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[2021] ZAGPPHC 29
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New Dawn Commodity Trading Investment Group (Pty) Ltd v Amava Mining Investments (Pty) Ltd (58907/2020) [2021] ZAGPPHC 29 (12 January 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
(3)
REVISED.
12/01/2021
Case No:
58907/2020
In the
matter between:
NEW DAWN
COMMODITY TRADING INVESTMENT
GROUP
(PTY) LTD
Applicant
(Registration
Number: 2019/095059/07)
and
AMAVA
MINING INVESTMENTS (PTY) LTD
(Registration
Number:
2007/029473/07)
Respondent
JUDGMENT
MNGQIBISA-THUSI
J:
[1]
This is an application for a spoliation
order.
[2]
The matter came before this court on an
urgent basis on 30 December 2020. Having considered the
submissions made by counsel
and having read the documents file, on 31
December 2020, an interim order was granted in terms of which the
respondent,
Amava
Mining Investments (Pty) Ltd, was directed to restore to the
applicant, New Dawn Commodity Trading Investment Group (Pty)
Ltd,
access to the premises situated at Plot 1202 Platinum Drive,
Steelpoort, Extension 10, Steelpoort Industrial Park, Steelpoort,
Limpopo (“the premises”) and to assets on the premises
and listed in the order,
pending the
final determination of an application intended to be brought by the
applicant within 60 days of the order relating to
the respondent’s
purported cancellation of an agreement.
[3]
The respondent raised, as a point
in
limine
, the issue of whether this court
had jurisdiction to hear the matter. It was correctly pointed
out by the respondent that
the correct court having jurisdiction was
the Gauteng Local Division, Johannesburg. As the
domicilium
address is in Rivonia, the Gauteng Division and Local Division have
concurrent jurisdiction, with the Local Division being the
most
appropriate court to hear the matter. However, this does not
exclude this court from hearing the matter if it is in
the interests
of justice. Due to the urgency of the application, I am
satisfied that this court’s jurisdiction should
not be
excluded.
[4]
In
order to succeed in a spoliation application, the applicant has to
establish that it was in peaceful and undisturbed possession
of his
or her movable or immovable property or quasi-possession of an
incorporeal right, and that it was unlawfully deprived of
that
possession by the respondent. Violence or fraud is not an essential
element of the dispossession provided the act is done
against the
consent of the person despoiled and illicitly. In
Nino
Bonino v De Lange
[1]
the court described the
mandament
van spolie
in the following terms:
“…
is
any illicit deprivation of another of the right of possession which
he has whether in regard to movable or immovable property
or even in
regard to a legal right. He does not make violence or even
fraud an essential element, provided that the act is
done against the
consent of the person despoiled illicitly”.
Further
in
Ivanov
v North West Gambling Board and Others
[2]
the court stated the following:
“
19]
… The historic background and the general principles
underlying the
mandament
van spolie
are well established. Spoliation is the wrongful deprivation of
another's right of possession. The aim of spoliation is to prevent
self-help. It seeks to prevent people from taking the law into their
own hands. An applicant upon proof of two requirements is
entitled to
a
mandament
van spolie
restoring the
status
quo
ante
.
The first, is proof that the applicant was in possession of the
spoliated thing. The cause for possession is irrelevant –
that
is why possession by a thief is protected. The second, is the
wrongful deprivation of possession. The fact that possession
is
wrongful or illegal is irrelevant as that would go to the merits of
the dispute”.
[5]
The following facts are not in dispute.
[6]
On 16 March 2020, the parties concluded a
sale agreement (“main agreement”) in terms of which the
applicant undertook
to purchase from the respondent a chrome
processing plant situated at the premises. The salient terms of
the agreement included,
inter alia, the following:
6.1
the purchase price was set at R15 million.
6.2
the effective date of the agreement would be suspended pending the
applicant’s initial
deposit in the amount of R3,75 million
within 21 days of the signing of the agreement.
6.3
the balance would be paid in equal instalments over a period of 12
months, of which the
first instalment would be within 45 days of the
hand-over date.
6.4
the respondent would manage the sale of the chrome concentrate
through issuing interim and
final release notes.
6.5
the applicant would be responsible for the payment of rent and
utilities.
[7]
It is common cause that the applicant did
not pay the initial deposit on a date as envisaged in the main
agreement. However,
on 21 May 2020 the applicant deposited an
amount of R2,5 million towards the initial deposit.
[8]
On 24 August 2020, the parties concluded an
addendum to the main agreement which addendum varied certain terms of
the main agreement.
The addendum provided in part as follows:
8.1
the effective date of the agreement was set to be 24 April 2020;
8.2
the initial deposit was set to be R2.5 million; and
8.3
the hand-over date was provided to be 14 July 2020.
[9]
On 16 October 2020, the respondent (through
its representative Mr Pillai Prabaharan) sent the applicant a notice
of breach in which
it gave the applicant an opportunity to submit a
plan on how it intended to remedy its breach and comply with the
agreement.
This was followed by a letter (dated 17 October
2020) sent by the respondent’s attorneys giving the applicant
notice that
through defaulting in its payments it was in breach and
that it must remedy its default within 30 days of the notice.
