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[2017] ZAGPPHC 906
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Venter and Others v Van Rensburg and Others (2121/2017) [2017] ZAGPPHC 906 (11 April 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 2121/2017
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
DOREEN
VENTER
1
ST
APPLICANT/RESPONDENT
JACOBA
JOHANNA DOROTHEA DU PLESSIS
2
ND
APPLICANT/RESPONDENT
COLOSSEUM
ARABIAN STUD (PTY)
3
RD
APPLICANT/RESPONDENT
DOREEN
VENTER N.O
4
TH
APPLICANT/RESPONDENT
(as
trustee of the Doreen Venter Family Trust)
COLOSSEUM
REALE (PTY) LTD
5
TH
APPLICANT/RESPONDENT
and
ANDRIES
GERHARDUS VAN RENSBURG
1
ST
RESPONDENT/APPLICANT
MILLENIUM
BODY GUARDS
2
ND
RESPONDENT/APPLICANT
JOHAN
LEMMER
3
RD
RESPONDENT/APPLICANT
JUDGMENT
KHUMALO
J
INTRODUCTION
[1]
This is an Application for leave to appeal to the full bench of this
court brought by the Respondents in the main Application
against the
whole judgment and order I delivered on 6 and 9 March 2017 granting a
spoliation order against the 1
st
, 2
nd
and 3
rd
Respondents restoring possession of a property and a dwelling
situated at Portion 16 Kameeldrift, 298 JR, Gauteng ("the
property")
to the Applicants and an interim interdictory relief
restraining the 1
st
Respondent from certain actions that
may impede on the Applicants' possession or access to the property
and the running of their
businesses from the property and from
disposing of and or encumbering in any way the 40% (forty per cent)
shares in Portion 16
Kameeldrift 298 (Pty) Ltd ("the company)
which 1" Respondent purports to have transferred to his name.
[2]
The judgment was granted pending the finalisation of an application
or action for final relief to be instituted by the Applicants
within
30 days of the granting of the order.
[3]
The Applicants have simultaneous with the Respondent's Application
for leave to appeal, launched an application in terms of
s 18 of the
Superior Court Act 10 of 2013 ("the Act") for an order
directing that the judgement and order not be suspended
pending the
finalisation of the appeal process or steps undertaken by the
Respondents. I agreed to the simultaneous hearing of
the Applications
as I had found both to require urgent adjudication notwithstanding
the lengthy documentation.
[4]
The parties are referred to as cited in the main application.
Reference to "Applicants" is to the 1
st
and 2
nd
Applicants.
AD
LEAVE TO APPEAL
[5]
The Respondents' ground for seeking leave to appeal is that there are
reasonable prospects of another court coming to a different
conclusion for the court erred in one or all of the respects
summarised as follows (highlighted and set out as subparagraphs):
[5.1] by failing to
consider the defence raised by the Respondent that of
impossibility
of return to
status quo ante
.
since the undisputed facts were that
the property consists of a farm with stables and a dwelling on top of
the stables in which
the 1st and 2nd
Applicants
previously resided, and that the 1
st
Respondent had since November 2016 been building a
"venue" which included the stables and the residence
occupied by the
Applicants.
The court
did not consider that it might be impossible for the 1
st
Respondent to return the dwelling to the
Applicants because it does not exist anymore.
[5.2] The court failed
to consider that no venue existed prior to the Applicants vacating
the property and this was objectively
established from the valuation
report, that the main structure comprises of an arena, stables and
two cottages which were being
turned into a venue since November 2016
when the Applicants were still occupying the residence. The 1
st
and 2
nd
Applicants admitted that the stables and the
residence in which they resided were being refurbished and
reconstructed to be turned
into rooms and a venue.
The walls were
being broken down and another structure being built.
[5.3] The court should
have found that the residence that the Applicants wanted restored
no
longer exists in the form it was when they vacated
same and their
possession of such residence cannot be restored as the residence
is
an uncompleted building site.
If repossession of the same thing
is not possible than the
mandament
can in principle not be
applied. By ordering restoration of possession to the 151 and 2nd
Applicants it was
ordering possession of a different
merx
in its place and not the original residence.
