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[2019] ZANCHC 36
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Pniel Communal Property Association v April and Another (510/2019) [2019] ZANCHC 36 (30 August 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Saakno: / Case number:
510/2019
Datum verhoor: / Date heard:
16/08/2019
Datum gelewer: / Date delivered:
30/08/2019
In the matter between:
PNIEL
COMMUNAL PROPERTY ASSOCIATION
Applicant
and
ISAAC
GILLIAN APRIL
First Respondent
MESCHACK
APRIL
Second
Respondent
JAMES
APRIL
Third Respondent
KAGISHO
APRIL
Fourth
Respondent
ISAAC
SWARTZ
Fifth Respondent
LIZETTE
ITUMELENG
Sixth Respondent
NORMAN
ITUMELENG
Seventh
Respondent
KENEILWA
APRIL
Eigth Respondent
PASEKA
WESI
Nineth
Respondent
OU
FIGHT APRIL
Tenth Respondent
TSHEPO
WESI
Eleventh
Respondent
ALL
UNIDENTIFIED MEMBERS OF THE PNIEL
AGRICULTURAL
CO-OPERATIVE
Twelfth Respondent
THE
PNIEL YOUTH AGRICULTURAL
CO-OPERATIVE
Thirteenth
Respondent
STEPHANIE
ENGELA CORNS N.O.
Fourteenth
Respondent
DEREK
SOREN CORNS N.O.
Fifthteenth Respondent
GUILLAUME
JOHANNES OBERHOLSTER N.O.
Sixteenth
Respondent
Coram:
Sieberhagen, AJ
JUDGMENT
SIEBERHAGEN,
AJ
Introduction
[1]
The
applicants lodged an urgent spoliation application seeking an order
for the Respondents to return to the Applicant, its members,
its
employees and all persons so authorised by the Applicant, unhindered
access to the Applicant's premises known as Pniel Farm
281, District
of Barkly-West and an order that the Respondents be ordered to
immediately return the Applicant's agricultural implements.
[2]
The
application served before Phatshoane, ADJP on 8 March 2019, when the
First to Thirteenth Respondents appeared in person and
the following
order was made:
“
2.
That a rule nisi be issued calling on all
RESPONDENTS to show cause, if any, on or before Friday 29 March 2019
at 9:30 as to why
the following interim order should not be made a
final order of Court:
2.1
That the 1
st
to 13
th
RESPONDENTS be ordered to
return to the APPLICANT, its members, its employees and all persons
so authorised by the APPLICANT, unhindered
access to the APPLICANT'S
premises known as Pniel Farms 281, District of Barkly-West,
Barkly-West, Northern Cape Province with
immediate effect;
2.2.
That the 1st to 13th RESPONDENTS be ordered to specifically return to
the APPLICANT, its members, its
employees and all persons so
authorised by the APPLICANT, unhindered access to the APPLICANT'S
premises commonly known as Pniel
Estates as well as the section
commonly known as Steffs Pniel;
2.3
That the 1st to 13th RESPONDENTS
be interdicted from refusing in any way whatsoever, access to the
premises mentioned in paragraph
2.1 and 2.2 herein above to the
APPLICANT, its members, its employees and all persons so authorised
by the APPLICANT;
2.4
That the 1st to 13th RESPONDENTS
be ordered to immediately return to APPLICANT the following
agricultural implements that are the
property of the APPLICANT,
alternatively that the APPLICANT had unfettered use and enjoyment of:
2.4.1
Two (2) Tractors;
2.4.2
Two (2) Trailers;
2.4.3
Two (2) Ploughs;
2.4.4
One (1) Ripper;
2.4.5
Two (2) Planters; and
2.4.6
One (1) 11Bossie Kapper";
2.5
That the 1
st
to 13
th
RESPONDENTS be interdicted from inciting and/or allowing any other
person to act in a manner set out in paragraph 2.1
-
2.4 herein above; and
2.6
That the 1st to 13th RESPONDENTS
be ordered to pay the costs of this application; and
3.
