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[2022] ZANCHC 12
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QCK Lezmin 4791 CC and Others v Sikhova Importers CC and Another (1619/2020) [2022] ZANCHC 12 (4 March 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No. 1619/2020
Heard:
10/02/2022
Delivered:
4 /03/2022
Reportable:
YES / NO
In
the application between: -
QCK
LEZMIN 4791 CC
Applicant
(First Respondent in
proceedings
a
quo
)
LORE
TRADE AND INVESTMENTS (PTY) LTD
Second Applicant
(Second Respondent in
proceedings
a quo
)
DULOSTYLE
(PTY)
LTD
Third Applicant
(Third Respondent in
proceedings
a quo
)
and
SIKHOVA
IMPORTERS
CC
First Respondent
(First Applicant in
proceedings
a quo
)
RE:
HARD ROCK MINING (PTY) LTD
Second Respondent
(Second Applicant in
proceedings
a quo
)
JUDGMENT:
APPLICATIONS FOR LEAVE TO APPEAL
Moses
AJ
INTRODUCTION
1.
This is an
application for the leave to appeal my judgment and orders dated 12
November 2021, by the abovestated applicants respectively
on the
grounds set out in their respective notices of application for leave
to appeal.
2.
The application
was, by agreement, between the parties and the directive of this
Court, heard and agreed virtually on 10 February
2022. Judgment was
reserved pending this judgment.
3.
At the end of the
said hearing, Mr Wagener, who appeared for all three applicants,
hereafter the First -, Second and Third Applicants,
referred this
Court to certain case law and authorities which have a bearing on
part of my aforesaid judgment that “…it
is trite that
even a bona fide possessor of spoliated property can, in a particular
case, be ordered to restore the possession
so spoliated.” This
finding was based on two reported judgments referred to by this
Court, namely
Malan
v Dippenaar 1969(2) SA 59(O) at 65G to 66A,
and
Painter v Strauss
1951(3) SA 307(O).
4.
Since these
authorities were not referred to and/or listed in his heads of
argument submitted at the time, Mr Wagener undertook
to furnish this
Court with the said list, which he did, and which is appreciated by
this Court.
5.
Mr Van Twisk, who
appeared for the applicants in the application
a
quo
and for them as
the respondents opposing these applications, also requested a copy
thereof for his consideration and reply upon
receipt thereof, which
he did, and which is also appreciated.
6.
The
grounds upon which the applicants based their respective applications
for leave to appeal are meticulously set out in their
respective
notices of application for leave to appeal and amplified in the
comprehensive heads of argument by Mr Wagener on behalf
of the three
(3) applicants, filed of record. Hence it is not necessary to repeat
it herein.
7.
Mr Van Twisk had
also filed his comprehensive set of heads of argument on behalf of
the respondents, as well as a supplementary
note regarding the
additional list of authorities submitted by Mr Wagener.
8.
I have carefully
considered the grounds listed by the applicants in support of their
applications for leave to appeal as well as
their written and oral
submissions advanced on their behalf by Mr Wagener. I have also
carefully considered the written and oral
submissions advanced by Mr
Van Twisk on behalf of the Respondents. I return to these hereunder.
9.
Before
I do so, I consider it apposite to start with the threshold test for
an application for leave to appeal to succeed which
is that the
applicants must demonstrate that there is a reasonable prospect of
success on appeal.
See
section 17(1)(a)
of the
Superior Courts Act 10 of 2013
– The
Superior Courts Act.
10.
It is trite that
section 17
(1)(a) of the
Superior Courts Act introduced
a different
and higher threshold since its inception to be granted leave to
appeal than before its enactment when that threshold
was a reasonable
prospect that another Court might come to a different conclusion.
See
Van Heerden v Cronwright & Others
1985 (2) SA 341
(T) 343H. See
also Smith v
S 2012
(1) SACR 56 (SCA) paragraph [7].
It
is in this context that I deal with the respective applications for
leave to appeal.
THE
FIRST APPLICANT’S APPLICATION FOR LEAVE TO APPEAL
11.