[6]
The Respondents had conceded that the main structure comprises of an
arena, stables and two cottages, one of which is the dwelling
that
1
st
and 2
nd
Applicants occupied. The Applicants
had indicated that they have been running a venue business in the
property prior to their eviction,
seemingly being the arena in the
valuation report. The fact that the 1
st
Respondent has
decided to refurbish the arena and some of the stables to a venue and
broken down and repaired the walls of residences
now referred to as
"rooms" did not create a new structure and render the
previous residence non-existent making it impossible
for the 1
st
Respondent to restore the Applicants in the property. Respondent had
not alleged that he could not make the necessary arrangement
to
restore the property to the Applicants, therefore not a true case of
impossibility of performance; see
Painter v Strauss; City of
Tshwane v Mamelodi Hostel Residents.
[7]
The 1
st
Respondent's Counsel Ms Strauss referred to
Fredericks v Stellenbosch Divisional Council
1977 (1) SA 526
(W) at 535 A-B which was criticized for Diemont J's statement that:
"if the original sheets of corrugated iron cannot be found
or if
they had been so damaged by the bulldozer that they cannot now be
used there is no reason why other sheets of iron of similar
size and
quality should not be used." Also to the sentiments in
Rikhotso
v Northclif Ceramics (Pty) Ltd
1997 (1) SA 526
(W) at 535A-B
'that
a spoliation order cannot be granted if the property at issue has
ceased to exist. Also at 521E where he states that:
"... while the
mandament
clearly enjoins breaches of the rule of law and
serves as a disincentive to self-help, its object is the interim
restoration of
physical control and enjoyment of specified property-
not its reconstructed equivalent."
[8]
The difference is that in
Frederick
the corrugated iron was so
demolished that the structure did not exist anymore which is
different to the situation
in casu.
The structure that
comprises of the Plaintiffs' residence still exists whether with or
without refurbishment. It has not been totally
demolished and a new
structure built in its stead. The Respondents has in his argument
alleged the merx to have been either destroyed
and therefore
non-existent or to be now in a different form. He has to allege and
prove that he in good faith is in no position
to be able to restore
the property to the Applicants. The two authorities confirm that
impossibility is usually accepted where
the property is either
destroyed or damaged beyond repair or transferred to an innocent
party. In the unreported matter of
City of Tshwane Metropolitan
Municipality v Mamelodi Hostel Residents
2011 ZASCA 277
, after
the city agreed with the residents of the Mamelodi Hostel that they
will be removed and placed in alternative accommodation
for a
redevelopment and renovation of their hostel, the residents
afterwards refused to vacate the hostel. The city proceeded with
the
help of the police to demolish the roof covering and roof structures
whilst the residents were in occupation. On a
mandament van spolie
application for the repossession of the destroyed property, the
city was ordered to restore the roof structures and roof covering
to
the condition they were prior to the destruction thereof. The order
was confirmed at the Gauteng High Court. On appeal to the
SCA the
city raised a defence that the demolishing was by consent, the
residents consented to the demolition of the hostels whilst
on the
other hand conceding that the residents were dispossessed and were in
peaceful possession. The SCA dismissed the contention
that
dispossession lawful because of consent and granted the spoliation
order with the court satisfied that the requirements thereof
complied
with.
[9]
The Respondent has also pointed out that he informed the Applicants
to vacate the premises by end of November 2016, the reason
being that
he had to negotiate with the majority shareholder to refurbish the
property and to turn it into a lodge and venue. Due
to the pending
negotiations he is in no position to totally demolish the buildings
without having secured the necessary approval
for the refurbishment
and reconstruction. At the same time he has alleged to have started
refurbishing and reconstructing the buildings
by the time the
Applicants vacated the property. In that instance the Applicants were
spoliated from a refurbished and reconstructed
residence and
therefore there is no new merx. Accordingly from the dictum in
Mame/odi Hostel Residents
a conclusion may be drawn that the
mandament van spolie
is available in instances where the parts
of the property have been destroyed and the spoliator is required to
do something to ensure
that the status quo ante is restored.
