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[2022] ZANCHC 10
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Jacobs and Others v Zinvomax (Pty) Ltd and Another (1956/2021) [2022] ZANCHC 10 (11 March 2022)
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
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 1956/2021
Reportable:
NO
Circulate
to Judges: YES
Circulate
to Magistrates: NO
Circulate
to Regional Magistrates: NO
In
the matter between:
WILLEM
JACOBUS PETRUS JACOBS
1
st
Applicant
HUANG
FENG
2
nd
Applicant
KAMAL
HOSSAIN HAJI
MAMTAZ
3
rd
Applicant
VELILE
MAKHAZA
4
th
Applicant
and
ZINVOMAX
(PTY)
LTD
1
st
Respondent
BERNARD
MARKRAM
2
nd
Respondent
Coram:
Lever J
JUDGMENT
Lever
J
1.
In this matter I discharged the
rule
nisi
. These are my reasons for doing so
and also my ruling on the costs of the matter.
2.
On the 21 September 2021 a rule nisi was
issued out of this court in the following terms:
“
2.
That pending the return of the rule
nisi
below:
2.1 The
First and Second Respondents are ordered to restore the Applicants’
undisturbed possession of the
Applicants’ businesses and the
property situated at Erf [....], Kuruman, Northern Cape;
2.2
The First and Second Respondents are interdicted and prohibited from
dismantling, demolishing and/or removing the
buildings, structures
and/or attachments situated on Erf [....], Kuruman, Northern Cape;
2.3
The First and Second Respondents are interdicted and prohibited from
fencing off, cordoning off and/or interfering
with the applicants’
access to and from Erf [....], Kuruman, Northern Cape.
2.4
That the prayers set out in paragraphs 2.1 to 2.3 serve as an interim
order with immediate effect.
3.
That a rule
nisi
is hereby issued returnable on Friday 22 October 2021 at 09h30 or so
soon thereafter as the matter may be heard why:
3.1
A final order should not be granted in terms of prayer s2.1 to 2.3;
3.2
The First and Second Respondents should not be ordered to pay the
Applicants’ costs on an attorney and client
scale, jointly and
several, the one paying the other to be absolved.”
3.
The extended return day of the rule
nisi
was the 4 March 2022. As is set out above, I discharged the rule
nisi
and indicated my reasons for doing so would follow. I also reserved
my decision on the question of costs in the matter, which will
also
be dealt with herein.
4.
The applicants essentially sought a
mundament van spolie
in
relation to the business premises that they individually occupy on
Erf [....] Kuruman. The applicants founding affidavit in the
matter
was written to cater for a possible spoliation only. There was a
debate as to whether all of the relief sought by the applicants
can
be classed as relief strictly required for a spoliation or whether
certain of the relief claimed was another form of interdict
which
required a different case to be made out in the founding affidavit.
This debate will be dealt with presently.
5.
The relevant local municipality is the
current owner of Erf [....], Kuruman. It is not a party to the
present proceedings for a
spoliation order against the two
respondents. There are two further applications presently pending
before this court that can be
described as relating to the present
matter. The first under case number 1160/21, an application to evict
certain of the current
applicants
inter
alia
. Secondly, under case number
316/21 (this review was only instituted in 2022 on the face of it the
case number seems incorrect)
an application to review the award of a
long lease and cession thereof to the current first respondent. The
relevant local municipality
is a party to these further two
applications.
6.
During the evening of 22 August 2021 one of
the structures on Erf [....] caught fire. Depending upon whose
version one accepts this
structure was destroyed by fire and unsafe
to occupy or this structure was partially destroyed by fire.
7.
It is important to note that there are
several structures on Erf [....]. The first and second applicants
occupy the building referred
to as the adjacent building in the
papers. The third and fourth applicants occupy what applicants refer
to in the founding affidavit
as the partially burnt building. The
premises that the third and fourth applicants occupy or occupied, as
the case may be, are
referred to by way of shop numbers. The problem
is that nowhere in the founding affidavit or anywhere else in the
papers are the
locations of the actual shop numbers set out in a way
that would enable one to establish in which structure on Erf [....]
such
shops would be located.
8.
The respondents have supplied an aerial
photograph of Erf [....]. This photograph appears as annexure “B”
to the answering
affidavit. All parties have accepted that annexure
“B” is a true representation of Erf [....] and the
structures that
stood or stand on the said Erf.
9.
