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[2019] ZAGPPHC 120
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Real Refreshments Supplier (Pty) Ltd v Ngubane and Others (14910/2019) [2019] ZAGPPHC 120 (4 April 2019)
IN THE HIGH COURT OF SOUTH
AFRICA,
GAUTNEG DIVISION, PRETORIA
CASE NUM BER: 14910 / 2019
4/4/2019
In
the matter between:
REAL
REFRESHMENTS SUPPLIER (PTY) LTD
APPLICANT
And
SIBONGILE
NGUBANE
1
ST
RESPONDENT
AMABOMVU
PROJECTS (PTY)
LTD
2
ND
RESPODNENT
THE
SERENGETI HOME OWNERS' ASSOCIATION
3
RD
RESPONDENT
JUDGMENT
MAVUNDLA
J;
[1]
The
applicant, formerly known as Drickus Crous Construction approached
this court on urgent basis in terms of rule 6(12) seeking
that the
court rules in respect of time frames and service be dispensed with
and that possession of the site situated at Erf 537,
Witfontein
Extension 27/30 (Serengeti Estate) , Ekurhuleni (referred to in the
applicant's application as "the stand")
be restored to the
applicant, with certain ancillary reliefs.
[2]
According
to the applicant, during or about January2015 it concluded a JBCC
Agreement with the first respondent for the construction
of a
residential property on the stan d. The stand is allegedly owned by
the second respondent and the third respondent is the
Home Owners'
Association for the Serengeti Estate, in which the stand is located.
[3]
During
or about May 2016, according to the applicant, a dispute which could
not be resolved developed between the parties and the
matter was
referred to adjudication on or about 3 October 20117.The respondents
alleged that the applicant abandoned the site in
May 2016, and this
remained in dispute. The alleged abandonment was referred for
adjudication proceedings, and an adjudication
award was made. The
issue relating to the question of abandonment and whether the
applicant has a builder's
lien
over
the stand and that this issue stands to be debated in a separate
forum in due course. The applicant alleged that it has no
bearing to
the present application. The applicant contends that it has a valid
and binding adjudication award in its favour.
[4]
The
other allegation by the applicant is that the adjudicator Adv. M. Van
Der Merwe published his determination on 29 May 2018,
in terms of
which he found in favour of the applicant and ordered the first
respondent to effect payment to the applicant in the
respective
amounts of R206 212. 00 and RSG 485.58 plus interest at the rate of
9.5% per annum on the aforesaid amounts from 1 September
20117 to
date of payment. The first respondent was further ordered to pay
applicant's costs of adjudication. The first respondent
remains in
default of the aforesaid adjudication award.
[5]
The applicant alleged that from May 2016 to date of the award
referred to herein above,
no third party, including the first
respondent took possession of, or any further steps in relation to
the stand. The applicant
further alleged that it had been placed in
possession of the stand in order to commence building works and has
at no stage relinquished
this possession, nor can any party be seen
to have taken possession thereof.
[6]
According
to the applicant on or about 1 June 2017 immediately after receipt of
the adjudication award, it erected two signs on
the property stating
that: "Kindly note that Drickus Crous Constriction (Pty) Ltd has
taken possession of this stand for purposes
of exercising its
building lien for improvements. Should you have any queries in this
regard, kindly contact Drickus Crous at dorous,
construction
@gmail.com."
[7]
The
applicant further alleged that the first respondent has never
questioned the applicant's possession over the stand. No further
construction has been performed on the stand same has been suspended.
The Gauteng Branch of the National Home Builders" Regi
str a t
ion Council ("NHBRC") has telephonically informed the
applicant that it remains enrolled builder in relation
if the stand.
(I must hasten to state that this is unconfirmed hearsay evidence to
be disregarded.)
[8]
In
respect of urgency, the applicant alleged that based on the
aforesaid, it remained in peaceful and undisturbed and undisputed
possession of the stand between the period of 1 June 2018 and 25
February 2019 as it exercised its right of retention over the
stand.
During about November 2018 the first respondent appeared to suggest
that she wished to re commence building, without
contacting the
applicant or offering any security for the applicant's claim. On or
about 15 November 2018 one Yvonne Peregrine,
the Head of the
Compliance for the third respondent , advised that they had been sent
correspondence by the Masenya attorneys stating
that construction
will be continued with on the site . The applicant doubts that any
building works have commenced, if it did,
it should have started as
far back as early June 2016.
[9]
The
applicant further alleged that it has been spoliated of the stand
when on 26 February 2019 Ms Perregil advised it that construction
work had commenced on the stand . I must hasten to state that there
is no confirmatory affidavit of Ms Perregil attached . Reading
this
paragraph together with the previous paragraph, it is clear that the
applicant has not been to the stand to make personal
observation of
the alleged spoliation.