[9.1] The court failed
to consider that due to the "sms
" it should have arrived
at a conclusion that she left on her own as per agreement with
the
1
st
Respondent. That there has been an arrangement about
her vacating the premises prior the 1
st
Respondent's visit
at the premises. The court also erred in not finding that 1
st
Applicant admitted in the sms that the "place" being the
residence was regarded by the 1
st
Applicant as the 1
st
Respondent's place and not her own.
[10]
The context of the sms was extensively dealt with in the judgment
taking into account the admitted facts in both parties' version.
According to the 1" Respondent he demanded that Applicants
vacate their residence by the end of November 2016. So there was
no
arrangement. By the 1
st
of December she has not left and
that evening 1" Respondent and Lemmer came to the property with
5 security guards in a vehicle
flashing blue lights, scaring her. She
said she therefore sent the sms, to avoid a confrontation, which did
not work because the
Respondents proceeded to their residence anyway
to warn her to leave by the next day, otherwise she will be thrown
out. I had found
that under the circumstances the Respondent's
allegation that they were invited to the residence by the 1
st
Applicant and had an amicable discussion about her departure was far-
fetched.
(National Scrap Metal v Murray
&
Roberts
2012
(5) SA 300
(SCA) paras 21-22. They would not have returned the
next day and padlocked the premises whilst the 1st and 2nd Applicants
were out
and give instructions that they should not be let back into
their residence. That conduct is instead inconsistent with an
amicable
agreement but in line with the threat they issued the
previous day. They also knew that the Applicants have not vacated
their residence
that is why they issued instructions that they were
not to be let back in.
[10.1] The court
failed to consider that the 1
st
Respondent denied that he
attended to the premises with 5 security guards in blue flashing
lights vehicles, and that the 1
st
Respondent stated that
he and 3n1 Respondent were in one vehicle and only one other vehicle
was there being a security vehicle.
Also that on her own version 1
st
Applicant was not scared. She did not vacate the premises due to
threats as she did not leave the premises on 2 December 2016,
but she
went shopping and returned and heard that the premises were locked.
[10.2] The court
failed to address in any manner that the 3
rd
Respondent was involved in threats and or
intimidation and or coercion of the Applicants to vacate the
premises, if indeed they
were spoliated on 2 December on their return
from the shops. 1
st
Applicant does not set out any facts upon which the
3
rd
Respondent
threatened the 1st and 2nd Applicants to vacate the premises. The
court erred in finding the Respondents to be co spoliators
as no such
evidence exists nor warranted granting costs against the 2nd and 3rd
Respondent
.
[11]
Venter had
alleged that she found the 1
st
Respondent and 3rd Respondent arrival at the property with the 5
bodyguards flashing blue lights similar to police vehicles
very
intimidating and she was scared.
Neither the 1
st
Respondent in his answering affidavit nor the 3
rd
Respondent in his confirmatory affidavit denied that they were
accompanied by the 5 body guards. 1
st
Respondent instead
mentioned that only 1 security guard vehicle accompanied the vehicle
that conveyed him and 3
rd
Respondent to the property
without mentioning the number of security guards. Also that 1
st
Respondent and 3
rd
Respondent came into their residence
threatened and warned them to vacate the property by the next morning
the 2
nd
of December 2016, otherwise they were going to be
physically removed from the property. It is therefore not correct
that Venter
said she was not scared and that there was no evidence of
the involvement of the 2
nd
and 3
rd
Respondents.
[13]
Coercion is therefore established from the combination of all these
acts by the Respondents. On his own version the 1
st
Respondent had demanded that the Applicants leave the premises by the
end of November. On the night of 1
st
December 2016, he
appeared at their residence in the company of bodyguards and 3
rd
Respondent, threatened and warned the 1
st
and 2
nd
Applicants that they must be gone by the next day. He comes back the
next day on 2 December 2016, again with 3
rd
Respondent,
they instruct the padlocking of the Applicants' residence and that
they are not to be let back into their residence
(see
Painter v
Strauss
1951(3) SALR 307 (0) at 314B-C).