A further difficulty arises in that the
applicants choose to describe this building in a way that includes
another structure on
the same side of Erf [....] and collectively
refer to these two structures as the partially burnt building. By
contrast the respondents
refer to only one of these structures, which
they have outlined in blue on the aerial photo being annexure “B”
to the
answering affidavit. In my view these are two separate
structures for a number of reasons: Although they are on the same
side of
Erf [....] each of them is set at a slightly different angle
to the boundary line of Erf [....]; The structure that is closest to
the corner of the Erf has a separate roof structure; The structure
that is closest to the corner of the said Erf is clearly broader
in
width; and it appears that the respective roofing was set at
differing pitches.
10.
The problem that applicants’ electing
to refer to these two structures collectively creates is that from
the founding papers
it is not possible to say in which structure the
third and fourth applicants conducted their respective business. This
position
is cleared up in the replying affidavit. In fact, the fourth
respondent goes further in reply and sets out how the respondents
through their employees broke down the walls of his shop that he
reconstructed and disposed of the building materials he acquired
to
rebuild his shop after the fire.
11.
The
problem is that the deponent to the founding affidavit for the
applicants did not set out any of this in the founding affidavit.
Nor
is any of this set out in the confirmatory affidavit filed by the
fourth applicant that was filed with the founding affidavit.
The
consequence being that this was not the case that the respondents
were required to meet. It is trite that an applicant must
make out
his case in the founding affidavit and is not permitted to do so in
reply. This is so because respondents must know what
case they are
required to meet.
[1]
Accordingly, on this aspect, I can have no regard to what is set out
on behalf of fourth applicant in reply.
12.
It appears from the founding affidavit that
third and fourth applicants traded from premises that was in the
structure destroyed
by fire. On the face of it, that is the case made
out by the applicants in the founding affidavit filed on their
behalf. A somewhat
different factual position emerges from the
applicants’ replying affidavit. As set out above and for the
reason set out above
this court must deal with the situation that
arises from the founding affidavit.
13.
The next question is whether the destroyed
structure was safe for occupation or not. On the respondents’
version this structure
outlined in blue on the aerial photograph,
being annexure “B”, was not safe for occupation. On the
applicants’
version such structure was safe for occupation. On
the face of it, it looks like there is a dispute of fact on this
issue.
14.
However, if one examines the evidence put
forward by the respective parties, it is evident that the ‘opinion’
put up
by the applicants does not constitute evidence that I can
legitimately have any regard to in this application. To illustrate
why
this is so, it is necessary for me briefly canvass and contrast
the evidence adduced by the respective parties.
15.
This issue was not dealt with directly by
the applicants in their founding papers, where it ought to have been
fully canvassed.
The reason why it ought to have been fully canvassed
is self-evident. One cannot restore the status
quo
ante
if the structure is unsafe to
occupy. In such circumstances, a return to the status
quo
ante
is impossible.
16.
The applicant does raise this issue in a
letter annexed to its founding affidavit, being annexure “FA1”
thereto, a letter
from the applicants’ attorney dated 9
September 2021. In the said letter, the attorney writes: “We
have obtained the
services of a structural engineer who have (sic)
certified that the buildings damaged by the fire have no structural
damage.”
In a letter dated the 10 September 2021 the attorney
representing the respondents contests this assertion. Such letter is
annexure
“FA2” to the founding affidavit.
17.
Despite the issue of the structural
integrity of the burnt-out structure being placed in dispute, this
issue is not canvassed in
the founding papers by the applicants.
Clearly, it should have been canvassed in the founding papers, it is
central to the relief
which the applicants seek. As is set out above,
a return to the status
quo ante
is not possible if the structure is not safe for occupation.
18.
It
is well established in our law and practice that in motion
proceedings, a party must set out its case in its affidavits. One
cannot simply annex documents to the affidavit and ask the court to
have regard to such documents. It is necessary to set out in
the
relevant affidavit which portion of the document you rely on and why
it is relevant to your case. Again, the underlying rationale
for this
well-established rule is that the opposing party must be in a
position to know precisely the case it has to meet and not
be forced
to speculate on the purpose of any number of documents containing any
number of contentions that are merely annexed to
an affidavit without
more.
[2]
To hold otherwise would
render motion proceedings completely unworkable. As set out above,
the applicants have not done this even
though this issue was clearly
contested in the correspondence.
19.
Returning to the question of the nature of
the evidenced adduced by the applicant on the structural integrity of
the relevant structure.