That the relief set out per paragraphs 2.1 to 2.5 herein above shall
serve as interim relief with
immediate effect, pending the final
determination of this application."
[3]
A
rule
nisi
was
granted, primarily to afford the First to Thirteenth Respondents the
opportunity to oppose the application and the
rule
nisi
was subsequently extended on
two occasions to enable the parties to file opposing and replying
affidavits.
Factual Background
[4]
The
object of this application may be described as Pniel Farms 281,
District of Barkly-West which consists of various sections.
The two
sections that are relevant for purposes of this application are those
commonly known as Pniel Estates and Steffs Pniel.
[5]
According
to the Applicants, the property was awarded to the Applicant by the
Public Shared Services Commission: Northern Cape after
a successful
land claim and the process of registering the Property into the name
of the Applicant is in its final stages.
[6]
As
a result, the Applicant avers that it has been running a successful
game farming operation on Steffs Pniel and a crop farming
operation
on Pniel Estates, which operations are to the benefit of the members
of the Applicant.
[7]
It
is common cause that during 2015/2016 and after receiving a pivot as
a donation from the Department of Agriculture, Land Reform
and Rural
Development, the 13
th
Respondent approached the Applicant with a request to install the
pivot on Pniel Estates in order to grow maize and wheat for its
own
account and that the Applicant had agreed to this request.
[8]
During
2017, and after the Applicant had installed two of its own pivots on
Pniel Estates, the initial agreement between the Applicant
and the
13th Respondent referred to in paragraph 7
supra,
was amended on 10 January 2018 as
reflected in the minutes of meeting. The relevant portions of the
minutes read as follows:
"Minutes of meeting held
with Pniel Agri-Cultural Youth Co-operative on 10 January 2018 in
Kimberley at 4 Bizet Avenue, Pescodia
at 10 am.
AGENDA
1.
Pivots
2.
Marnus De Beer
3.
Salaries and Payments
4.
Maintenance of vehicles
and software
5.
Closure
1.
Pivots
The Pniel Agri-Cultural Youth
Co-opt has one pivot bought by the Dept: Agriculture, Land Reform and
Rural Development-NC. Steff
Pniel bought 2 pivots for the Pniel
C.P.A.
The P.A.Y. Co-opt was given
permission to operate their one pivot, on the Pniel Estate.
2.
MARNUS DE BEER
It was further resolved that
Mr. Marnus De Beer neighboring farmer will assist the Pniel C.P.A and
the P.A.Y. Co-opt in their farming
project.
3.
SALARIES
It was further resolved that
the P.A.Y. Co-opt must pay 20% of their netto income from the crops
to the Pniel C.P.A.
It was also resolved that the
Pniel C.P.A pays the P.A.Y. Co-opt, their salaries for maintenance
and work to be done on the pivots
of the Pniel C.P.A. The Pniel C.P.A
would pay R55 000.00 pm to the P.A.Y. Co-op for the salaries, as
follows:
Mr. Gillian April
R5 100.00
Mr.
Meshack April
R5 100.00
Mr.
James April
R5 100.00
Mr.
Rhydwyn Solomons R5 100.00
Mr.
Norman Itumeleng R3 000.00
11 other workers
R2 000.00 each
It was also agreed that the
outstanding debt for diesel, meetings and workshops attended by the
P.A.Y. Co-opt and paid by the Pniel
CPA be refunded to the Pniel
C.P.A. after each harvesting of the crops under their pivot. This
does not include the 20o/o that
must be paid to the Pniel C.P.A. from
the netto income of the P.A.Y. Co-opt from the proceeds of their
pivot.
It was further agreed that the
Pniel C.P.A and Mr Marnus De Beer will buy a third pivot, 50% to be
paid by Mr De Beer and 50% by
the Pniel
C.
P.A
This pivot will be erected on
the Cottonfields side of Pniel to employ Cottonfields residents. The
netto income profit sharings
from the pivots will be as follow: 50%
Pniel C.P.A, 40% De Beer and 10% Cottonfields.
