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[2008] ZASCA 153
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ATM Solutions (Pty) Ltd v Olkru Handelaars CC and Another (739/07) [2008] ZASCA 153; 2009 (4) SA 337 (SCA) ; [2009] 2 All SA 1 (SCA) (27 November 2008)
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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case
No: 739/07
ATM SOLUTIONS (PTY) LTD
Appellant
and
OLKRU HANDELAARS CC 1
st
Respondent
ABSA BANK LIMITED 2
nd
Respondent
Neutral citation:
ATM
Solutions (Pty) Ltd v Olkru Handelaars CC(739/2007)
[2008] ZASCA 153
(27 November 2008)
Coram:
STREICHER, CLOETE,
LEWIS, JAFTA and PONNAN JJA
Heard:
14 November 2008
Delivered:
27 November 2008
Summary:
Mandement van spolie
not granted for the protection or enforcement of a mere contractual
right: appeal against order of high court
dismissed.
______________________________________________________________ORDER
On appeal from the High Court Cape Town (Griesel J
sitting as court of first instance).
The appeal is dismissed with costs.
JUDGMENT
LEWIS JA (
Streicher,
Cloete, Ponnan and Maya JJA concurring)
[1]
This is an appeal
against a judgment of the Cape High Court (Griesel J),
1
with its leave, refusing the grant of a mandament van spolie against
the two respondents. The appellant, ATM Solutions (Pty) Ltd
(ATM
Solutions), supplies and instals automated teller machines (ATMs) at
the premises of retailers. The first respondent, Olkru
Handelaars CC
(Olkru), runs a convenience store in Worcester known as Kwikspar
Breedevallei (Kwikspar), in which ATM Solutions
had installed an ATM
in 2007. The second respondent, Absa Bank Ltd (Absa), also instals
ATMs within stores and elsewhere. ATM Solutions
brought an urgent
application for a spoliation order against both respondents when
Olkru had the ATM in the Kwikspar premises disconnected,
and removed
and placed in a storeroom. The claim against ABSA was brought on the
basis that it was a co-spoliator, having facilitated
immediate
replacement of ATM Solutions’ ATM in Kwikspar with its own.
[2]
The high court
refused the application for a spoliation order on the basis that ATM
Solutions had nothing more than a contractual
right to have its
machine in place in Kwikspar and that the mandament is not the
appropriate remedy for the enforcement of contractual
rights. In
reaching this decision the court considered itself bound by recent
decisions of this court, in particular
Telkom
SA Ltd v Xsinet (Pty) Ltd
2
(Xsinet
) and
First
Rand Ltd t/a Rand Merchant Bank v Scholtz NO
3
which have held that in order for rights to qualify for protection
through the grant of a spoliation order, they must be
‘gebruiksregte’
(rights to use property) or incidents of
the possession or control of property. The purpose of spoliation
orders, it is trite,
is to stop people from taking the law into their
own hands, and to preserve the peace, rather than to order specific
performance
of a contract.
[3]
It is thus necessary
to determine the nature of the right on which ATM Solutions relied in
claiming spoliatory relief. ATM Solutions
and Olkru had entered into
a contract, a ‘Site Location Agreement’, in February
2007, in terms of which Olkru would
provide floor space within the
premises occupied by Kwikspar for an ATM supplied by ATM Solutions.
The ATM was intended for use
by Kwikspar’s customers, and was
installed in the store with wooden panelling around it, and was fixed
to the floor with
bolts.
[4] T
he agreement
provided that ATM Solutions would ‘use and occupy’ the
premises for the ‘sole purpose of placing
and operating’
an ATM. The ATM was placed at a ‘mutually agreed location’
and ATM Solutions undertook responsibility
for the ‘installation,
operation and maintenance’ of the ATM during the currency of
the contract. Olkru was obliged
to provide the electricity for the
ATM, while ATM Solutions ensured connectivity to banks. Olkru, as the
‘user’, was
not entitled to ‘permit the removal’
of the ATM from the premises, and granted ATM Solutions, and ‘third
party
servicing agents’ ‘reasonable access to the ATM’
during Olkru’s ‘normal hours of operation or, for
purposes of servicing, during pre-opening and post-closing hours as
are mutually agreed’. In the event of the ATM failing
to
operate, Olkru undertook to notify ATM Solutions within 24 hours; and
ATM Solutions would ‘have the right at any reasonable
time
during User’s business hours to enter’ the premises to
inspect and repair the ATM .