[10]
The applicant in making up a case for
urgency, proceeds to state that applications of this nature are
inherently urgent, which has
been exacerbated by the fact that it has
been unlawfully dispossessed of its only security in relation to its
claim against the
first respondent. The situation is aggravated by
the fact that it remains the enrolled builder on site and new
builders are now
attending to the construction work. The liability
and obligations in relation to the construction on site remains that
of the applicant
and it cannot condone same. He further stated that
arbitration proceedings are imminent to commence. This might
necessitate inspection
on site.
[11] In
the matter of
Stocks
Housing v Department of Education and Culture Services, and Others
[1]
it was held as
follows:
"The element of unlawfulness
of possession which has to be shown in order to claim a spoliation
order relates to the manner
in which the dispossession took place,
not to the alleged title or right of spoliator to claim possession.
The cardinal enquiry
is whether the person in possession was deprived
thereof without his acquiescence and consent. Spoliation may take
place in numerous
unlawful ways. It may be unlawful because it was by
force, or by threat of force, or by stealth , deceit or theft, but in
all cases
spoliation is unlawful when the dispossession is without
the consent of the person deprived of possession, since consent to
the
giving up of possession of property, if the consent is genuinely
and freely given, negates the unlawfulness of the dispossession.
(At
240B-D.)
Held, that a building contractor
who entered upon the building cite and occupied and took control of
it in terms of his contract
in order to carry out work, and remained
in occupation for that purposes, has possession of the site which
might be protected by
a spoliation order. The builder possessed the
site in order to secure the benefit of his contract and should not be
deprived of
his possession and that benefit by an unlawful
dispossession of the site by the owner of the property or anyone
else. In the present
case, accordingly, the applicant had been in
possession of the site and the plant, equipment and materials onsite.
(At 239D-F)
The dictum in
Yeko v Qana
1973 (4) SA 735
(A) at
935 applied.
Held, further, that there might
very well be contention between the parties as to the right of
applicant to remain on the sit e,
as to whether respondents had been
entitled to terminate the contract and entitled to demand that
applicant cease the contract
works and vacate the site, but that was
not the concern of the Court in this application . Those questions
might have to be resolved
in future litigation but could not be
resolved in spoliation proceedings, where the applicant had not set
up any claim to a right
or title in terms of its contract to remain
in possession of the site, and said no more than that it has been
unlawfully ejected
from the site. (At 239H-240A.)
Held, further, that the
allegations that applicant had been in default and in breach of the
building contract, that the respondent
had been entitled to cancel
the contract and had done so, and that the respondent had been
entitled in terms of the contract to
demand that the applicant vacate
the site, did not serve as a defence to a claim for spoliation order,
nor did it justify the respondent's
depriving the applicant of
possession of the building site without the applicant' s consent and
without proceeding lawfully against
the applicant for an ejectment
order from the sit e and not by resorting to elf help to obtain
possession of the site. (At 240D-E/
F)"
[11]
Tersely put, the applicant,
in
casu,
to succeed with its spoliation
application, "must satisfy the court on a balance of probability
that it was in possession of
the property and that the respondent
unlawfully deprived it of that possession. "
Vide
Nienaber v Stuckey.
[2]
[12]
It was further held in the Stocks Housing matter
supra
that:
"If applicant is found to have been unlawfully dispossessed the
Court will order that possession of the site be restored
ante
omnia,
that is to say, before any litigation will be entertained
relating to which party has title or a right to the possession to the
property.
Nino Bonino v De Lange
B
1906 TS 120
at 123-4;
Claassens v Monia Motors1976
(2) SA 83 (O) at 83-7. The
element of unlawfulness of the dispossession which must be shown in
order to claim a spoliation order
relates to the manner in which the
dispossession took place, not to the alleged title or right of the
spoliator to claim possession."
[13]
As its first salvo of defence, the respondents contended that the
building agreement was between
the first applicant and Drickus Crous,
which agreement was never ceded to the applicant as such the
applicant has no
locus standi.
[14]
To counter this attack on
locus standi,
the applicant in its
replying affidavit, alleged that the applicant was formerly known as
Drickus Crous Construction (Pty) Ltd,
with registration number
2013/015848/07. The applicant underwent name change because of
pressing financial constraints. To this
end Mr Ruan Pretorius (the
current sole director who issued the resolution authorizing Crous to
act on behalf of the applicant)
was brought in to assist. The present
applicant remains the same entity as the previous one under the same
registration number.
In this regard he referred the court to annexure
"O".
[15]
Annexure
N shows that Real Refreshments Suppliers (Pty) Ltd was registered on
01/02/2013, with tax number 9750886153 with registration
number
2013/015848/07. The first respondent and Drickus Crous Construction
(Pty) Ltd concluded the building contract on 10 January
2015. It is
therefore strange that long after the Drickus Crous Construction
(Pty) Ltd had allegedly undergone a name change in
2013 to Real
Refreshments Suppliers (Pty) Ltd, the contract is entered between
Drickus Crous Constriction (Pty) Ltd, and not eal
Refreshments
Suppliers (Pty) Ltd. The inference is therefore that as at the time
the contract was entered int o, there were two
legal entities
co-existing parallel to each other. In my view, the two legal
entities are different in character, and with distinct
directors or
shareholders. In my view, there is merit in the submission of the
respondents that there is no evidence placed before
the court that
all the obligations and liabilities of Drickus Crous Constriction
(Pty) Ltd were ceded to Real Refreshments Suppliers
(Pty) Ltd or the
other way round. The applicant when called upon to prove
locus
standi,
bears the onus of persuading
the court that indeed it has
locus
standi.