Aside from the fact that this issue ought to
have been dealt with in the applicant’s founding affidavit and
clearly wasn’t,
the applicant responding to a report by a
structural engineer annexed to the respondents’ answering
affidavit, files a letter
annexed to its replying affidavit from an
engineer dated 9 September 2021. Attached to this letter is a
confirmatory affidavit
drafted for the author of this letter. The
glaring problem with this is that such supporting affidavit is not
deposed to by the
author of the aforesaid letter.
20.
There is no explanation before this court
as to the reason for the engineer who ostensibly authored the
relevant letter, being annexure
“RH3” to the replying
affidavit did not depose to the confirmatory affidavit. There is no
attempt to authenticate the
opinion expressed in annexure “RH3”
by any other acceptable means or provide a further opinion from
another suitably
qualified engineer. In the circumstances, aside from
the fact that the applicant had not established in the founding
affidavit
that the relevant structure was safe to re-occupy there is
no evidence albeit in reply to which this court can take any
cognisance,
that the relevant structure was indeed safe after the
fire.
21.
The only admissible evidence before this
court on the aspect of the structural safety of the structure after
the fire is that adduced
by the respondents. The evidence adduced by
the respondents is that the said structure was not structurally sound
after the fire.
The photographs attached to the report provided by
the respondents showed steel roof trusses that were clearly buckled
by the effects
of the fire. There is no reason not to accept the
evidence of Mr Du Plessis on this aspect although his opinion is
based purely
on the photographs annexed to his report. He did not
examine the building personally. Nonetheless his evidence is
admissible and
relevant and has not been shown to be unreliable on
any basis. It is not contested by any admissible evidence.
22.
In respect of the case presented by the
third and fourth applicants there are at least two fundamental
problems. The first is that
the relevant structure was destroyed by
fire and the evidence establishes that the structure was not safe to
occupy after the fire.
The second is that on the respondents’
version the relevant structure had already been demolished by the
time that the order
had been obtained in this matter. This is
contested in reply.
23.
The manner in which it was contested by the
applicants is instructive. The applicants merely deny the contention
that the demolition
of the relevant structure had been completed on
21 September 2021, when the rule
nisi
in this matter was obtained. The applicants then proceed to state:
“
164
After the application was brought, the Second Respondents’
workers ceased working and sat around until the order
was granted,
whereafter they left the premises at about 18h00.”
24.
What the applicants must mean by using the
phrase “After the application was brought …” is
that after the application
was served the respondents workers stopped
all work. The rest of the sentence is self-explanatory. The
interesting thing about
this is that both applicants and respondents
have, in the manner they have conducted their respective cases,
clearly both adopted
the position that relevant structure has been
demolished. If: as the applicants allege the respondents’
workers stopped work
when the papers were served and did no further
work and left the site after the order was granted; also, if the said
structure
has indeed been demolished, as both parties conducted their
respective cases, then logically the denial given by the applicants
is a strategic and false denial. The structure must have been
demolished when the papers in this application were served.
25.
Then
on the contentions in the founding affidavit that the third and
fourth applicants conducted business from the fire damaged
structure,
then the respondents have established as a fact that it would be
impossible to restore the third and fourth respondents
to possession
of their respective business premises. The Appellate Division (AD),
as it then was, in the matter of ADMINISTRATOR,
CAPE & ANOTHER v
NTSHWAQELA & OTHERS
[3]
stated the position to be as follows:
“
It
is trite that a Court will not engage in the futile exercise of
making an order which cannot be carried out.”
[4]
“
In
the context of the mandament van spolie, impossibility is a question
of fact, and where it is contended that an order should
not be
granted because it cannot be complied with, it must be shown that
compliance is impossible on the facts.”
[5]
26.
The upshot of this is that on the facts as
alleged it is impossible to restore the fourth applicant to
possession of his business
premises. So, an order to that effect
cannot be made.
27.
The third respondent is in a somewhat
different position although from the founding affidavit it appears
that his premises was in
the structure that burned down, this is not
in fact the case his business premises is in the structure on the
same side of Erf
[....] but closer to the corner of the said Erf.
That structure was not influenced by the fire to the extent that its
safety was
ever compromised. As a matter of fact, the third
respondent has not been deprived of possession of his business
premises.
28.
