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[2017] ZANCHC 19
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Absolute Dynamic Solutions CC v Victor and Another (323/2017) [2017] ZANCHC 19 (24 February 2017)
IN
THE IDGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 323/2017
Heard
on: 17/02/2017
Delivered
on:
24/02/2017
In
the matter between:
ABSOLUTE
DYNAMIC
SOLUTIONS
CC
APPLICANT
And
CHRISTIAN
ARNOLDUS
JACOBUS
VICTOR
1
st
RESPONDENT
CHRISTIAN
ARNOLDUS JACOBUS VICTOR
N.O.
2
nd
RESPONDENT
JUDGMENT:
SPOLIATION APPLICATION
MAMOSEBO
J
[1]
The applicant, Absolute Dynamic solutions CC, a close corporation
with registered address at 53 Harbour Close, West Beach, Western
Cape
Province, sought urgent relief by way of a
mandament
van
spolie.
It
sought an order for the restoration of its possession of mining
equipment and accessories
ante
omnia.
The application is opposed.
[2]
Adv Coetzee SC, appearing for the respondents, disputed the
urgency and submitted that it was not so urgent that it had
to be
heard by the Motion Court Judge on the same day in the absence
of exceptional circumstances. The respondents tendered
an undertaking
not to remove the equipment forming the subject matter of this
application from the premises pending finalisation
of the
application. The respondent even arranged a tentative date with the
office of the Registrar of 02 March 2017 for the hearing
and proposed
that costs be reserved for later determination. Adv Botes SC
acknowledged the undertaking by the respondents but pointed
out that
it remained within the discretion of the Court to hear the
application. The nature of the application, spoliation, necessitated
that the parties be heard as soon as possible to avoid a situation
where the relief sought would turn out to be of no consequence
if
overtaken by events.
[3]
The circumstances set out in the applicant's founding affidavit as
regards the conduct of the first respondent, Christian Amoldus
Jacobus Victor, on 07 February 2017, in my view, constitutes
sufficient compliance with Rule 6(12)(b). It is my view further that
the relief sought relating to the restoration of possession of the
movable equipment and accessories
ante
omnia,
by its
very nature renders the application urgent.
My
finding, in the
circumstances,
was
that
the
parties
should
proceed with
their
arguments
on
the merits.
[4]
There is also an application to join Christian Arnoldus Jacobus
Victor
N.O
as the second respondent. Briefly, the first respondent had alleged
the following in his answering affidavit at para 21.2:
"Ek
ontken dat ek in beheer van die betrokke items is
en voer, by herhaling, aan dat die trust
die kontrole en beheer
oor die myntoerusting
het
uit hoofde
daarvan
dat dit vrylik
en
sander
enige
dwang
aan die
trust
gelewer is en die trust
die
betrokke
artikels
huur.
"
Adv
Coetzee
submitted
that
the
respondents
do
not
oppose this application for
joinder.
As a
result,
I
was satisfied
that
Christian
Arnoldus
Jacobus Victor
N.O should
and was
joined
as
a
party
(the
second
respondent)
in the
application.
[5]
Mr Victor
is a
businessman
with his
principal
business
at Kareepan Mine, Postmasburg,
Northern
Cape
Province.
The
second respondent,
Victor
N.O,
has
been
authorised
by
the
Master of
the
High
Court,
Kimberley,
by
Letter
of
Authority
No
IT208/2001
dated
10 July
2001
to
act as trustee
of
Vicmaster
Mining Trust.
[6]
Mr
Mervin
Bruce
Horstmann
deposed to the
affidavit
as
the
sole
member
of
the
applicant.
His
averment
is
that
the
applicant
was
in
peaceful and undisturbed
possession of
the
following
mining
equipment
until
07 February
2017
when
it
was
dispossessed
of:
6.1
160
meters
of 4 Core
35
mm
armed cable;
6.2
180
meters
of 4 Core 6 10
mm armed
cable;
6.3
74 kw
Star
Delta
starter box
for
jaw
crusher;
6.4
1
set
liners for
jaw
crusher;
6.5
5.5
kw
6
pool 380
volt
electric motor for small
jaw
crusher;
6.6
Lab crushers,
including
small 10
X 6
jaw
crusher and
pulverizer;
6.7
Ripper
for
60 ton
excavator;
6.8
200KVA 380 volt
3
phase
diesel powered
generator;
6.9
1 set of 4 bucket
tips
for Volvo
generator;
and
6.10
220 volt 50
litre
per minute diesel
pump.
