to him and he remained in possession of the livestock,
until today. The first respondent denies that he unlawfully
removed
the livestock, as the livestock grazed on different farms forming
part of the farming operation and was simply moved to
winter grazing
pastures as has been done for several years.
[26]
For grazing purposes, first respondent submits that the livestock was
moved from Sinbaden to Trekpad, which farm is being leased
for such
purposes. First respondent submits that he only vacated the farm, due
to the fact that Applicant decided to sell the farm.
[31]
Applicant
argues that the immense prejudice lies against the applicant, in that
the first respondent owns nothing and if he sells
the property of the
applicant, the applicant will not only sustain a financial loss but
also lose its movable assets. Further,
that the first respondent can
most certainly sell or dissipate any number of sheep and cattle and
claim either that some of the
sheep died or was stolen.
[27]
Applicant submits that the first respondent does not have the
facilities or finances to maintain and look after the sheep, hence
why he took them to second respondent. It is argued that it is
patently clear that the first respondent has no intention to restore
possession to the applicant, as applicant
did
everything
in
its
power
to
avoid
coming
to
court
by
way
of
correspondence and negotiations, to resolve this matter. Applicant
submits that the balance of convenience
favours
the applicant in all respects.
[32]
First respondent, in answer submits that
as the owner of the livestock, has he no intention of alienating or
dissipating the assets.
He states that the livestock will be kept
safe and in good condition, pending any action. Further, that the
applicant has an alternative
remedy at its disposal being an action
for the return of the livestock, alternatively, a claim for damages.
[33]
In
Wightman
tla JW construction v Headfour (Pty)
Ltd
and Another
[28]
Heher
JA held that:
"A
real, genuine and
bona fide
dispute of fact can exist only
where the court is satisfied that the party who purports to raise the
dispute has in his affidavit
seriously and unambiguously addressed
the fact said to be disputed.
[34]
I
agree with the statement that factual averments seldom stands apart
from a broader matrix of circumstances all of which needs
to be borne
in mind when arriving at a decision.
[29]
[35]
What is evidently clear to this court is that there is a real attempt
by the first respondent,
to grapple with all the relevant factual
allegations, as made by applicant.
[36]
In
respect of the final relief sought, this court, in resolving to refer
a matter to evidence, has a wide discretion.
[30]
In
every case the court must examine an alleged dispute of fact and see
whether in truth there is a real dispute of fact which cannot
be
satisfactorily determined without the aid of oral evidence. Courts
should not be tempted to settle disputes of fact solely on
the
probabilities emerging from the affidavits without giving due
consideration to the advantages of
viva
voce
evidence.
[31]
This notice of motion comprises in totality 318 pages, testament to
the wide-range offactual disputes.
[37]
The court makes an order in the
following terms:
1.
It is the view of this court that the
matter be
referred to tria
l
as the dispute of facts in incapable of resolution on the papers and
are too wide-ranging for resolution by way of referral to
oral
evidence.
2.
Costs of the application follows the
result of the action.
AFRICA,
AJ
APPEARANCES:
COUNSEL
FOR THE APPLICANT:
Adv.
Grewar
Instructed
by:
HJ
Boorysen Attorneys Inc.
COUNSEL
FOR 1st RESPONDENT:
Adv.
Eis
Instructed
by: Niemann
Grobbelaar
[1]
Paragraph 5.3 of the founding affidavit.
[2]
Paragraph 5.4 of the founding affidavit
[3]
Paragraph 3.8 of the answering affidavit.
[4]
Of the founding affidavit.
[5]
Paragraph 7.3 of the founding affidavit.
[6]
Paragraph 28.5 of the answering affidavit.
[7]
Paragraph 2.6 of applicants heads of argument
[8]
Paragraph 7.8 of the founding affidavit.
[9]
Paragraphs 3.1 - 3.5 of the confirmatory affidavit.
[10]
At paragraphs 25.1 - 2504 of the replying affidavit.
[11]
Record page 81
[12]
Record, page 29, paragraph 14.2.
[13]
Record, page 19, paragraphs 8.2- 8.5.
[14]
Record, page 113.
[15]
Record, page 171 paragraph 35.1.
[16]
Record, page 172 paragraph 35.5.
[17]
1957 (4) SA 234
(C) at 235.
[18]
Record, page 73.
[19]
1951 (3) SA 800 (YI/).
[20]
1973 (4) SA 735
(A) at 739.
[21]
1992 (3) SA 776
(TI() at 777.
[22]
Setlogelo v Setlogelo 1914 AD 221.
[23]
United Technical Equipment Co (pty) Ltd v Johannesburg City Council
1987 (4) SA 343
(T); Burger v Rautenbach 1980 (4). SA650 (C) and
Grundling v Beyers
1967 (2) SA 131
(W).
[24]
Transvaal Property Investment Co v SA Townships Mining and Finance
Corp 1938 TPD 521.
[25]
Applicants heads of argument, page 10, paragraph 2.29.
[26]
Answering affidavit, Record page 158, paragraph 18.3.
[27]
Record page 45, paragraphs 23.3, 23.4, 23.5.
[28]
[2008] (3) SA 371.
[29]
Unravelling the Plascon-Evans rule by Anja Hofmeyr and Li tte van
Schalkwyk, article dated 26 October 2021
[30]
Lombard v Droprop CC
2010 (5) SA 1
SCA.
[31]
Sewmungal and Another NNO v Regent Cinema 1977 (1) SA814 (N) at
820F.