There has been a contention that one of the
two pedestrian gates that gave access to both structures on that side
of Erf [....]
was welded shut. However, the applicants’ version
is that this was observed during a visit to the site by applicants’
attorney, some days before the rule
nisi
was moved, who confronted the workers that welded the said gate shut.
Whereafter the said workers stopped welding the gate shut
and the
evidence was that the second gate was never welded shut.
29.
Therefore, on the applicants’ own
case, the third applicant and his customers were never deprived of
access to the business
premises of the third applicant. It follows
from this set of facts that the third applicant is also not entitled
to a spoliation
order.
30.
There is a further aspect to the case of
the third and fourth applicants that needs to be mentioned. There was
correspondence between
the respective attorneys on the 9 September
2021 and the 10 September 2021. At the time the applicants’
attorney represented
the first and second applicants together with
two other parties who are respondents in the eviction application but
are not parties
to the present application. At that stage applicants’
attorney did not represent the third and fourth applicant. The
applicants’
attorney in the letter dated 9 September 2021 wrote
to the respondents’ attorney and demanded an undertaking that
the business
premises of the parties he then represented not be
demolished. At that stage none of the parties that applicants’
attorney
then represented were affected by the burnt structure or its
pending demolition.
31.
The respondents’ attorney gave an
undertaking that those persons business premises who were then
represented by applicants’
attorney would not be demolished but
made it clear that the burnt structure would be demolished. The
applicants’ attorney
in a letter also dated 10 September 2021
accepted that undertaking.
32.
Then between the 10 September 2021 and the
launching of the application on the 21 September 2021 the said
attorney took on the third
and fourth applicants as clients. He did
not seek a new undertaking from the respondents’ attorney, nor
did he withdraw his
acceptance of the first undertaking given on
behalf of his then clients. Further, the applicants took no trouble
to explain this
position in the papers they placed before the court
granting the rule
nisi
.
33.
This leaves the position of the first and
second applicants. It is common cause from the papers that the
business premises occupied
by both the first and second applicants
has not been demolished. There have been vague allegations of threats
to do so, but this
is raised in a manner that I cannot place any
reliance on such contentions.
34.
In respect of the first and second
applicants the issue is really the fence that was built around two
sides of that (adjacent) building.
Both first and second applicants
contend in the founding papers that this fence prevents delivery of
goods by truck to them. They
do not explain how. In the replying
affidavit the first applicant goes further and states that trucks
could not access his property
for remedial work on the trucks. On the
authority set out above, the first applicant cannot make out his case
in reply. The case
the respondents had to meet is that deliveries
could not be made to the first and second applicants.
35.
In that context the applicants had to
explain why they were spoliated by the erection of the fence. This
has to be evaluated in
the context of: the contention that the fence
was only around two sides of the building; the contention that on the
13 September
2021 the site was visited by the applicants attorney
that poles were planted on two sides of the adjacent building and
that wire
had been delivered to complete the fence, further that the
said attorney confronted the workers who then stopped work on the
fence;
and the respondents never completed the fence around the
adjacent building.
36.
It must be remembered that this is on the
applicant’s own version the fence was not completed at the time
this application
was brought. The only interference alleged by the
first and second applicant in the founding affidavit is that they
could not receive
deliveries by truck due to the poles being placed
too close to each other. However, they do not explain how this made
it impossible
to receive deliveries because it is only if it is
impossible to receive deliveries that one can say they have been
spoliated. If
the partially constructed fence means that the
deliveries by truck had to be offloaded 1 to 5 meters further on, it
is not a spoliation
but only an inconvenience. Which means that they
would have to seek a different type of relief in any court process.
The onus was
and remains on the applicants to establish that they
were effectively despoiled of their right to occupation of the
premises. They
have not done so in these circumstances.
37.
There are further aspects relating to this
partially complete fence around the adjacent building. The
respondents allege that the
fence poles had been cut down before the
application was launched. Thus, on the respondents’ version
there had been a counter-spoliation
before the present application
was launched. This is denied in the replying affidavit. Applicants’,
contend that the fence
posts had been cut down after the rule
nisi
had been issued. Applicants’, further contend that they have no
idea who cut these fence posts down.
38.
Having regard to my finding that first and
second applicants have failed to establish that the partially
constructed fence effectively
deprived them of their occupation of
their business premises, there is no need for me to resolve the
dispute on the alleged counter-spoliation.
39.