[13.1] The court
failed to take all the combination of the circumstances and the
communication between the parties that took place
after 2 December
2016 pointed to a business deal that had turned sour between the
parties for several reasons that are disputed
between the parties,
and not spoliation.
[14]
There is no merit to the allegation that the court failed to consider
all the circumstances and the communication between the
parties that
took place after 2 December 2016 which pointed to a business deal
that for several reasons is in dispute between the
parties not
spoliation. Any other issues that exists between the Applicants and
the Respondent cannot be a subject of adjudication
in a spoliation
action which only decide the the right of immediate possession
pending the resolution of the ultimate right.
[14.1] The court failed
to consider that the Respondents are seeking to actually enforce a
contractual right or spes to such right
by way of mandament van
spolie in order to regain possession of the premises, thereby
regaining control of the stabling business
of the 3ro Respondent by
way of interdict.
[15]
The Applicants by removing the 1
st
and 2
nd
Respondents from the residence they made it impossible for them to
run their businesses that are run from the property. The Respondents
have as a result in their spoliation of the Applicants also taken
over their stabling business that the 1
st
Respondent is
personally running, having technically spoliated the Applicants of
the business as well.
[15.1] The court erred in
finding that the 1
st
Respondent sold her shares worth RSM
to the 1
st
Applicant as the 1
st
Respondent
admitted that the amount is due and payable by her to the other
shareholder.
[16]
The court did point out that one of the issues between the parties is
the purported sale of shares of the 4
th
Applicant, the
Venter Family Trust in Kameeldrift. The interim interdict to stop 1
st
Respondent from dealing with the 40 % shares whilst the dispute
remains is justifiable. In granting the order the court just
indicated
how improbable it would have been, looking at the documents
generated between the parties indicating the value of the shares and
what was probable discussed by the parties as a consideration for the
payment of the shares that it is unlikely that the R1000000
would
have been agreed upon as the amount payable for the shares and the
transfer thereof.
[17]
In deciding the matter all the relevant facts were duly considered,
weighing the probabilities and drawing the possible inferences
from
the admitted or proven facts as substantially outlined in my
judgment.
[18]
Even if the 1
st
Respondent still argues that there was an
agreement that the Applicants will vacate the premises. The
padlocking of their residence
whilst they were temporarily out of the
premises with orders not to let them back in amounts to spoliation;
see
Pointer supra.
[19]
There are therefore prospects of another court arriving at a
different conclusion.
INTERIM RELIEF
[20]
Ms Strauss, the Respondents' counsel's starting point in arguing the
Application was a submission that the interdict granted
might be
interim, however its effect is the same as that of a final interdict
because even though it is granted
pendent lite,
pending the
action to be instituted by the Applicants within 30 days of the date
of the order, it will take probably about 3 or
more years to finalise
the pending action. On that basis its effect should not be regarded
as temporal but final or permanent.
I was implored to consider the
Application from that perspective.
[21]
The position in regard to an interdict granted temporarily is
extensively discussed by EM Grosskopf JA in
Knox D'Arcy Ltd and
Others v Jamieson
&
Others
[1996] ZASCA 58
;
1996 (4) SA 348
(A) ([1996]
3 All SA 669)
as follows:
'In passing it may be
noted that the grant of an interim interdict stands, historically on
a different footing. As far back as
Prentice v Smith
(1889) 3
SAR 28 the Court held (at 29)
that an order granting an interim
interdict "is an interlocutory order, and that consequently
there can be no appeal".
On the whole
this view
was
followed in the Provincial Division (see
Loggenberg v Beare
1930
TPD 714
;
Davis v Prews
& Co
[1994 CPD 108]
; and
authorities referred to in those cases) and, ultimately,
prevailed
in the Appellate Division
(African Wanderesfootbool Club/Pty)
Ltd v Wonderes Football Club
1977 (2) SA 38
(A) at 46H-47A and
Cronshaw's case
supra).
