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[2021] ZAGPPHC 248
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Youth Laboratories (Pty) Ltd v Vresthena (Pty) Ltd (12248/2021) [2021] ZAGPPHC 248 (19 April 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:
12248/2021
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
YOUTH
LABORATORIES (PTY) LTD t/a YOUTH LAB
Applicant
(Reg
No: 1994001064)
and
VRESTHENA
(PTY) LTD t/a GREY OWL VILLAGE
Respondent
(Reg
No: 2001/015148/07)
JUDGMENT
NYATHI,
AJ:
INTRODUCTION
[1].
This is an urgent spoliation application wherein the applicant seeks
the following relief:
1.
That this application be entertained as one of urgency and that the
noncompliance with Rule 6(12) of the Uniform Rules of
Court with
regard to service and time periods be condoned.
2.
That the Respondent be ordered to: -
2.1
Restore possession of all the Applicant's goods situated at the
leased premises at UNIT 03A, GREY OWL SHOPPING CENTRE, PRETORIA
within three days from the granting of this order.
2.2
Provide the Applicant with undisturbed access to the leased premises
situated at the leased premises at UNIT 03A, GREY OWL SHOPPING
CENTRE, PRETORIA within three days from the granting of this order.
2.2
Provide the Applicant with undisturbed access to
the leased premises situated at UNIT
03A,
GREY OWL SHOPPING CENTRE, PRETORIA.
3.
That the Respondents pay the costs of this application on a punitive
cost scale.
4.
Further and or alternative relief.
[2]
At the commencement of the hearing of this application, the
Respondent raised a point in limine challenging the urgency of the
application. In the circumstances the Respondent assumed the duty to
begin and set out the reasons for its objection.
BRIEF
BACKGROUND
The
following facts were gleaned from the Applicant's founding affidavit,
the Respondent's answering affidavit and the Applicant's
replying
affidavit:
[3]
The applicant and the respondent had entered into an agreement of
lease in terms whereof the applicant had leased certain premises
from
which she conducted her business related to aesthetics.
[4]
On 15 December 2020, the Respondent withheld access to the leased
premises consequent to a dispute between them, by locking
the
Applicant out of the leased premises with a lock and chains.
[5]
The Applicant was thus spoliated and with the consequence that it was
deprived of its peaceful and undisturbed possession of
the leased
preemies.
[6]
The Applicant engaged the Respondent's representatives by
email correspondence back and forth from the 12th, 27th
and 29
January 2021 in its effort to resolve their dispute and have the
spoliation reserved, seemingly to no avail.
[7]
There is an undenied averment that the Applicant has on her part also
caused a counter-spoliation to be carried out on its behalf
whereat
some of the equipment in the leased premises were removed. It is
alleged that only a desk had remained behind.
[8]
At the risk of immersing my analysis too much on the merits, I now
retreat to consider the legal position regarding
urgency.
The importance of this arose at the commencement of the hearing
of this application. The Respondent raised a point in limine bringing
the issue of urgency into question.
THE
LAW
[9]
Rule 6 (12) regulates urgent matters, i.e., matters which need the
urgent or immediate attention of the court instead of awaiting
their
turn to be allocated a date of hearing in the ordinary course of
events. This subrule allows applicants to ask the court
to
"...dispense with the forms and service provided for in these
rules."
[10]
In this instant application, the spoliation event occurred on the
15th of December 2020. As stated above, there were the email
correspondences in the month of January 2021. Nothing is disclosed in
relation to February 2021. The matter was heard on the 23rd
of March
2021.
CONCLUSION
[
1
1
]
It is
apparent
from
the
above
timeframes
that
the
Applicant
did not act
in a manner one would expect from a person dispossessed and in
need
of
speedy
restitution.
More
than
three
months
have
passed
since
the
dispossession
took
place
and
the
matter
is
enrolled
on
the urgent
court roll. Tardiness of this nature must have triggered
Coetzee J
to remark that
"
Undoubtedly
the
most
abused Rule in this Division is Rule 6 (12)”
[1]
[12]
The Applicant has not made out a persuasive case for urgency in its
founding affidavit or give a sound explanation as to why
it took this
long before launching its application for a spoliation order. In
Luna
Meubel,
Coetzee J cautioned practitioners regarding contrived
urgent applications as follows:
"mere
lip service
to the
requirements
of
Rule
6
(12)
(b)
will
not
do and the
applicant
must
make
out
a
case
in the
founding
affidavit
to justify
the
particular
extent
of
the
departure
from
the
norm,
which
is
involved
in the
time
and
day
for
which the
matter
be
set down."
[2]
[13]
In
Mangala v
Mangala
1967 (2) SA 415
(E)
the court held as follows: "It does not follow that, because an
application is one for spoliation order, the matter automatically
becomes one of urgency. The applicant must either comply with the
Rules in the normal way or make out a case for urgency in accordance
with the provisions of Rule 6(12)(b)."
[14]
In
East Rock
Trading
7
(Pty) Ltd and others
v Eagle
Vall
e
y
Granite
(P
t
y)
Ltd and others
(2012) JOL 28244
GSJ at par 6 and 7 it was held "The import thereof is that the
procedure set out in Rule 6(12) is not there for the taking.
An
applicant must set forth explicitly the circumstances which he avers
render the matter urgent. More importantly, the applicant
must state
the reasons why he claims that he cannot be afforded substantial
readdress at a hearing in due course. The question
of whether a
matter is sufficiently urgent to be enrolled and heard as an urgent
application is underpinned by the issue of absence
of substantial
readdress in the application in due course. The rules allow the court
to come to the assistance of a litigant because
of the latter, were
to wait for the normal course laid down by the rules, it will not
obtain substantial redress." [own emphasis]
Accordingly,
I make the following order:
The
application is struck from the roll with costs on an attorney and
client scale.
JS
NYATHI
Acting
Judge of the High Court of South Africa
Gauteng
Division, Pretoria
HEARD
ON:
8
th
March 2021
DATE
OF JUDGMENT:
19
th
March 2021
FOR
THE APPELLANT:
ADV JH LERM
ATTORNEYS
FOR THE APPLICANT: STEENKAMP VAN NIEKERK ATTORNEYS UNIT EI, 93
REGENCY DRIVE ROUTE 21 CORPORATE OFFICE PARK IRENE, GAUTENG
Tel No.
012 882 0976
Email:
christo@svninc.co.za
;
ca3@svninc.co.za
REF: C VAN
NIEKERK/CV101019
FOR
THE RESPONDEN T:
ADV M
LOU W
ATTORNEYS
FOR THE RESPONDENT :
NCS
INCORPORATED ATTORNEYS
LAWLEY
STREET, WATERKLOOF, PRETORIA, 0181
TEL:
082
609
8938
TEL:
079
888
2991 E-
Mail:-
nicole@ncs
i
nc.co.za
REF:
NCS1263/CG/NSwart
[1]
Luna
Meubel
Vervaardigers
(Edms) Bpk v Makin and Another
(t
l
a
Makin
's
Furniture
Manufacturers
[1977]
2
All
SA 156 (W)
[2]
Page 137