In respect of the relief sought in prayer
2.2 of the rule
nisi
,
this is clearly relief in the form of a final interdict. Mr Van
Tonder, on behalf of the applicants’ characterised this
as
being ancillary to the spoliation relief. Even if this is so it still
remains a final interdict. The requirements for a final
interdict are
distinct from those of a spoliation order. Applicants have not set
out in their founding affidavits grounds for such
interdict.
40.
These are my reasons for discharging the
rule
nisi
.
I now turn to the outstanding issue on the costs of the present
application. The primary rule of costs is that this is in the
discretion of the court. The secondary rule of costs is that costs
normally follow the result.
41.
Both parties sought punitive costs orders
against the other party. The respondent on the basis that the urgent
application was an
abuse of the processes of this court. They were
afforded a mere 45 minutes notice before the rule
nisi
was set to be moved. It however emerged at the hearing hereof that
the rule
nisi
stood down so that respondents’ Counsel could appear to oppose
the rule nisi.
42.
The applicants’ moved for a punitive
costs order on the basis that the respondents were taking the law
into their own hands.
There was innuendo that the fire and subsequent
demolition and fencing off from the relevant structures was nothing
more than an
attempt to achieve the eviction of the applicant by
means other than court process.
43.
Undoubtedly, the conduct of the applicants
was rash, and their application was ill conceived. In my view the
question of costs relating
to this application must not be assessed
in isolation from the eviction application and to a lesser extent the
review, which are
both pending. One cannot avoid that this was the
context in which the present application was launched.
44.
Certain questions are legitimately raised
by the applicants regarding the fencing of the adjacent building. The
reason given by
the respondents for the fencing is compliance with
the health and safety requirements set out in the demolition permit.
It is not
contested that the fencing operation commenced some days
after the clean up and demolition started. If health and safety were
the
concerns of the respondents, then the respective fencing and
clean up operations should have been done in the reverse order to the
sequence in which they were done.
45.
Further, the question of fencing two sides
of the adjacent building was never adequately explained by the
respondents. The respondents
never established structural damage to
the adjacent building and that was never their case. It follows that
the respondents only
needed to secure the safety of the building
circled in blue on annexure “B”. The fence only needed to
link with the
wall of the adjacent building on each side of such
building, if the objective was to secure the safety of the worksite
for clearing
the building destroyed in the fire. This was not the
case.
46.
This conduct fed the narrative of the
applicants’ and was probably at least partially the cause of
applicants rushing to court
with this application.
47.
The applicants submitted that if the rule
nisi is discharged, I should order that each party should pay its own
costs, based on
the concerns that I have set out above.
48.
The respondents contended that the
application was still an abuse of the court process and that I should
still award a punitive
costs order.
49.
In my view neither of the two approaches
motivated by the respective parties would achieve the appropriate
equitable result in the
circumstances set out above. In my view costs
should follow the result as the application was both rash and
ill-conceived. A punitive
costs order in favour of the respondents is
inappropriate because their conduct particularly regarding the
fencing of the adjacent
building was not explained and cannot be
justified in the absence of a proper explanation. On the facts, this
appears to have been
a major driver of the applicants’ rash
conduct in launching the present application.
50.
In these circumstances I believe the
appropriate order to be made having regard to the fact that the
application was both rash and
ill conceived is that costs follow the
result. However, having regard to the respondent’s conduct
particularly regarding
the fencing I decline to make a punitive costs
order.
51.
The rule
nisi
having already been discharged, the only remaining order to be made
is the appropriate order regarding costs.
In
the circumstances, the following order is made.
1)
The applicants will pay the ordinary taxed
or agreed party and party costs, jointly and severally, the one
paying the others to
be absolved.
_____________________
Lawrence
Lever
Judge
- Northern Cape Division, Kimberley
Representation:
Applicants:
Adv AG Van Tonder oio Matthews
and Partners
Defendant:
Adv JA Venter oio Engelsman
Magabane Inc.
Date
of Hearing:
04 March 2022
Date
of Judgment:
11 March 2022
[1]
NATIONAL
COUNCIL OF SPCA v OPENSHAW
[2008] ZASCA 78
;
2008 (5) SA 339
(SCA) at 349A-B.
[2]
SWISSBOROUGH
DIAMOND MINES v GOVTERNMENT OF THE RSA
1999 (2) SA 279
(T) at
324F-H.
[3]
1990
(1) SA 705
(AD) at 720D and at 720G-H.
[4]
Above,
at 720D.
[5]
Above,
at 720G-H.