4.
MAINTENANCE OF EQUIPMENT
The maintenance of vehicles and
farming equipment of the Pniel
C.P.A will be paid by the Pniel
C.P.A.
Employees must handle
equipment, vehicle with care and must not mis-use the farming
equipment and vehicles......"
Issues
[9]
It
is the Applicant's case that on 20 and again on 21 February 2019, the
First Respondent had informed the deponent to the Applicant's
founding affidavit via cell phone mesages that all hunting operations
on Steffs 'Pniel will be suspended with immediate effect
and that no
member or employee of the Applicant will be allowed on Pniel Estates
as from the said dates. According to the deponent,
members of the
Applicant and employees were threathened with violence should they
attempt to enter Pniel Estates.
[10]
According
to the Applicant, the First to Thirteenth Respondents have also taken
possession of the agricultural implements which
belong to the
Applicant as set out in paragraphs 2.4.1 to 2.4.6
supra.
The Applicant, its members and
employees had free and unfettered access to Pniel Estates and the
implements at all material times
which access, by virtue of the First
to Thirteenth Respondents' conduct, is currently being denied. The
implements are a necessity
to conduct farming activities.
[11]
The
Applicant's attorney addressed a letter to the First to Eleventh
Respondents on 4 March 2019 in which the following
inter
alia
were stated:
"...3. Dit is ons
instruksies verder dat daar 'n ooreenkoms was dat u tussentyds oak
kon gebruik maak van die landbou implemente
van die CPA wie op die
ander twee spilpunte (twee 22 hektaar spilpunte) besproei.
... 8.
Op
Donderdag 21 Februarie 2019 het u ook te kenne gegee aan die
uitvoerende komitee en die CPA dat niemand meer op die gedeelte
bekend as Pniel Estates mag kom nie en die besproeingsboerdery wat
bestaan uit die twee 22 Hektaar mielie spilpunte mag boer nie.
U het
telefonies kennis gegee daarvan en was u gesprek in hierdie verband
opgeneem.
9.
Ons opdragte is
dat indien u enige van die werknemers of agente of verteenwoordigers
of adviseurs van die CPA sal verhinder om voort
te gaan met hul/e
boerdery aktiwiteite, 'n hof interdik gebring sat word ten einde u
voornemende optrede te belet....
11.
Dit is ook ons instruksies
dat u nou weier om enige van die CPA se implemente aan hulle te
oorhandig ter voortsetting van hulle
boerdery aktiwiteite, waarvan 'n
lys van die implemente vir u hierby aangeheg word.
12.
Indien die lewering van
die implemente nie plaasvind voor Dinsdag 12h00 nie, is dit ons
instruksies om onmiddellik voort te gaan
met 'n gepaste aansoek by
the Hoog Geregshof of sou u dan versuim om die implemente sodanige
sodanig te fewer, sat die regstappe
teen u ingestel word sander enige
verdere kennisgewing.
19.
Geliewe ook kennis te neem dat hierdie reeling met u as gevolg van u
kontrak breuk en die
optrede soos voormeld deurmiddel van u optrede
soos vermeld gekanselleer word en woord u ook kennis gegee om Pniel
Estate te ontruim
binne veertien dae vanaf datum van hierdie skrywe
by gebreke daaraan waaraan ons kliente die gepaste uitsettings bevele
teen u
sat bekom.”
[12]
The Applicant states that the
Applicant did not receive any positive feedback in response to the
letter and therefore the conduct
of the First to Thirteenth
Resondents boils down to nothing more than an act of spoliation and
the Applicant is therefore entitled
to the relief claimed.
[13]
In response thereto, it is the
First to Thirteenth Respondents' case that:
13.1
On 21 February 2019, the First
Respondent had phoned and messaged Andries, an employee of Steffs
Pniel to inform him that the First
Respondent was instructed by the
members of the community to stop providing the Applicant with water
from the Thirteenth Respondent's
water pump without compensation. He
confirmed that he had informed Andries that the Applicant would not
be granted access to the
Thirteenth Respondent's water pump, but
denies that hunting operations were suspended or that the Applicant's
members and employees'
access to the Pniel Estates was suspended as
alleged by the Applicant.