[7]
On or about October 2016 the applicant, represented by Hortsmann, and
Vic Master Mining Trust, represented by Victor, entered
into a
contract
in
terms of which the respondent sold to the applicant manganese
lumpy at R460.00 per metric ton for the product quantity
at
Mn
37%. Consequent thereto, the applicant established a site at the
Kareepan Mine to procure and stockpile the manganese lumpy. The
mining equipment mentioned in para 5 (above) was in the applicant's
peaceful possession, so it is said. A dispute between the parties
arose relating to the price of the manganese lumpy which resulted in
the respondent selling the manganese lumpy to third parties
at an
increased price.
[8]
On 07 February 2017 one of the employees of the applicant, Mr Boeta
Wessels, went to Kareepan Mine to have the equipment removed
from
site but the first respondent refused him that latitude by not only
prohibiting any removal of the equipment but by also instructing
him
to leave the property forthwith, an act which is admitted at para
21.1 of the answering affidavit.
[9]
The defence raised by the first respondent
in
response to the contention by the applicant that it was the
lawful possessor of the equipment, has
locus standi
to launch
the application and to seek the relief in the notice of motion is the
following:
"Die
bewerings vervat
in
die
paragraaf
onder
beantwoording
word ontken
en
ontken
ek
by
herhaling
dat
die
applikant,
wat
in
ieder geval slegs
opgetree
het
as verteenwoordiging
van Mnr Jiang,
alternatiewelik die
maatskappy,
op enige stadium
in vrye en ongestoorde
besit van enige van die items wat die onderwerp van hierdie
aansoek vorm, was en/of is.
"
[10]
Adv Botes SC, appearing for the applicant, made the submission that
the first respondent, in raising this defence, is trying
to shift the
focus from the available evidence with regards to possession. In the
contract referred to at para 6 (above) Vic Master
Mining Trust was
the "seller" represented by the first respondent while the
buyer was a company from the United Kindom,
Gallantlion Resources
(UK) Co Ltd, represented in South Africa by the applicant
(Mr
Hortsmann). Counsel submitted that the equipment forming the subject
matter of this application has nothing to do with the aforementioned
contract.
[11]
The respondents challenged the assertion by the applicant that it
conducts mining activities at Kareepan Mine and invited the
applicant
to specify what those activities entailed as well as to provide a
register of its employees who performed those mining
activities. The
response to this challenge was dealt with in the replying affidavit
which brings me to the next point of the objection
by
Mr
Coetzee to the propriety of admitting the replying affidavit.
[12]
Mr Coetzee contested the correctness of accepting the unsigned
replying affidavit. According to him the respondent's legal
team
ignored it and regarded the affidavit only as a draft which did not
warrant their attention and opted not to make any submissions
pertaining thereto. In actual fact the filing chronology was as
follows: The founding affidavit was filed on 09 February 2017;
the
answering affidavit was filed on 15 February 2017 and the the
replying affidavit was filed on 16 February 2017 for the matter
to be
heard on 17 February 2017.
[13]
What seemed evident from the papers is that
Mr
Hortsmann signed the original of the replying affidavit at
Tulbagh on 16 February 2017 which was commissioned on the same day.
According
to Adv Botes the signed replying affidavit was delivered to
the respondent's instructing attorney's offices, Engelsman Magabane,
at 15h25. The fact that this matter was brought before court on an
urgent basis is not out of the norm if the unsigned document
would be
available electronically or be made available to the Court and the
opponent to enable them to prepare adequately while
the signed
documents are in transit and subsequently filed. A properly signed
copy was handed up to me to in court confirming the
submissions by
the applicant's counsel.
It
is my view that the replying affidavit was properly and timeously
served. The respondents will therefore suffer no prejudice. Hence
I
allowed it.