Ad paragraph 1 thereof
It
is contended herein essentially that this Court erred in failing to
consider all of the evidence that was before the Court and
to which
particular reference was made by counsel for this Applicant during
argument. This is a wide and general statement. The
judgment of this
Court demonstrates, to my mind that all the relevant evidence
including the references made by counsel, were taken
into account and
properly considered. Hence, I would not grant lease to appeal on this
ground and is accordingly dismissed.
12.
Ad paragraph 2 thereof read with the second paragraph 5 thereof
12.1
It is contended
herein that this Court erred in failing to deal with the pertinent
argument that the Applicants
a
quo
– the
Respondents herein, did not make out a case for
spoliation.
Again, it must be pointed out that the said judgment reflects a
careful consideration and scrutiny of this “pertinent
argument,” and the act of spoliation, and for the reasons set
out therein could not, and did not find in favour of the then
respondents, more particularly the First Applicant herein.
12.
2
Mr
Wagener in his written heads of argument (
paragraph
17 to 26.4
) and in
his oral submissions to this Court, emphasised the disputed versions
of access and denial of access to the property and
submitted that, in
essence, based on the Plascon – Evans rule, that dispute be
resolved in favour of the Applicants, more
particularly the First
Applicant herein.
12.3
These submissions
lose sight of the objective fact on the papers, that the gates
providing access to the property, including the
mining area were
locked, and remained locked and were never unlocked and/or opened by
the First Respondent, the First Applicant
herein, and/or the other
Respondents
a quo
.
This evidence is undisputed. On the papers before Court, the then
Applicants – the Respondents herein – were only
given
permission to access the property subsequently to remove their
machinery and equipment from the property. Thus, whether or
not the
locks were changed, the fact of the matter is that the gates remained
locked, despite the various efforts made by and on
behalf of the
Respondents herein, including phone calls, WhatsApp messages,
involvement of the Second Respondent’s Mr Mompati,
the Second
Applicant herein, to mediate, unsuccessfully so. What else is that
but a physical denial of access to, and possession
of the property?
12.4
To my mind these grounds do not
demonstrate a reasonable prospect of success on appeal and hence it
also must be dismissed.
13.
Ad paragraph 3 thereof read paragraph 5 thereof
13.1
Herein it is
contended that this Court erred in granting and ordering that the
First Respondent, the First Applicant herein, is
to restore
possession of the property to the Applicants – the Respondents
herein – under circumstances where the First
Respondent –
the First Applicant herein – “was not in possession of
the mine” and as such is/was “incapable
of restoring
possession of the property to the Applicants” – the
Respondents herein.
13.2
These contentions
were not raised by the First Applicant
quo
First Respondent, neither on the papers, nor during argument at the
hearing of this matter. On the facts as set out in the judgment,
this
First Applicant is/was at all relevant times the owner of the
property, including the mining area and made common cause with
the
Second Applicant herein,
quo
Second Respondent, in opposing and denying the Respondents,
quo
Applicants, access to, and possession of that land including the
mining area. Furthermore, the First Applicant herein made common
cause with both the Second Applicant herein and the Third Applicant
herein, when the latter two entered into a separate agreement,
which
on the facts and objectively exists, as a result whereof the Third
Applicant herein was granted access to, and occupation
and possession
of that mining area amidst a contractual and access dispute amongst
the parties at the time.
13.3
In the
circumstances this ground also does not demonstrate, to my mind, a
reasonable prospect of success on appeal, and is accordingly
dismissed.
14.
Ad paragraph 4 thereof
14.1
Herein it is
contended that this Court erred in ordering the Third Applicant
herein,
quo
Third Respondent, to restore possession of the property to the then
Applicants in circumstances where there was no allegation or
evidence
that the Third Applicant herein in fact dispossessed the said
Applicants – the Respondents herein – of their
possessions of the property.
14.2
I refer in this
regard to what is stated in the abovestated
paragraph
13.2
, the contents
thereof are repeated herein. The evidence shows, or correctly pointed
out by Mr Van Twisk on behalf of the Respondents
herein (
in
their paragraph 4.2 of the written heads of argument
),
that the Second and Third Applicants herein concluded the said new
joint venture agreement regarding the property despite the
fact that
Mr PF Cloete is/was a director of the attorneys of the Third
Applicant –
quo
Third Respondent, as well as a director of the said Third Respondent,
which attorneys were at all relevant times privy to the dispute
regarding the said Applicant (the Respondents herein) access to and
possession of the property. The Applicants herein,
quo
the Respondents, refused to produce and discover this agreement to
the Respondents herein. However, that that agreement objectively
exists, is not disputed on the papers.