13.2
All agricultural implements mentioned in
this application belong to the Thirteenth Respondent and not the
Applicant. These implements
were bought by the Department for
Thirteenth Respondent to conduct its agricultural farming and the
Applicant has never had posession
of the implements mentioned because
the Applicant was never involved in the farming operations.
13.3
The Applicant, its members and
employees' access to Pniel Estates were never refused. They were
conducting business as usual on
the property and continuing with
their game farming operations without any obstruction from the First
to Thirteenth Respondents.
13.4
The Applicant is not entitled to the
relief claimed because the Applicant had failed to prove that the
Applicant was in peaceful
and undisturbed possession of the
agricultural implements and that the First to Thirteenth Respondents
had unlawfully deprived
the Applicant of its access to Pniel Estates
and Steffs Pniel.
[14]
In reply, the Applicant denies
that it was not involved in crop farming operations and attached two
confirmatory affidavits of Mr.
Marnus de Beer and Mr. Martin Bond to
its replying affidavit, confirming that they are assisting the
Applicant in its crop farming
endevours in an advisory capacity.
[15]
Although the Applicant admits
that the Thirteenth Respondent does have a water pump on the
premises, the Applicant states that this
pump is hardly used since
its capacity is not sufficient and the water pump on Pniel Estates
was upgraded and paid for by the Applicant
to cater for all three
pivots on the property.
[16]
The Applicant also denies that
the agricultural implements are currently in the possession of the
First to Thirteenth Respondent
as the Applicant has had unfettered
access to the items in question since the order of 8 March 2019 was
granted.
Arguments
of behalf of the parties
[17]
Adv Olivier, on behalf of the
Applicant, submitted that, based solely on the version of the First
to Thirteenth Respondents, namely
that the Applicant has always had
unfettered access to Pniel Estates, an order in terms of prayers 2, 3
and 4 of the Notice of
Motion would be in order and requested the
Court to confirm the rule
nisi
in
so far as these prayers are concerned.
[18]
In respect of the agricultural
implements, he argued that although the First to Thirteenth
Respondents had stated that the Applicant
never had possession of
these implements by virtue of the fact that the Applicant was never
involved in crop farming activities
on Pniel Estates, the Applicant
disputes the above and tenders evidence in the form of two
confirmatory affidavits. As a result
therefore and as a result of the
contents of the minutes of the meeting referred to in paragraph 8
supra,
he
submitted that it supports the Applicant's version of events and that
on a balance of probabilities, the Applicant has proven
its case in
respect of the remainder of the relief sought.
[19]
He submitted that the Court is
not tasked with deciding the rights of the parties to the spoliated
property, but is merely asked
to make an order that the
status
quo
be restored, in other words that
the factual situation that existed before, be restored.
[1]
[20]
Adv Tyuthuza, on behalf of the
First to Thirteenth Respondents, argued that the Applicant failed to
prove that the Applicant, its
members or employees was in possession
of the agricultural implements and that further access to the
implements was restricted
by the First to Thirteenth Respondents. In
addition thereto, the Applicant failed to prove that the First to
Thirteenth Respondents
had unlawfully deprived the Applicant of its
peaceful possession of Pniel Estates and as a result thereof, the
Applicant's application
should be dismissed with costs.
[21]
She also submitted that it is
clear from the papers that a factual dispute exists as to the
Applicant's possession of the agricultural
implements and the
Applicant's involvement in crop farming on Pniel Estates, which
cannot be determined by using motion proceedings,
which the Applicant
should have foreseen.