[5]
On 17 September 2007
Olkru, without the consent of ATM Solutions, disconnected the
electricity supply to the ATM and moved the machine
to a storeroom on
the Kwikspar premises. Immediately afterwards an ATM belonging to
Absa, and bearing its brand, was installed
in the same space –
hence the claim that the respondents were both guilty of spoliation.
Although ATM Solutions initially
claimed specific performance of the
contract against ATM Solutions, in the alternative, it did not pursue
this relief.
[6]
The basis of the
argument that ATM Solutions was entitled to a spoliation order was
initially that the ATM occupied a specific mutually
agreed part of
the premises, that it would remain available for use by Kwikspar
customers during normal business hours, and that
ATM Solutions was
entitled to maintain and service the ATM. These allegations were
meant, presumably, to establish that ATM Solutions
actually had
possession of the machine. Olkru’s reply, however, showed that
ATM Solutions had never had actual possession
of the ATM within
Kwikspar.
[7]
It was not disputed
that the ATM and the floor space where it stood were at all times in
Olkru’s possession and control; that
only Olkru held the keys
to the Kwikspar premises, and indeed the keys to the ATM itself; that
Olkru controlled all access to the
ATM; and that an employee of Olkru
stocked the ATM with money, changed the paper rolls for receipts, and
effectively operated the
ATM. Access by ATM Solutions to the ATM was
controlled by Olkru. The claim to actual possession of the ATM thus
had to fail.
[8] However,
ATM
Solutions asserted in its replying affidavit that it ‘physically,
through the ATM device, occupied an identifiable portion
of the
premises’, a proposition that was argued before the high court
and this court to mean that ATM Solutions had ‘quasi-possession’
which would justify a spoliation order should it be precluded from
exercising its right.
[9]
The cases where
quasi-possession has been protected by a spoliation order have almost
invariably dealt with rights to use property
(for example servitudes
or the purported exercise of servitudes – ‘gebruiksregte’
4
)
or an incident of the possession or control of the property. The law
in this regard was recently succinctly stated in
First
Rand Ltd v Scholtz
5
where Malan AJA pointed out that a spoliation order ‘does not
have a “catch-all function” to protect the
quasi-possessio
of all kinds of rights irrespective of their nature. In cases . . .
where a purported servitude is concerned the
mandament
is obviously the appropriate remedy, but not where contractual rights
are in dispute or specific performance of contractual obligations
is
claimed: its purpose is the protection of
quasi
possessio
of certain rights. It
follows that the nature of the professed right, even if it need not
be proved, must be determined or the
right characterized to establish
whether its
quasi possessio
is deserving of protection by the
mandament
.’
6
Mere personal rights, said Malan AJA, are not protected by the
mandament
.
Thus only rights to use or occupy property, or incidents of
occupation, will warrant a spoliation order.
7
[10]
Counsel for ATM
Solutions sought to persuade us that this matter is different from
Xsinet
and
First Rand
in both of which the ongoing performance of a contract (the first for
the supply of telephone connectivity, and the second for
water) was
in issue. ATM Solutions, on the other hand, it was argued, had had
not only a right to maintain their machine in place,
but it had in
fact already been installed and connected, and then removed. The
physical state of presence and connectivity was
changed through
Olkru’s conduct. Ongoing performance was not being claimed. I
fail to see the distinction. ATM Solutions
sought an order that its
ATM be re-installed and reconnected. That seems to me no different
from claiming specific performance
of a contract, as was the case in
Xsinet
and
First Rand
.
[11]
Counsel also relied
on cases where the mandament has been granted to restore incidents of
occupation of premises such as the supply
of electricity or water by
a lessor.
8
Particular reliance was placed on
Shapiro
v South African Savings and Credit Bank
9
where the court ordered the replacement of a nameplate on the wall of
the entrance to the building in which Dr Shapiro hired premises.
Shapiro had no control over the entrance, and the nameplate was not
affixed to his premises but to another part of the building.
Roper J
held, however, that he was given the right, ‘as part of his
conditions of tenancy’ to occupy the space covered
by his
nameplate.
10
When the building was sold and the new owner removed the nameplate,
Shapiro applied successfully for a spoliation order that the
nameplate be restored. However, Roper J went on to say,
11
‘it seems to me that the applicant had a contractual right as
against the respondent to have his nameplate upon that defined
portion of the respondent’s premises. I can see no reason why
this right should not be capable of protection by a spoliatory
order’.