[14]
The replying affidavit contains copies of quotations, Tax invoices
and proof of payment for some of the mining equipment forming
the
subject matter of this application. Adv Botes submitted that,
contrary to the contention by the respondents, the equipment
does not
form part of the contract between the buyer and the seller which
involved the UK Company. Counsel added that the equipment
enabled the
applicant to conduct its own mining activities as stated earlier of
procuring and stockpiling the manganese lumpy.
[15]
Mr Coetzee contended not the applicant but the respondents were in
possession and control of the equipment in question. What
should
however not be misconstrued,
Mr
Botes argued, was that the Kareepan Mine was the respondent's
main place of business and the applicant had set up site at the same
Kareepan Mine for purposes of their mining activities in manganese
lumpy. This is what the applicant explained at at para 19 of
its
affidavit:
"19.1
The equipment is located on the property behind a fence and secured
entrance;
19.2
The
respondent has appointed security officials to
guard the
entrance of the property;
and
19.3
It is impossible for
the applicant to access the
property
without the
respondent's prior
consent
in order to remove the equipment
from the property.
The
respondent's aforementioned conduct, i.e
to
disallow
the
applicant an opportunity to
remove the equipment
from
the property,
constitutes
spoliation.
"
[16]
A
respondent
has
limited
defences
that
can
be
raised
in
spoliation
applications,
namely: (a) denial, (b) restoration is impossible or (c)
counter-spoliation.
See
Erasmus,
Superior Court
Practice,
Volume
2 D7- 13.
In
casu
the respondents' defence
is that
of
denial.
[17]
In
Willowvale Estates
CC
and Another v Bryanmore
Estates
Ltd
1990
(3)
SA
954
(W)
at
956
D-I
Kirk-Cohen
J
considering
the
nature
of
a
mandament
van spolie,
referred to
Wille Principles of South
African
Law
7th edition at
page
198:
"Possession
is regarded by the law with such significance that a person who is in
possession of a movable thing is presumed
to be the owner of it. As a
consequence of this importance, the law affords a possessor every
possible protection and assistance;
not only in retaining his
physical control, but also in regaining it when he has been
unlawfully dispossessed. The result is that
a possessor may resist
anyone who attempts to deprive him of possession; he may remain in
undisturbed possession until another
person has legally established a
better title than his to own or possess the property in question; and
if he is despoiled of possession
he may then and there( ie before the
disposition is complete) eject his adversary or he may by summary
legal process, known as
a mandament van spolie, obtain immediate
restitution of possession without regard to his want of title. These
remedies are available
to any possessor, whether civil or natural or
bona or malafide; to a possessor of moveable or immovable property,
or of an incorporeal
right, such as a right to have a nameplate
affixed to a wall, or a servitudal right even to a possessor of
property which he has
stolen.
If
a possessor has been deprived of possession by violence, fraud,
stealth or some other illicit method, he may obtain from the
court a
mandament van spolie, or spoliation order, commanding the
dispossessor to restore the possession to himself, the applicant.
It
is a fundamental principle that no man is allowed to take the law
into his own hands. Consequently if a person without being
authorised
by a judicial decree, dispossesses another person, the court, without
inquiring into the merits of the dispute, will
summarily grant an
order for restoration of possession to the applicant, as soon as he
has proved two facts; namely, that he was
in possession, and that he
was despoiled of possession by the respondant. The policy of law is
neatly summed up in the maxim, spoliatus
ante omnia restituendus est.
"
The
learned Judge continued at 961E:
"..[A]
spoliation
must be
adjudicated
upon ante
omnia and thus
speedily.
"
[18]
Erasmus,
Superior
Court
Practice, Vol
2,
D7-1
describes
the
remedy
for
the
mandament
van
spolie
as
follows:
(a)
it
is
a
possessory remedy
;
(b)
it is an extraordinary
and robust
remedy;
(c)
it
is
a speedy remedy.