14.3
It is also not correct to state that
there was no allegations or evidence that the Third Respondents –
the Third Applicant
herein, in fact dispossessed the then Applicants
of their possessions of the property, if regard is being had to
prayer 2 of the
Notice of Motion and paragraph 3 of the founding
affidavit.
14.4
In the
circumstances I find that this ground for leave to appeal also does
not pass the test of demonstrating a reasonable prospect
of success
on appeal, and is accordingly dismissed.
15.
Ad paragraph 6 thereof
15.1
Herein it is
contended that this Court erred in failing to find that the
Applicants – the Respondents herein – abandoned
the
property, alternatively erred in finding that they may have abandoned
the property and erred in failing to find that the
mandament
van spolie
was not
available to the Applicants – the Respondents herein –
under circumstances where they were not factually in
possession of
the property.
15.2
In
this regard similar considerations as set out in my paragraph 12 and
13 hereinabove apply.
15.3
In the
circumstances I find that the is no reasonable prospect for success
on these grounds, and it is accordingly dismissed.
16.
Ad paragraph 7 thereof read with paragraph 9 and 10 thereof
16.1
Herein it is
contended that this Court erred in the failing to find that the
Applicants’
mandament
van spolie
was
actually a disguised enforcement or assertion of alleged and disputed
contractual rights.
16.2
I have dealt with
and referred to the basic legal principles in respect of spoliation
(paragraph 13 p 14
of the Judgment)
and
set out the reasons why, to my mind, the contractual disputes which
evidently exist amongst the parties, more particularly the
disputed
cancellation of the SUA and the JVA, could not be adjudicated upon by
this Court, having been seized with a spoliation
application
(paragraphs 77 –
80, p 50 of the Judgment)
.
16.3
I am also in
agreement with the Respondents’ submissions in this regard
(paragraphs 8.2 to
8.6 and paragraphs 10.1 to 10.3 of their written heads of arguments).
16.4
In the circumstances I find that
these grounds do not demonstrate reasonable prospects of success on
appeal and fall to be dismissed.
17.
Ad paragraph 8 thereof
17.1
In this paragraph
it is contended that this Court erred in finding that the equipment
and machinery in the Property was a manifestation
of the Applicants’
possession (the Respondents herein) of the Property and should
instead have found that the mere placement
thereof on the Property
does not create such a presumption or that the Applicants (the
Respondents herein) were merely disposed
thereof.
17.2
In this regard I am
in agreement with the Respondents that the undisputed fact that the
equipment and machinery were brought onto
the Property is undisputed
evidence that it was obviously brought to the prospecting area so as
to conduct prospecting thereon
which is furthermore evident,
inter
alia
, from the
tests conducted in the area which undoubtedly shows that the
machinery and equipment were obviously a manifestation of
possession
of the prospecting area.
17.3
In the
circumstances and to my mind there is no basis on which another Court
would on this ground come to another conclusion, and
accordingly
falls to be dismissed.
18.
Ad paragraph 11 thereof
18.1
The contention
herein essentially is that this Court erred and misdirected itself in
allowing further and additional evidence in
reply without an
application and in not affording the Respondents (the Applicants
herein) on opportunity to answer thereto, alternatively
erred in
failing to strike out new and argumentative and/or irrelevant matter
and facts in the replying affidavit.
18.2
In this regard, Mr
Wagener referred this Court again to the approach to replying
affidavits adapted by the Supreme Court of Appeal
with reference to
the cases he had cited in his written heads of argument. He
submitted,
inter
alia
, that the
Applicants herein were prejudiced as a result, and had to incur
unnecessary costs in the circumstances.
