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[2018] ZALMPPHC 53
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Sampada Lodges (Pty) Ltd v Euphoria Home Owners' Association NPC (8242/2017) [2018] ZALMPPHC 53 (12 October 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NUMBER: 8242/2017
In
the matter between:
SAMPADA
LODGES (PTY)
LTD APPLICANT
And
EUPHORIA
HOME OWNERS’ ASSOCIATION
NPC RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The applicant Sampada
Lodges (Pty) Ltd bought Euphoria Golf Estate as a going concern from
the liquidators of Euphoria Golf Estate
(Pty) Ltd on the 5
th
April 2016. The sale included all the ervens in the golf estate
excluding those already sold to private owners. The ervens on which
the golf course and club house are situated were included in the
sale. After the property was transferred into the names of the
applicant, the applicant became the developer of the golf estate
properties consisting of the golf course and 357 ervens.
[2]
The respondent Euphoria Home Owners’ Association NPC is a
non-profit company the membership of which is limited to the
applicant and the owners of the ervens in the Estate. The
respondent’s main object is to develop, promote, advance and
protect
the communal interests, the safety and welfare of its members
by amongst others, maintaining the infrastructure and open spaces
in
the Estate. The applicant owns 357 ervens out of a total of 755
ervens in the Estate.
[3]
The respondent has appointed an administrator who handles the day to
day administration of the Estate. The administrator is
an employee of
the respondent.
[4]
The applicant alleges that its relationship with the respondent has
become strained over the last year due to the respondent’s
actions. According to the applicant, during 2016 when it was
transferring the properties from the insolvent estate into its names,
the board of the respondent refused to issue clearance certificate
for the transfer of the properties to take place, but instead
tried
to use the issuing of clearance certificate as leverage over it to
negotiate certain benefits. The respondent issued the
clearance
certificates after the applicant had obtained a court order that
compelled them to do so.
[5]
According to the applicant the second incident took place at the
Annual General Meeting (AGM) of the respondent that was held
on the
24
th
June 2017. The applicant alleges that before the
meeting it had entered into an agreement with the board of the
respondent for
payment of golf course levies as provided for by the
Memorandum of Incorporation (MOI). However, during the AGM the
validity of
the said agreement was attacked by one Mr John Stanbury.
The members who attended the meeting voted in favour of that
agreement.
However, on the minutes of the meeting that was later
circulated by the administrator the resolution was not correctly
captured.
There were also other anomalies which appeared in the
official minutes which were in direct contradiction of what
transpired at
that meeting.
[6]
According to the applicant the third incident occurred at a meeting
that was held on the 19
th
August 2017. That meeting became
chaotic and the applicant was accused of not been in good standing
with the association, and was
therefore excluded from the meeting.
The applicant’s representative left the meeting. However the
minutes that were circulated
by the administrator did not accurately
reflect what transpired at the meeting.
[7]
The applicant alleges that after the meeting of the 19
th
August 2017 it had various interactions with the respondent but that
the interaction proved to be fruitless. Thereafter the applicant
launched an urgent application in which it succeeded in removing the
directors who were irregularly appointed and also interdicting
and
restraining one Mrs Roos Hawken to act as the chairperson and to
appoint directors to the board.
[8]
According to the applicant after it obtained a court order in the
urgent application, it called for a special general meeting
to be
held as directed by the court. The applicant submits that during the
notification process, the administrator was not sending
correspondence to it and that it seemed as if she was taking
instructions from someone.
[9]
The applicant alleges that the special general meeting was held on
the 11
th
November
2017. There was a board meeting that was held before the special
general meeting. According to the applicant at the board
meeting, the
respondent was again pursuing its agenda of trying to extort transfer
of certain of its properties in order to force
the negotiations. The
applicant alleges that the minutes of the special general meeting
were not circulated by the administrator.
[10]
According to the applicant, Mrs Roos Hawken and the respondent have
caused tremendous damage to its rights as a developer,
and the Estate
as a whole, especially the golf course levies payable to it. The
applicant alleges that although the respondent
collects golf course
levies from the owners of the ervens in the Estate, it refuses to pay
the levies collected over to it. The
applicant states that it intends
suing the respondent for the outstanding golf course levies due to it
as well as for damages caused
during the period of non- payment of
these levies which resulted in the applicant using its investors’
funds to keep the
golf course afloat. The applicant further state
that it intends applying for a contempt of court order against both
the respondent
and Mrs Hawken.