[10]
On 31 October 2020, pursuant to Mr
Prabaharan’s proposal, the applicant submitted what it termed a
‘Remedial Action
Plan’ (“the Plan”) to which
no formal response was received from the respondent, even though Mr
Prabaharan had
voiced some reservations about the Plan. Despite
the applicant requesting from the respondent a response to the Plan
and
proposing a way of dealing with arrear rental of the premises,
the respondent did not respond. The issue of the arrear rental
relates to the fact that the premises on which the plant was located
were rented by the respondent from the owner of the premises.
[11]
In the meantime, on 02 November 2020, the
applicant concluded a sale agreement with an entity known as Amaya
Resources (Pty) Ltd
(“Amaya”) in terms of which Amaya
agreed to buy from the applicant a minimum of 5, 000 metric tons of
the processed
chrome at a minimum of 1,000 metric tons per week.
Pursuant to the agreement with Amaya and as envisaged in the
addendum,
on 17 December 2020 the applicant requested the respondent
to issue a Release Note to enable it to perform its obligations
towards
Amaya. The respondent failed to issue the Release
Note. Despite a reminder to the request for the issuing of the
Release
Note, the respondent did not do as requested.
[12]
On 21 December 2020, the respondent’s
legal representative sent the applicant a letter in which it was
given notice of the
cancellation of the agreement. On 22
December 2020, the applicant’s employees could not gain access
to the premises
as the respondent had locked them out by replacing
the keys to the premises and placed security guards at the gates.
Further,
the respondent also cut off the electricity and water supply
to the premises.
[13]
It is the respondent’s contention
that the matter is not urgent and that the urgency was self-created
because the applicant
was aware that it is in breach of the agreement
and that in terms of the agreement the respondent is entitled to
cancel it after
giving notice of the applicant’s breach on 17
October 2020.
[14]
On behalf of the applicant it was submitted
that the matter was urgent in that through the spoliation, its assets
were being exposed
to water damage and theft and that it was
prevented from supplying its only buyer, which order of 1000 tons of
chrome concentrate
was due on or before 4 January 2021.
[15]
It is trite that a spoliation application
ordinarily is dealt with on an urgent basis. Notice of
cancellation of the agreement
was given to the applicant on 21
December 2020 and on the same day, it was locked out. I am of
view that the applicant has
acted with the necessary speed to bring
this application and I am satisfied that, in view of the lock-out and
the agreement the
applicant concluded with Ameya and the due
performance on its part, the applicant would not have a satisfactory
remedy in the event
that the respondent’s cancellation is not
valid and Ameya has already cancelled the agreement and instituted
legal action
against the applicant.
[16]
It is the applicant’s contention that
the changing the keys to the premises and placing security guards in
order to prevent
access into the premises, was an act of spoliation
in that such prevention was done without the consent of the
applicant. It was
submitted on behalf of the applicant that it was in
possession of the premises from the time it took over the business
and that
the premises and the assets therein were under its control
and therefore that it had undisturbed and peaceful possession of the
premises.
[17]
It was further argued on behalf of the
applicant that by cutting off of the electricity and water supply at
the premises without
the applicant’s permission, the respondent
had unlawfully deprived it of its peaceful and undisturbed possession
of the electricity
and the water.
[18]
The respondent contended that since it had
given the applicant prior notice of its intention to cancel the
agreement unless the
breach was remedied, it was entitled to lock-out
the applicant from the premises. Further, it was submitted that
the applicant
could not complain of spoliation since it had removed
some 500 metric tons of chrome concentrate from the premises without
the
consent of the respondent.
[19]
There is no dispute that the applicant has
been deprived access to the premises and possession of its assets
which are located on
the premises. Further that the applicant
has been denied access to the premises which it has had possession of
since 17 July
2020.
[20]
It does not assist the respondent to defend
its actions on the basis that the applicant was in breach of the
agreement and that
it was entitled to cancel the agreement. In
order for the respondent’s actions to have been lawful it
needed either
the consent of the applicant or to obtain an eviction
order. As submitted on behalf of the applicant, the respondent
did
not respond to the applicant’s request for a release note
in order for it to perform on its obligations in terms of its
agreement
with Ameya.
[21]
I am of the view that the change of keys,
the placing of security guards at the premises and the cutting off of
the electricity
and water supply in order to prevent the applicant
and its employees from accessing the premises amounts to unlawful
dispossession.
It does not assist the respondent that it had
given the applicant notice of its intention to cancel the agreement.
The only
manner in which the respondent could gain control of the
premises was through the consent of the applicant or through legal
action.
[22]
I therefore come to the conclusion that the
applicant is entitled to an order in terms of its Notice of Motion
dated 28 December
2020.
[15]
Accordingly the following order was made:
‘
An
order is granted in terms of the draft order marked “X”.
NP
MNGQIBISA-THUSI
Judge
of the High Court
Appearances
For
Applicant: Adv L Adams (instructed by Elton De Bruin Inc)
For
Respondent: Adv L Grobler (instructed by Ayoob Kaka Attorneys)
[1]
1906
TS 120
at 122.
[2]
2012
(6) SA 67
(SCA).