Some judges have questioned the
validity of the distinction between the refusal and grant of the
interim interdict. This distinction
cannot be justified by the nature
of the proceedings giving rise to the decision- it is the same in
both cases (see for example,
Davis v Press
& Co
(supra
at 118 per Fagan J)). And it may be argued that the prejudice
suffered by the unsuccessful party also does not differ in principle.
See Davis' case supra at 112 -13 (De Villiers J). However, in
Loggenberg's
case
supra,
Greenberg J expressed the view
(at 723) that "there is in fact a real distinction on the
question of irreparability between
the case of a granting of a
temporary interdict and the refusal of a temporary interdict'. There
may also be a difference in the
finality of the decision.
Thus, as
stated above, the refusal of an interim interdict is final.
It
cannot be reversed on the same facts (I disregard the possibility,
discussed above, of a refusal on some technical ground). The
same may
not be true of the grant of
an interim interdict.
It
may be
open to the unsuccessful respondent to approach the court for an
amelioration or setting aside of an interdict, even if the
only new
circumstance is the practical experience of its operation.
And,
apart from the theoretical differences between the grant and the
refusal of an interdict, there is also the practical one,
discussed
in Cronshaw's case at 12-15,
that an appeal against the grant of a
temporary interdict would often be inconsistent with the very purpose
of this remedy.
See also
Davis v Press
&
Co (supra
at 119 (Fagan J))." (my
emphasis)
[22]
It is therefore settled by authorities that the granting of an
interim interdict generally cannot be a subject of an appeal.
In
Metlika Trading Limited and Others v Commissioner,South African
Revenue Services
2005 930 SA 1
(SCA)
(2004) JTLR 73
;
[2004] 4 All
SA 410)
the court however held that an interim interdict is
appealable if it is final in effect and not susceptible to alteration
by the
court of first instance. In determining whether an order is
final in effect, it is important to bear in mind that 'not merely the
form of the order must be considered but also, predominantly, its
effect
(South African Motor Industry Employers' Association v
South African Bonk of Athens Ltd
1980 (3) SA 91
(A) at 96H).
[23]
The crucial question however is whether, as argued by the Respondent
the interim order granted in this matter is of final effect
due to
the fact that finalisation of the pending litigation might be
delayed. The effect refers to substance rather than the form
or
procedure.
[24]
The substrate of the order granted
in casu
is to prohibit the
Respondent from dealing with the 40 % shares in Kameeldrift that were
purportedly transferred to him by 1
st
Applicant and
operating Applicants' businesses that were run from the property
until the dispute relating to same is finalised.
The Respondent had
gained control of the businesses and property by spoliation and his
claim to holding over on the property and
the business is based on
the disputed transactions that were allegedly entered into with the
1
st
Applicant that are to be adjudicated upon in the
action to be instituted by the Applicant. The effect of the order
granting the
interim interdict is therefore temporal being
operational only for a certain period and not appealable.
[25]
Furthermore, on the granting of an interim interdict it is open to
the unsuccessful respondent to approach the court for an
amelioration
or setting aside of an interim interdict at any time before the final
order is made, even if the only new circumstance
is
the practical
experience of its operation.
The contention therefore that the
delayed finalisation of the pending litigation in this matter makes
the interim interdict final
in effect is not sensible. A final
interdict is as a rule granted without any limitation as to time
(Estates Edwards v Sinclair
1918 EDL 12
at 18).
[26]
Ms Strauss had argued the point also during the hearing of the
interim interdict application that. in substance the Applicants
were
seeking a final relief. i had found no merit in the argument, as I
have indicated that the substrate of the relief sought
is temporary
and finality of the issues was to be determined in the pending
action. The 1" Respondent has failed to make a
proper case for
the court to reach a contrary view. He has not been able to make a
case that the effect of the interdict is final.
AD s 18 (1) APPLICATION
[27]
It is a well-established common law rule of practice in our courts
that generally the execution of a judgment is automatically
suspended
upon the noting of an appeal. As a result, pending the appeal no
effect can be given to the judgment, except with the
leave of the
court which granted the judgment. See
South
Cope Corporation (Pty) Ltd v Engineering Management Services (Pty}
Ltd
1977 (3) SA 534
(A) at 544H-545A. The
purpose as noted in the judgment was to prevent irreparable harm that
the execution of the judgment might
cause to the intending Appellant.