Applicable
Law and application of Law to the facts
[22]
The
mandament
van spolie
has been described as a
speedy and robust remedy designed to restore possession only,
irrespective of the validity or otherwise
of the underlying
causa
for the possession in order to
prevent "self-help". Consequently, it does not involve the
exercise of a discretion, as
the subject of the act of spoliation
must be restored to the person from whom it was taken, irrespective
of the question as to
who is entitled in law to be in possession of
such property.
[23]
The requisites of the mandament
van spolie are set out in the matter of
Ngqukama
v Minister of Safety and Security and others:
[2]
" ..........
This
unlawfulness, plus the other requirement for a spoliation order
(namely, having been in possession immediately prior to being
despoiled) satisfy the requisites for the order. All that the
despoiled person need prove is that-
(a)
she was in possession of the
object; and
(b)
she was deprived of possession
unlawfully."
[24]
The only issues to be decided in
this matter are whether the First to Thirteenth Respondents
unlawfully deprived the Applicant of
its possession of Pniel Estates
and Steffs Pniel, as a result of the fact that the First to
Thirteenth Respondents never disputed
that the Applicant had
undisturbed access to these properties and whether the Applicant was
in possession of the agricultural implements
as set out in paragraph
2.4 of the Notice of Motion
[25]
The Applicant relies on
telephonic messages and threats as set out in paragraph 9
supra,
to convince the Court that the
Applicant was unlawfully deprived of "possession" of Pniel
Estates by the First to Thirteenth
Respondents, but fails to indicate
what actions were taken by the First to Thirteenth Respondents to
unlawfully deprive the Applicant
from its possession of Pniel Estates
and Steffs Pniel. Unfortunately, a mere threat of spoliation does not
justify the granting
of an order as set out in the matter of
Jigger
Properties v Maynard NO and Others
[3]
which reads as follows:
"[24] As
for the ancillary issue as to whether a threat of spoliation amounts
to an act of spoliation entitling
a party to relief by way of a
mandament van spolie, I make the following points. There are
fundamental differences between the
mandament van spolie which is
aimed at the recovery of lost possession, and a final interdict to
prohibit a threatened spoliation
or dispossession. In the unreported
judgment of Boruchowitz J (30 May 2014) in Outdoor Network Limited v
Passenger Rail Agency
of South Africa it was pointed out that the
mandament van spolie cannot be invoked to prohibit a threatened
spoliation
-
it
is only available to a de facto possessor who has been despoiled.
While possessory remedies to prevent a threatened spoliation
were
available in Roman law, namely the mandament van complinte and
mandament van maintenue, these were not imported into South
African
law.
[25]
In light of the above, I consider
that even if the respondents reasonably and bona fide believed that
their right of access to YB
stemmed from a servitude or the purported
exercise of a servitude ( 11gebruiksregt e'') or was an incident of
possession or control
of the premises, none of this justified the
granting of a mandament van spolie on a mere threat of termination of
that right. In
my view, without an actual and wrongful deprivation of
their purported right of possession did not justify the kind of
relief they
sought from the outset. It follows that a mere threat of
dispossession can find no ground for relief through a mandament van
spolie."
[26]
With
regard to the Applicant's "possession" of the agricultural
implements, both Counsel indicated that the agricultural
implements
as set out in prayer 2.4 of the Notice of Motion were the implements
as referred to in the minutes of the meeting of
10 January 2018 and
that the minutes of the meeting correctly reflected the decisions
taken by the parties. They however failed
to deal specifically with
the relationship between the Applicant and First to Thirteenth
Respondents.
[27]
It
appears from the papers, that some of the Respondents (First to
Thirteenth Respondents) are employed by the Applicant and receive
a
monthly salary as set out in paragraph 8
supra.
In paragraph 4 of the minutes of the
meeting it was recorded that the employees of the Applicant must
handle the farming equipment
of the Applicant with care and must not
mis-use the farming equipment and vehicles. In paragraph 3 of the
minutes of the meeting,
the parties agreed that:
"It
was resolved that the Pniel
C.
P.A.
pays the P.A.Y. Co-opt, their salaries for maintenance and work to be
done on the pivots."