[11]
The applicant is of the view that for it to prepare a proper case of
contempt of court, a claim for payment of overdue golf
course levies
and a claim for damages caused by the respondent’s unlawful
withholding of golf course levies it requires certain
items from the
respondent. The applicant alleges that it is afraid that if it simply
request the said items from the administrator,
they might be
destroyed or manipulated.
[12]
On the 7
th
December 2017 the applicant launched an
ex-parte urgent application seeking an order for the preservation of
the items it had listed
in its notice of motion in order to enable it
to prepare a proper case against the respondent. The applicant
obtained an interim
relief on the 12
th
December 2017. The
order which applicant obtained permitted the sheriff and the
applicant’s attorney who was supposed to
act in a supervising
capacity, to enter the respondent’s premises for the purposes
of searching and seizing the listed items
specified in the court
order for safekeeping by the sheriff. The applicant now seeks
confirmation of the order, and the respondent
is opposing it.
[13]
According to the respondent, the applicant has failed to establish
the requirements for an Anton Piller’s order. The
respondents
contends that the applicant is not entitled to use its Anton Piller
application to gather information in order to prepare
a proper case
for contempt of court or payment of overdue golf course levies or its
alleged claim for damages.
[14]
The requirements for the granting of an Anton Piller orders were
summed by in
Universal City Studios Inc v Network Video (Pty) Ltd
1986 (2) 734(A)
at 755 A-D where Corbett JA said:
“
In a case where
the applicant can establish prima facie that he has a cause of action
against the respondent which he intends to
pursue, that the
respondent has in his possession specific documents of things which
constitute vital evidence in substantiation
of the applicant’s
cause of action (but in respect of which the applicant can claim no
real or personal right), that there
is a real and well-founded
apprehension that this evidence may be hidden or destroyed or in some
manner spirited away by the time
the case comes to trial, or at any
rate to the state of discovery, and the applicant ask the court to
make an order designed to
preserve the evidence in some way , is the
court obliged to adopt a non possumus attitude? Especially if there
is no feasible alternative?
I am inclined to think not. It would
certainly expose a grave defect in our system of justice if it were
to be found that in circumstances
such as these the court were
powerless to act.”
[15]
The purpose of Anton Piller’s orders are to preserve evidence
to be used in a forthcoming dispute. Such evidence must
constitute
vital evidence in substantiation of the applicant’s cause of
action. (See
Shoba v Officer Commanding, Temporary Police Camp,
Wagendrift Dam, and Another, Maphanga v Officer Commanding,
South African
Police Murder and Robbery Unit, Pietermaritzburg, and
Others 1995(4) SA 1 (A) and Non-Detonating
Solutions v Durie
2016 (3) SA 445
(SCA).
[16]
The first requirements which must be satisfied is prima facie cause
of action. The applicant must show that there is evidence
which if
accepted will establish a cause of action. In
Bradbury Gretorex
Co. Ltd v Standard Trading Co. Ltd
1953(3) SA 529 (W) at 53
D-E Steyn J said:
“
The requirement
of a prima facie cause of action … is satisfied where there is
evidence which if accepted will show a cause
of action. The mere fact
that such evidence is contradicted would not disentitle the applicant
to the remedy. Even where the probabilities
are against him, the
requirement would still be satisfied. It is only where it is quite
clear that he has no action, or cannot
succeed, that an attachment
should be refused or discharged on the ground here in question.”
[17]
The applicant’s cause of action will be based on alleged claim
for payment of overdue levies and alleged damages as a
result of the
respondent’s unlawful withholding of golf course levies. The
applicant also intends to prepare a proper case
for contempt of court
against the respondent.
[18]
With regard to levies, the applicant’s claim is that the
respondent is required to collect levies from the owners of
the
ervens and pay them over to it. Clause 1.14 of the MIO reads as
follows:
“
Contributions
to the Golf Club means subscriptions for the compulsory member of the
Euphoria Golf Club as nominated in accordance
with clause 3.7.1 and
as agreed between the Euphoria Golf Club and the Association from
time to time and any amounts which Association
in its sole discretion
may pay to the Golf Club from time to time.”