[12]
Counsel for ATM
Solutions argue that the ‘conditions of tenancy’ referred
to by Roper J were the source of the contractual
right and that the
right to have his nameplate at the entrance was not an incident of
Shapiro’s tenancy of another part of
the building. I do not
agree. The placing of a nameplate at the entrance to a building is
part of the right of occupation of premises
just as is the supply of
electricity, water or other services provided by a lessor. The
nameplate both indicates the presence of
the lessee in the building
and directs people to his premises. That Shapiro had no control over
the entrance does not make it any
less part of his ‘conditions
of tenancy’.
[13]
In
this case, too, the origin of the right to have the ATM in the
Kwikspar premises is contractual. Counsel for ATM Solutions contend
that we must distinguish between the origin of the right it seeks to
protect – the contract – and the fact that the
ATM was
installed in the Kwikspar premises and connected to the Kwikspar
electricity supply. I do not see the distinction. ATM
Solutions did
not occupy the premises, did not control the ATM and did not have
access without the co-operation of Olkru. It did
not control any
part of the premises through the presence and connection of the ATM.
[14] Indeed, counsel for Olkru
contended that ATM Solutions had ‘relinquished control’
of the ATM. That, argue counsel
for ATM Solutions, is not the point.
They may have relinquished control of the machine, but they did not
relinquish their right
to have the machine present and connected in
the Kwikspar premises. But that right is in my view purely
contractual. The presence
of the machine in Kwikspar and its
connection to Kwikspar’s electricity supply were nothing more
than consequences of the
contract, and not incidents of actual
possession or occupation. See in this regard
First
Rand
,
12
and
Wille’s
Principles of South African Law
9 ed (2007) (general editor Francois du Bois) where C G van der
Merwe and Anne Pope state:
13
‘
Protection
for non-servitutal rights appears to be confined to those rights that
flow from or are incidental to po
ssession
of corporeal property. . . Where the non-servitutal right of use is
separate from applicant’s possession of corporeal
property it
is almost inevitably a contractual right which is not protected by
the mandament van spolie.’
[15
] Thus in my view the
relief ATM Solutions sought in the high court – reinstallation
and reconnection of its ATM in the Kwikspar
premises – amounted
to no more than an order for specific performance of the contract. In
the circumstances the high court
correctly dismissed the application
for a spoliation order. The application against Absa accordingly also
had to fail.
[16
] The appeal is
dismissed with costs.
_____________
C H Lewis
Judge of Appeal
Appearances:
For the Appellant: A Subel SC and J Blou
Instructed by:
TWB-Tugendhaft, Wapnick, Banchetti & Partners
Cape Town
Honey Attorneys
Bloemfontein
For the
1
st
Respondent: A D V LaGrange SC
Instructed by:
Conradie Davids
Cape Town
Phatsoane Henney Inc
Bloemfontein
For the
2
nd
Respondent: R T Williams SC
Instructed by:
Jan S de Villiers
Cape Town
Rosendorff Reitz Barry
Bloemfontein
1
Now reported as
ATM Solutions (Pty) Ltd v
Olkru Handelaars CC & another
[2007] ZAWCHC 63
;
2008
(2) SA 345
(C).
2
2003 (5) SA 309
(SCA).
3
[2007] 1 All SA 436
(SCA);
2008 (2) SA 503.
4
The classic cases on granting a spoliation order
for the protection of the exercise or purported exercise of a
servitude are
Nienaber v Stuckey
1946 AD 1049
and
Bon Quelle (Edms) Bpk
v Munisipaliteit van Otavi
1989 (1)
SA 508
(A).
5
Above, para 13.
6
Footnotes omitted.
7
See also
Xsinet
above para 14; cf
Impala Water Users
Association v Lourens NO
2008 (2) SA
495
(SCA), reported first in
[2004] 2 All SA 476
, where the court
considered that the rights to water in issue were not purely
contractual in origin and that they were protected
by the mandament.
8
See
Naidoo v Moodley
1982 (4) SA 82
(T) and
Froman v
Herbmore Timber and Hardware (Pty) Ltd
1984 (3) SA 609
(W).
9
1949 (4) SA 985
(W), approved in several cases
since, notably
Bon Quelle
above at 515C-E.
10
At 991.
11
Ibid.
12
Para 14.
13
Pages 458-459.