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[2019] ZAECMHC 54
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Joint Venture between Aveng Africa (Pty) Ltd and Strabag International GmbH v South African National Roads Agency (1195A/19) [2019] ZAECMHC 54 (25 September 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
NOT
REPORTABLE
CASE
NO: 1195A/19
Heard on: 18/09/19
Delivered on: 25/09/19
In
the matter between:
JOINT
VENTURE BETWEEN AVENG AFRICA
(PTY)
LTD AND STRABAG INTERNATIONAL GmbH
Applicant
And
SOUTH
AFRICAN NATIONAL ROADS AGENCY
Respondent
JUDGMENT
ON
LEAVE TO
APPEAL
NHLANGULELA
DJP
[1]
This judgment concerns an application for leave to appeal the
judgment granted on
02 July 2019 that the applicant for leave must
return certain assets to the respondent that it had removed from the
possession
of the respondent without the consent or any legally
recognized right. The costs aspect of the judgment, which were
also
granted in favour of the respondent, forms part of the
application for leave.
[2]
For present purposes it is essential to state upfront that leave is
not so much anchored
on a misinterpretation of any of the legal
principles that govern the remedy of spoliation. Instead, the
application for
leave is predicated on the main ground that the court
a quo
failed to analyse or evaluate the facts stated on
affidavits with a consequence that the judgment is wrong. I
make these
remarks not being oblivious of the fact that the court
a
quo
is neither being called upon to re-adjudicate the main
application nor deal with the appeal but only to determine the issue
whether
a reasonable prospect(s) of the appeal being decided in
favour of the applicant does exist. The Supreme Court of Appeal
in
S v Smith
2012 (1) SACR 567
(SCA) at para [7] stated that
the test applicable in an application for leave to appeal is the
following:
“
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a
court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore,
the
appellant must convince this court that those prospects are not
remote but have a realistic chance of succeeding. More
is
required to be established than that there is a mere possibility of
success, that the case is arguable on appeal or that the
case cannot
be categorised as hopeless. There must, in other words, be a
sound, rational basis for the conclusion that there
are prospects of
success on appeal.”
[3]
The main facts that the court
a quo
is said to have not
decided correctly are that the applicant removed assets listed in
Appendix B; a distinction was not made as
to who between the
applicant and the suppliers/subcontractors was the owner of the
assets listed in Appendix B; the respondent
had not per letter dated
2 April 2019 consented to the removal of assets from the site; that
the applicant was still in possession
of the assets that were removed
from the respondent; and that the applicant was the spoliator of the
assets.
[4]
In this Court,
Mr Tshikila
stated, correctly so, that the
respondent was only saddled with
onus
to prove that it was in
possession of the assets at the time when they were removed by the
applicant forcibly or wrongfully against
the consent of the
respondent. By contrast, the respondent was not obliged to
prove ownership of the assets.
Neither was it obliged to
prove that the applicant was entitled to remove the assets in terms
of the contract that the parties
had with regard to the construction
of Mtentu River Bridge. A further submission made by
Mr
Tshikila
that the defences that the applicant had relied upon to
resist the remedy of spoliation, which were considered by the court
a
quo
, reveal that the application for leave does not have a
reasonable prospect of success on appeal.
[5]
There is no need to re-count the facts of the case in this judgment.
Suffice
it to state that the evidence proved that the applicant did
remove the assets from the possession of the respondent. At the
time when doing so, the applicant had not co-ordinated his action
with the sub-contractors, suppliers and the Engineer. It
had
not yet given a four days plan for the removal of the assets and the
Engineer was not caused to supervise the removal of the
assets.
It was, therefore, plain that the removal of assets took place at the
whims, not consent, of the respondent.
Simply put, the
conditional consent given by the respondent per letter dated 2 April
2019 was not complied with. That said,
the defences relating to
the applicant’s right to remove the applicant’s right to
remove the assets in terms of the
employer-contractor written
agreement would not have disturbed a decision based solely on the
spoliation remedy. Neither
was it competent of the court
a
quo
to ignore the proved act of spoliation on the incorrect basis
that the applicant was merely facilitating the removal of assets
belonging to the supplier and sub-contractors when it actually took
part in the removal of assets. Consequently, there can
be no
basis to the ground of appeal that the applicant was no longer in
possession of the assets irrespective of ownership thereof.
On
the consideration of these facts, it did not lie on the say-so of the
applicant that the assets proved to have been removed
by it were in
possession of the suppliers and sub-contractors because they were the
owners thereof.
[6]
Coming back to the test of reasonable prospect(s) of success I remain
not persuaded
that the grounds of appeal are sound and a rational
basis for the conclusion that there are prospects of success on
appeal.
That finding does affect the appeal against the costs
order.
[7]
In the result the following order shall issue:
1.
The application for leave to appeal be and is hereby refused.
2.
The applicant for leave to pay costs of the application.
______________________________________________
Z.
M. NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
MTHATHA
Counsel
for the applicant
:
Adv. R. Carvalheira
Instructed
by
: Pinsent Masong South Africa
Inc
c/o J.A. Le Roux
Attorneys
MTHATHA.
Counsel
for the respondent
:
Adv. S.
Tshikila
Instructed
by
: Cliffe Dekker
Hofmeyer Inc
c/o Keightley Sigadla
Nonkonyana InNc
MTHATHA.