[19]
Clause 1.22 of the MIO defines “Euphoria Golf Club “or
“Golf Club” as a golf club which was established
as a
voluntary association on 28
th
January 2012. The applicant
under case number
3972/2016
which was instituted by the joint
liquidators of Euphoria Lodges (Pty) Ltd in liquidation was the fifth
respondent. The applicant
under that case number had deposed an
affidavit in opposition to the first respondent (respondent in the
present application) counter
application. The applicant’s
opposing affidavit is attached to the respondent’s answering
affidavit as an annexure
JS1. In paragraph 8.4 of annexure JS1 the
applicant has stated the following:
“
The most
important matter in this regard is that Sampada is quite prepared to
pay its levies in full and does not require a reduced
levy for the
erven that it has purchased and wish to become the owner of it.”
[20]
It is clear that on reading clause 1.14, clause 1.22 of the MIO and
paragraph 8.4 of JS1, the applicant and Euphoria Golf Club
or Golf
Club are two separate entities. The applicant is also required to pay
compulsory levies on the ervens it owns to the Golf
Club. The levies
are due to the Golf Club and not the applicant. Therefore, in my
view, there is no duty upon the respondent to
collect levies and pay
over to the applicant. If indeed the respondent is collecting
compulsory levies, they must be paid to the
Golf Club and not the
applicant. The applicant has no entitlement on the levies. Therefore,
with regard to levies, the applicant
has failed to establish a prima
facie cause of action against the respondent.
[21]
With regard to the contempt of court in
Fakie No v CCII Systems
(Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at 344 E-F
Cameron JA
said:
“…
this
development of common law does not require the applicant to lead
evidence as to the respondent’s state of mind or motive:
Once
the applicant proves the three requisites ( order, service and
non-compliance), unless the respondent provides evidence
raising a
reasonable doubt as to whether non-compliance was wilful and mala
fide, the requisite of contempt will have been established.
The sole
change is that the respondent no longer bears a legal burden to
disprove wilfulness and mala fides on a balance of probabilities,
but
need only lead evidence that establishes a reasonable doubt.”
[22]
In a contempt procedure what the applicant need to establish is the
order, service and non-compliance of the order. If the
applicant is
successful in establishing the three requisites the burden shift of
the respondent who need only lead evidence that
establishes a
reasonable doubt. In my view, for the applicant to establish the
three requisites, it does not need any documents
that are in
possession of the respondent. The applicant is in possession of the
order, and if the order was served on the respondent,
it will be
having a return of service. That return of service is sufficient to
prove service of the order. If the respondent has
failed to comply
with the order, it will know in what respect it says there is non-
compliance. Therefore, in my view, in relation
to the alleged
contempt of order, the applicant has failed to show that there are
vital documents in possession of the respondent
which it needs to
commence its contempt proceedings against the respondent.
[23]
In my view, the possibility are very high that the applicant will not
succeed with the claim of levies or damages resulting
from the
alleged withholding of the levies. In relation to the alleged
contempt of court order against the respondent, I have already
pointed out that the applicant has failed to show that there are
vital documents in possession of the respondent which it needs
to
commence is contempt proceedings against the respondent. The
applicant seems to be on a fishing expedition. On these two points
alone the rule nisi that was granted on the 12
th
December
2017 stand to be discharged. I don’t see any need to deal with
the other two remaining requisites.
[24]
In the result I make the following order.
24.1 The rule nisi
granted by this court on 12
th
December 2017 is discharged.
24.2 The application is
dismissed with costs.
KGANYAGO J
JUDGE OF THE HIGH
COURT POLOKWANE, LIMPOPO DIVISION
APPEARANCE:
COUNSEL
FOR THE APPLICANT: ADV. PL UYS
INSTRUCTED
BY: MALATJI KANYANE INC
COUNSEL
FOR RESPONDENT: ADV. TP KRUGER (SC)
INSTRUCTED
BY: MACROBERT INC
DATE
OF HEARING: 27 AUGUST 2018
DATE
OF JUDGEMENT: 12
TH
OCTOBER 2018