In this case I have not been
persuaded otherwise consequently the point
in
limine
of lack of
locus
standi
raised by the respondent must
be upheld.
[16]
In the event I am wrong in my conclusion
on the point of
locus standi,
which
is not conceded, I shall therefore deal with the issue of spoliation.
[17]
A spoliation application is a speedy
remedy to restore the person dispossessed of the property. Towards
that end the applicant must
confine himself to the hard facts which
show that he was in peaceful possession and was dispossessed.
However, if he goes beyond
this, and aver his right and title to the
relevant property, the respondent is at liberty to answer in detail
and, if need be,
assert his right to the property, which is exactly
what transpired
in casu; Vide
Minister of Agriculture and Agricultural Dev v Segopolo.
[3]
The applicant ' s affidavit is
laborious and brings to play his reliance on the adjudicating award.
The
onus
is
on the applicant for a spoliation order to satisfy the court on
admitted or undisputed facts, by the same balance of probabilities
as
is required in every civil case, that he was in peaceful and
undisturbed possession of the property;
vide
Yeko v Qana.
[4]
[18]
A
spoliation
order is final
in nature. A final order is granted in an application proceeding only
on undisputed facts subject to the qualification
in
Plascon-Evans
Paints Ltd {Pty) Ltd.
[5]
In
Tamarillo
(Pty) Ltd v BN Aitkien [Pty] Ltd
[6]
,
Miller JA held
that: "A litigant is entitled to seek relief by way of notice of
motion. If he has reason to believe that facts
essential to his claim
will probably be disputed he chooses that procedural form at his
peril, for the Court in the exercise of
its discretion might decide
neither to refer the matter for trial nor to direct that oral
evidence on the disputed facts be placed
before it, but to dismiss
the application."
[19]
There are disputes of facts as regards the issue of possession and
whether the applicant abandoned
the site. I bear in mind that the
applicant bears the
onus
to prove that it was in possession of
the site, and not the respondents. I also bear in mind the fact that
the contract was concluded
between the first respondent and Drickus
Crous Constriction (Pty) Ltd, and that the applicant has not placed
evidence demonstrating
that whatever rights and obligations arising
therefrom were ceded by the Drickus entity to the applicant.
[20]
The first respondent disputes that the applicant has been in
possession of the stand as alleged.
She further contended that the
third respondent would every time when she fell in arrears with her
monthly levies, lock and deny
her access to the stand, only to remove
the padlock and restore access to her upon repayment of the levies.
The respondents further
contended that the applicant suspended the
construction works of the stand; breached the building agreement
between the parties
when it abandoned the stand.
[21]
According
to the first respondent, construction commenced in October 2018 and
not in February 2019. The applicant , says it must
have commenced in
2016. The respondents further averred that the applicant was never in
possession of the stand after May 2016.
In this regard, she attached
a "Site Inspection Report on Erf 537 Witfonetein" by NHBRC
dated 07 October 2016 (annexure
SN011), wherein It isrecorded,
inter
alia
that:
"2
Finding on site
2.2
No contractor on site".
The
first respondent has also attached a confirmatory affidavit by one
H.M. Mulaudzi, who stated that he commenced construction
work on the
stand in issue on 1 October 2018. In my view, from these two facts
mentioned herein, I am not satisfied that the applicant
was in
possession of the site, if it was ever in possession thereof, it
abandoned same. In the premises, I find myself obliged
to be guided
by the authority in the matter of
Tamarillo
(Pty) Ltd v BN Aitkien (Pty)Ltd supra
and
to dismiss the application.
[22]
It
is trite that costs follow the event.
[25]
In the premises it is ordered that the application is dismissed
with costs.
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
Date
of Hearing:
22
I
03
I
2019
Date
of Judgment:
04
I
04
I
2019
Applicant's
Advocate:
ADV GARETH MORRIS
INSTRUCTED
BY:
LAUTENBERG
MORRIS ATTORNEYS
Respondent
' s Advocate:
ADV K. P. MASENYA
INSTRUCTED
BY:
MASENYA ATTORNEYS
[1]
1996 (4) SA 231
at 2381-J.
[2]
1946 AD 1949
at 1053-4.
[3]
1992 (3) SA 967
(TPD) at 9718 et 9711-J.
[4]
1973 (4) SA 735
(A) at 735D.
[5]
[1984] ZASCA 51
;
1984 (3) SA 623
(A) 6358-C.
[6]
1982 (1) SA 398
(A) at 430G.