[28]
In
University of the Free State
v
Afriforum ad Another
[2017 1 All SA 99
(CC)
the SCA elucidated the historical
development of the rule with such clarity that the order arrived at
in this matter is informed
by the decision. The common-law rule of
suspension of the decision pending the appeal is now decreed in s 18
of the Superior Court
Act 10 of 2013 ("the Act"). It also
provides for the granting of an order to the contrary by the court if
the Applicant
proves that:
(1) exceptional circumstances exists;
s 18 (1)
(2) he/she will on a balance of
probabilities suffer irreparable harm if the order is not made; s 18
(3)
(3) the Respondent will not suffer
irreparable harm if the order is made.
[29]
The existence of exceptional circumstances depends upon the peculiar
facts of each case; see
University of the Free State
v
Afriforum ad Another
[2017 1 All SA 99
(WCC) v Stellenbosch
Universiteit.
The SCA referred to Sutherland J statement in
Incubeta Holdings (Pty) Ltd and another v Ellis and another
2014
(3) SA 189
(GJ)
that:
"... exceptionality
must be fact specific. The circumstances which are or may be
'exceptional' must be derived from the actual
predicaments in which
the given litigants find themselves."
[30]
In
Afriforum,
Fourie AJA implored the court when evaluating
the circumstances relied upon by the Applicant, to bear in mind that
what is sought
is an extra ordinary deviation from the norm, which in
turn, requires the existence of truly exceptional circumstances to
justify
the deviation.
[31]
In considering whether the prospects of success in a pending appeal
should play a role in determining whether or not to grant
the order
Fourie AJA agreed with the approach in
Minister of Social
Development Western Cope and others v Justice Alliance of South
Africa and another
[2016) ZAWCHC of Binns-Ward J (Fortuin J and
Boqwana concurring) that prospects of success in an appeal remain a
relevant factor.
In relation to an application in terms of s 18 (3)
he explained that:
" ... the less
sanguine a court seized of an application in terms of s 18 (3) is
about the prospects of the judgment at first
instance being upheld on
appeal, the less inclined it will be to grant the exceptional remedy
of execution of that judgment pending
the appeal. The same quite
obviously applies in respect of a court dealing with an appeal
against an order granted in terms of
s 18 (3)."
[32]
The Applicants' case is based on the rationale that the very nature
of the remedies or orders granted are of exceptional circumstances.
The urgency and the fact that the interdict is of temporary effect.
[33]
Practically, as discussed in
Cronshaw
&
Another v Coin
Security Group (Pty) Ltd
[1996] ZASCA 38
;
1996 (3) SA 686
(A) 9[1996]
2 All SA
435)
at 690D-E's case at 12-15, an appeal against the grant of a
temporary interdict order would often be inconsistent with the very
purpose of this remedy which is to protect the right of the
complainant party pending an action or application to be brought by
him to establish the rights of the respective parties (See also
Davis
v Press
&
Co
[1994 CPD 108]
at 119 (Fagan J)). As it
is similar with a Spoliation order, basically a speedy remedy,
intended to prevent the continuous harm
suffered by the Applicant by
remedying, at once, the effects of an unlawful action pending the
resolution of the merits of their
dispute. So the appeal against a
spoliation order would defeat the very purpose of the remedy.
[34]
The order granted for an interim interdict has been proven to lack
any final effect, therefore not appealable, a fact relevant
to the
prospects of success of Respondent's appeal.
[35]
As the interim interdict granted
per se
is not appealable
there cannot be any prospects of success if the Respondents persists
on an appeal. The delay in the execution
of the order judgment in
such circumstances is reasonably fair and justified.
[36]
In the Spoliation order the 1
st
Applicants have indicated
that the Application was brought on an urgent basis due to the
ongoing irreparable harm suffered by the
Applicants. Furthermore if
the Respondent does not restore the possession of the property to the
Applicant, the consequences are
dire to her.