18.3
He conceded, on a
question by this Court, that the Respondents
a
quo
– the
Applicants herein, could have applied to file a further affidavit(s)
in response to the allegations and matters raised
in the replying
affidavit, but did not so apply. According to him a Court would grant
such an application only in exceptional circumstances,
lest the
floodgates for such further affidavits be opened.
18.4
I have
carefully considered these submissions as well as those advanced on
behalf of the Respondents herein and came to the conclusion
that
there is a reasonable prospect of another Court coming to a different
conclusion on the facts of this case.
18.5
In the circumstance
I find that leave to appeal on this ground ought to be granted.
19.
Ad paragraph 12 thereof
19.1
Herein it is
contended that this Court erred in failing, in accordance with the
Plascon – Evans principles to consider the
common cause and the
uncontested facts with specific reference to the cancellation of the
relevant agreements and the Respondents’
(the Applicants
a
quo
) inability to
rely on the cancellation of the agreements as an act of spoliation.
19.2
I refer in this
regard to what is set out in my Judgment, more particularly
paragraphs 56.14 to
56.41
thereof, and
additionally, point out two aspects:
a)
firstly, there was
not, nor could there have been any “cancellation” of
these agreements: it was alleged cancellations
which were always
disputed. As such it was still to be subjected to another Court
dealing with the contractual disputes, if so
instituted,
between/amongst the parties; and
b)
secondly, the
Applicants
a quo
– the Respondents herein, did not rely on this “cancellation”
as “an act of spoliation”; it was the
Respondents
a
quo
– the
Applicants herein – that relied on the alleged cancellation of
the SUA and JVA as a basis to deny the Applicants
a
quo
– the
Respondents herein – access to and possession of the property,
including the mining area.
19.3
In the
circumstances there is, to my mind, no reasonable prospect of success
on appeal on this ground, and it falls to be dismissed
accordingly.
THE
SECOND APPLICANT’S APPLICATION FOR LEAVE TO APPEAL
20
Ad paragraphs 1 to 1.7 thereof
20.1
Herein it is
contended essentially that this Court erred in granting the cost
order against the Second Applicant
a
quo
– the
Second Respondent – and should have granted a cost order in
favour of the Second Applicant in as much as the
only relief sought
against it was in terms of prayer 3 of the Notice of Motion, which
was abandoned by the Respondents herein.
20.2
I refer in this
regard to the facts and reasons as set out in this Court’s
Judgment. It is also not totally correct to state
that the only
relief sought against the Second Applicant was/is that contained in
prayer 3 of the Notice of Motion, in as much
as prayer 4 thereof
sought costs against it in the event of opposing the application,
which it did.
20.3
Moreover the Second
Applicant herein was the deponent to the answering affidavit, the
founding affidavit in the respect of the Application
to strike out
and, for the reasons set out in the judgment, made common cause with
the First – and the Third Applicants herein
(
quo
First Respondent
and Third Respondent) in opposing the totality of the application
launched by the Respondents herein. Hence the
Court was alive to all
the issues involved and gave appropriate weight to all those factors
and grounds enumerated in paragraphs
1.1 to 1.7 of the application
for leave to appeal.
20.4
With regards to the
contention that this Court erred in failing to make a cost order
against the Second Respondent herein, in favour
of the Second
Applicant herein, the relevant factors include,
inter
alia
, the
following: (as more fully appear from the Judgment):
a)
The Respondents
herein were acting at all relevant times in circumstances where there
was an understanding with the Second Applicant
herein, that the
Second Respondent herein was at all relevant times the envisaged
entity/company to be formed and incorporated
in terms of the JVA,
until this application was launched by the then Applicants –
the Respondents herein;
b)
Mr
Mompati, on behalf of the Second Respondent – the Second
Applicant herein, deposed to the answering affidavit, and on behalf
of the First – and Third Applicants herein;
c)
The said Mr Mompati
knew, at all relevant times, about this incorporation of the then
Second Applicant – the Second Respondent
herein;
d)
The
said Mr Mompati, in his aforestated capacity, then entered into
another JVA with the Third Respondent – the Third Applicant
herein, under circumstances where they were aware at the relevant
times, of the contractual disputes and the dispute regarding
access
to, and possession of, the mining area; and
e)
The said Mr
Mompati, in his stated capacity on behalf of the Second Respondent –
the Second Applicant herein, together with
the First – and
Third Applicants herein, refused to provide the Respondents herein
access to and/or a true copy of the said
JVA with the Third Applicant
herein.