[4]
"
[28]
If
some of the Respondents (First to Thirteenth Respondents) . are
employees of the Applicant, they could never be in "possession"
of the agricultural implements but could merely "hold" the
agricultural implements on behalf of the Applicant. In Wilie's
Principles of South African Law,
[5]
the following were stated:
"In view of the above,
servants or agents who hold with the intention of merely holding for
another (animus non sibi sed alteri
possidendi) are not possessors
because their animus does not entitle them to the protection of
detention afforded to detentors
with the animus ex re commodum
acquirendi.
Physical control over a thing
need not be exercised personally, but may be exercised indirectly, ie
vicariously, through a servant
or even a person who has the intention
to derive some benefit for him- or herself from holding the thing. In
the latter case, it
is probable that the control of both the
vicarious possessor and the actual detentor of a thing would be
protected by the mandament
van spolie."
[29]
As a result of the above, the First to
Thirteenth Respondents as employees of the Applicant could not
unlawfully deprive the Applicant
of its possession of the
agricultural equipment.
[30]
The only possible alternative on the
papers to the employer/employee relationship as set out above, is
that there was an agreement
between the parties that the First to
Thirteenth Respondents could make use of the farming implements of
the Applicant.
[6]
If it is the Applicant's case that the agreement between the
Applicant and First to Thirteenth Respondents had been cancelled in
respect of the agricultural implements, as set out in paragraph 11
[7]
supra,
the
Applicant still failed to convince the Court that it was in
possession of the agricultural equipment. The mere fact that the
First to Thirteenth Respondents are frustrating the Applicant's
access to the agricultural implements does not satisfy the first
requirement for the mandament van spolie. In this regard I refer to
Wille's Principles of South African Law
[8]
,
which reads as follows:
".......
This leaves the
owner of the property with a rei vindication or a non-owner with a
possessory remedy to claim return of the property
and possibly
damages. This view is to be preferred, although it is true that,
since force is no longer necessary to ground a mandament,
the refusal
to surrender possession once the legal right that justifies detention
(e.g. lease) has ceased, is unlawful and thus
sufficient to ground an
application based on spolie. But it is difficult to see how the
applicant/lessor would establish the factual
possession requirement,
given that the lessee has factual possession and has not relinquished
it. The applicant/lessor is unable,
therefore, to satisfy the first
leg of the requirement for the mandament van spolie. The only basis
on which an applicant/lessor
could claim to have been spoliated is to
say that his or her entitlement to possession is being thwarted by
the lessee. This claim
is, of course, not admissible in spoliation
proceedings, which may not consider the merits of competing claims."
[31]
The
Applicant has therefore failed to convince the Court that the First
to Thirteenth Respondents has wrongfully deprived the Applicant
of
its possession of Pniel Estates and Steffs Pniel and that the
Applicant was in possession of the farming implements as set out
in
paragraph 2.4 of the Notice of Motion which are prerequisites to
satisfy the requirements of a spoliation application.
[32]
No
reasons were advanced why the costs should not follow the event and I
can find no reason to differ from the general principles
in this
regard.
I make the following order:
THE
APPLICANT'S APPLICATION IS DISMISSED WITH COSTS.
AS
SIEBERHAGEN
ACTING
JUDGE
Obo
the Applicants:
Adv. A.O. Olivier (oio Van
de Wall Inc)
Obo
the Respondent:
Adv. T. Tyuthuza (oio
Matlejoane Attorneys)
[1]
Oglodzinski v Oglodzinski [1976)
4 All SA 179
(D) at 180
[2]
2014 (5) SA 112
/CC) at [13]
[3]
2017
(4)
SA 569
(KZP) at [24] and [25]
[4]
Paragraph 2 of minutes of meeting - page 27 of indexed papers
[5]
Ninth Ed (2007) page 45 l
[6]
Paragraph 3 of letter - page 31 of indexed papers
[7]
Paragraph 19 of letter
[8]
Ninth Ed (2007) page 457