[37]
The facts in brief are that 1
st
Applicant Venter in her
representative capacity as trustee of the 4
th
Applicant,
the Venter Family Trust hold 40 % of the shares in Kameeldrift, a
property she and her 73 year old mother occupied and
from which she
ran a business of studs and stabling of horses through the 3
rd
Applicant, a company in which she is the sole director. The 3
rd
Applicant owns the horses with an estimated value of R9 000 000.00.
Venter also ran the business of a venue that was managed by
her
mother through the 5
th
Respondent. At the beginning of
November 2016 negotiations ensued between her and the 1
st
Respondent who was interested in buying the trust's shares in
Kameeldrift valuated to be worth R5 885 000.00. The remainder of
the
shares belong to one Toebes and carry a value of R8 000.00. The
content and the validity of the discussions, agreements or
resolutions reached are in dispute. On or about 25 November 2016, the
1
st
Respondent paid an amount of R1 000 000.00 to the 1
st
Applicant. The latter alleges that it was a loan the security of
which was to be through the transfer of 50 % shares in the 3
rd
Applicant to be held until the money is paid back. However 1
st
Respondent alleges that he was paying for the 40 % in Kameeldrift
which shares were subsequently transferred to his name by the
1
st
Applicant. 1
st
Respondent, as a result demanded that
Venter and her mother vacate the premises by the end of November
2016. On their failure to
do so 1
st
Respondent went to the
property on the evening of 1 December 2016 accompanied by security
guards and the 3
rd
Respondent whereupon Venter was
threatened and warned to vacate the residence by the next day,
failing which he was going to throw
them out or remove them. On 2
December 2016, Venter and her mother went to the shops and on their
return after lunch they learned
that 1
st
Respondent and
3
rd
Respondent were at the property earlier that day
and their residence was padlocked with instructions to the personnel
not
to let them in.
[38]
Venter and her mother have been staying at a guest house. They have
not been able to operate any of the businesses which is
their only
source of income and therefore have not been generating any income.
The 1
st
Respondent has taken over the stud and stabling
business of the 1
st
and 3
rd
Respondent and gone
to an extent of instructing clients to pay the money meant for the
business into his account.
[39]
The Applicants allege that the 1
st
Respondent's unlawful
actions
will
persist, defeating the purpose of the urgent
spoliation order and the interdict and giving effect to the prejudice
that the court
was trying to prevent, causing irreparable harm,
since:
[39.1] They have been
thrown into financial difficulties. She is expected to pay for her
and her 73 year old mother's accommodation
somewhere else whilst she
is not making a living therefore with no income. Basically the 1"
Respondent continues to interfere
with their right to make a
livelihood and arbitrarily deprive them of their right to housing or
accommodation. They therefore continue
to endure true hardship and
irreparable harm
[39.2] The Applicants
continue to suffer a loss as they are unable to continue to run their
businesses with the concomitant
risk
of potential claims
against the businesses by clients who have entrusted her with their
studs and horses. Already there has been
complaints by owners about
the neglect of the horses.
[39.3] The welfare of the
animals and the related business remains at stake as she is, inter
alia, unable to prepare the mares scheduled
to be inseminated for the
breeding that has to take place for the period between October and
March. The foals to be borne would
carry a value of between R300
000.00 and R750 000.00.
[39.4] Horses that take
part in the annual championship have not been trained for this year's
championships. Some of them have won
in 2016 in their classes and
therefore have to compete to maintain their status and value. Another
foal has been born and nobody
informed the Applicants about it. She
heard from the vet. The foal and the mother mare costs about R150
000.00.
[39.5] The Respondent has
not only taken their only source of income but he also has advertised
the business under a different name.
Which Applicant argues indicates
that he is intending a total takeover of her business causing panic
amongst clients.
[39.6] Business that was
to take place at the venue in March 2016 has been lost. It had a
potential to bring more business with
a lot of enquiries by events
and wedding planners.