20.5
In the
circumstances, to my mind, I am not persuaded that there is a
reasonable prospect of success on appeal on these grounds,
and
accordingly it falls to be dismissed.
21.
With regards to the
third ground as enumerated in paragraphs 3 to 3.5 of the Second
Applicants Application for leave to appeal in
(striking out
application), similar considerations apply as with regards to the
First Applicant set out in paragraph 18 above.
In the circumstances
the Second Applicant is granted leave to appeal on these grounds.
THE
THIRD APPLICANT’S APPLICATION FOR LEAVE TO APPEAL ON THIS
GROUND
22.
Ad paragraph 1 to 1.6 thereof
22.1
In this paragraph
it is contended that this Court erred in granting the relief sought
in prayer 2 of the Notice of Motion against
the Third Applicant
herein in the respects set out in the abovementioned paragraphs,
which overlap with the contention raised in
paragraph 4 of the First
Applicant’s Notice of Application for Leave to Appeal.
22.2
I refer in this
regard to what I have stated in paragraph 14 above where I have dealt
with the contention insofar of relates to
the First Applicant, which
similarly apply to the Third Applicant herein.
22.3
However, having
considered the First Applicant’s “List of Further
Authorities” as well as Mr Van Twisk’s
supplementary note
pursuant thereto, I am of the view that another Court might come to a
different conclusion on the facts of this
case and that the Third
Applicant herein would have a reasonable prospect of success on
appeal in he circumstances. In the event
the Third Applicant is
granted leave to appeal on this ground.
23.
Ad paragraph 2 thereof, including paragraphs 2.1 to 2.5
23.1
In this paragraph
it is contended that this Court erred in not granting a cost order
against the Second Respondent herein to pay
all costs of the
application that relates to the said Second Respondent’s
involvement in the disputes and failed to exercise
its discretion in
a judicial manner by failing in the respects specified in paragraph
2.1 to 2.5 of the Notice of Application for
Leave to Appeal.
23.2
In this regard, I
am in agreement with the submissions made by and on behalf of the
Respondents herein, in their paragraphs 14.2
and 14.3 of their
written Heads of Argument, and also refer to what is stated in
paragraphs 20.3, 20.4 and 20.5 above, which are
similarly applicable
in respect of the Third Applicant herein.
23.3
In the
circumstances this Court is not persuaded that there is a reasonable
prospect of success on appeal and this ground accordingly
falls to be
dismissed.
24.
Ad paragraph 3 thereof
24.1
Herein it is
contended that this Court erred in dismissing the striking out
application launched by the Respondents
a
quo
– the
Applicants herein, which overlap with the contention raised in
paragraph 11 of the First Applicant’s Application
for Leave of
Appeal.
24.2
For the reasons set
out in paragraph 18 above, I am similarly of the view that another
Court might come to a different conclusion
in the circumstances of
this case and hence that a reasonable prospect of success on appeal
exists. I would accordingly grant the
Third Applicant leave to appeal
on this ground also.
CONCLUSION
25.
Having carefully
considered these applications for leave to appeal as well as
counsel’s written and oral submissions, the
following orders
are made:
25.1
The
First Applicant is granted leave to appeal only on the grounds set
out in its paragraph 11 of its Application for Leave to Appeal,
to a
Full Bench of this Division.
25.2
The Second
Applicant is granted leave to appeal only on the grounds set out in
its paragraph 3 of its Application for Leave to Appeal,
to the Full
Bench of this Division.
25.3
The Third Applicant
is granted leave to appeal only on the grounds set out in its
paragraph 1 and 3 of its Application for Leave
to Appeal, to a Full
Bench of this Division.
25.4
The costs of the
applications for leave to appeal to be costs in the appeal.
J
J Moses
Acting
Justice
Northern
Cape Division
For
the Applicants
:
Adv. SD Wagner SC
(oio
. Van Der Wall
Inc.
)
For
the Respondents: Adv. M van Twisk
(oio
Haarhoffs Inc.)