[19]
In
Ngqukumba
v
Minister
of
Safety
and
Security
and
Others
2014
(5) SA
112
(CC) at
117
para
10
Madlanga J's
pronouncements
are
instructive:
"[10]
The
essence
of
the
mandament
van
spolie is
the
restoration before all
else
of
unlawfully
deprived
possession
to
the possessor. It finds expression
in
the
maxim
spoliatus
ante
omnia
restituendus
est
(the despoiled
person
must be restored
to
possession
before all else). The
spoliation order is
meant to
prevent
the taking of
possession
otherwise
than in accordance
with the law. Its
underlying philosophy
is that no
one should resort
to self-help to obtain or regain
possession.
The main
purpose
of
the mandament
van spolie
is
to preserve
public
order
by
restraining persons from
taking
the law
into
their own
hands
and
by inducing
them
to follow due process.
"
[20]
What
seems
to
be
uncontested or
inexplicable
by
the
respondents
is the purported
connection
made
by
the
applicants
of
the
list
of
equipment
in
the
founding
affidavit
that
forms the
subject
matter
of this
application
and the tax
invoices,
quotations
and proof
of
payment
for
th
same equipment. The
respondents
have
not
challenged
the
evidence
at
all
safe for
the
vehement application to
have
the
affidavit
rejected.
There were also
copies
of
e-mail
communication
that
were attached
to
substantiate the
applicant's
operations.
[21]
At
this
stage,
I
am
satisfied
that
the
applicant
was
in
peaceful
and
undisturbed
possession
of the
mining
equipment
specified
at para
6
(above)
and must
therefore
succeed
in obtaining the relief
sought.
[22]
On the issue of costs there is no reason why the costs should not
follow the result. The submission by both
Mr
Botes and
Mr
Coetzee with
regards to the employment of two counsel on either side was that it
was prudent to appoint senior and junior counsel
because the outcome
of this application will have dire consequences for either party. I
agree.
[23]
In
the result the
following order is made:
1.
The respondents (Christian Amoldus Jacobus Victor and Christian
Arnoldus Jacobus Victor N.O) are ordered forthwith to restore
the
applicant's (Absolute Dynamic Solutions CC's) possession in respect
of the following movable mining equipment and
accessories
ante omnia:
1.1
160
meters
of
4 Core 35 mm armed
cable;
1.2
180 meters of 4 Core 6 10 mm armed cable;
1.3
74 kw Star Delta starter box forjaw crusher;
1.4
1 set liners for jaw crusher;
1.5
5.5 kw 6 pool 380 volt electric motor for small jaw crusher;
1.6
Lab crushers, including small 10 X 6jaw crusher and pulverizer;
1.7
Ripper for 60 ton excavator;
1.8
200KVA 380 volt 3 phase diesel powered generator;
1.9
1 set of 4 bucket tips for Volvo generator; and
1.10
220 volt 50 litre per minute diesel pump.
2.
The respondents are ordered to deliver and to surrender the equipment
in para 1 (above) to the applicant forthwith.
3.
The sheriff of this Court is authorised and mandated to serve this
order on the respondents forthwith at the respondents' principal
place of business situated at Kareepan Mine, Postmasburg, and by way
of electronic transmission (e-mail or facsimile).
4.
Should the respondents
refuse
or
omit
to
comply
with
the order
as
contained
in
para
1 (above),
the
sheriff
of this
court
and/or
his/her
deputy
is authorised and
mandated
to execute this
order (attach and
remove
the
equipment)
and to
do
everything
necessary
to reinstate
the
applicant's
possession
in
respect of
the equipment forthwith
and, if necessary,
to
obtain the assistance of the
South
African
Police
Services to assist him/her
in the execution of this order.
5.
The
respondents
are
ordered
to
pay
the
costs
of
this
application, including the costs
consequent upon the employment
of
two
counsel jointly and severally the one paying the other to
be absolved.
MAMOSEBO
J
NORTHERN
CAPE DIVISION
For
the applicant:
Adv FW Botes
SC Adv
ASL
Van Wyk
Instructed
by:
Fletcher's
Attorneys
For
the
respondents:
Adv
W
Coetzee
SC
Adv
AG Van Tonder
Instructed
by:
Engelsman Magabane Inc