[39.7] Their residence
remain padlocked and they are still being refused access. Although
alleged to be a building site the integrity
of their residence
remains and therefore still in a habitable state. Only the roof has
been partly removed and could be replaced
although the house still
habitable without it. The horses can be accommodated the wooden
stables
[40]
The Applicant has indicated that there will be no harm suffered by
the 1
st
Respondent. He has no right to the property since
he still has to negotiate to buy Teubes' 60 % shares whilst there is
an ongoing
dispute about his alleged acquisition of the 40% shares of
the 4
th
Applicant valued at approximately R5 885 000.00
(Five Million Rand). The Applicant has tendered the R1 000 000.00
(One Million
Rand) back to him. He also has no right in law to the
monies that he is collecting, therefore payment back to the Applicant
will
cause him no harm.
[41]
To counter Applicant's application and allegation on the harm she
says she continues to suffer, the 1
st
Respondent alleges,
that:
[41.1] the stabling
business is running at a loss and he is not interested in the stud
business.
[41.2] The advertisement
of the business under a new name was not true and he was unaware of
it, done by a client without his involvement.
[41.3] He, as well has
been praised for the efficient running of the stabling of the horses.
[41.4] The building is
not habitable as the construction continued right through from the
time the urgent application was served until the time they
received the judgment. Venter has been informed of the impossibility
of performance due to the structure being inhabitable.
[41.5] The newly built
area is not risky to her occupation as she has moved the horses to
the wooden stables where no building is
taking place and therefore no
more risk for the animals.
[41.6]
The amount that
the stabling business is to make is very small.
[41.7] The clients
have signed an indemnity against the damage or injury to their horses
irrespective of the cause.
[41.8] 1
st
Applicant's studs are available to her to inseminate anytime she
wants, just like any stablers, he is not interested in them. He
denies that the horses are neglected and argue that the attached
photo of the horse alleged to be neglected was taken when it was
turning as at its most its ribs would obviously show.
[41.9] The venue has not
been so busy as she alleges. The last event happened in December 2016
for an event by a school.
[41.10] Their belongings
are still stored in the storeroom under padlock as well as in the
residence that Venter wants to occupy.
[42]
The contentions by the Applicants are material and with merit. There
is a substantial indication of irreparable harm that the
Applicants
continue to suffer that underscores whatever maybe the harm shown
might be suffered by the Respondent. lt is common
cause to the
parties that 1" Respondent still has to negotiate for the shares
and the refurbishment of the property with the
majority shareholder
and Venter has tendered to pay back the R1 000 000.00 which he still
has to accept.
[43]
On the impossibility of performance the 1" Respondent does not
deny that their residence is still there as he says that
their
belongings are still stored in the structure which is still
padlocked. Willis' principles of Evidence states that "Where
a
spoliator deliberately or recklessly destroys or materially damages
property to avoid having to restore it, justice is not served
when
the order is refused on grounds of impossibility of restoration (City
of Tshwane
supra).
Respondent has not alleged that he could
not make the necessary arrangement to restore the residence to the
Applicants therefore
not a true case of impossibility of performance.
[44]
Considering the non-appealability of the interim interdict and the
urgency of the remedy of the spoliation order that they
are of
exceptional circumstances and decreases the prospects of another
court arriving at a different conclusion, it will be appropriate
and
just to grant the exceptional remedy of execution of the orders
pending any further appeal process. The harm as stipulated
by the
Applicants substantiates the justification of the non-suspension of
the execution of the judgment.
Under
the circumstances the following order is made:
[1] The leave to appeal the order for
both spoliation and the temporary interdicts is refused.
[2] The Application to implement the
order of this court delivered on 6 and 9 March 2017 is granted with
costs. The judgment and
order will not be suspended pending the
determination of any appeal process.
[3] The Respondent has an automatic
right of appeal; which right of appeal must be exercised and dealt
with as a matter of extreme
urgency; and pending the outcome of the
appeal the order is automatically suspended.
_____________________
N
V KHUMALO
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION: PRETORIA
For
the Applicants: Mr Bornman
Instructed
by: Bornman Inc Attorneys
GR
Bornman/V44
012
342 3341
For
the Respondents: Adv S Strauss
Instructed
by: Rianie Strydom Attorneys
rianie@rstrydomprok.co.za
012
747 6100