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[2016] ZANCHC 20
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Katshega Engineering Services CC v Relane (1030/16) [2016] ZANCHC 20 (24 June 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
HIGH
COURT OF SOUTH AFRICA
[NORTHERN
CAPE HIGH COURT, KIMBERLEY]
Case
No:
1030/16
Heard:
21-06-2016
Delivered:
24-06-2016
In
the matter between:
KATSHESA
ENGENEERING SERVICES
CC
Applicant
v
DESMOND
TM
RELANE
Respondent
JUDGMENT
Kgomo
JP
1.
The
applicant, Katshesa Engineering Services CC, is a close corporation
which is duly registered and incorporated in accordance
with the laws
of the Republic of South Africa, with is principal place of business
situated at Office UP3, Montana Gables, Escallonia
Street, Montana,
Pretoria, Gauteng Province.
2.
The
applicant seeks against the respondent, Mr Desmond TM Relane, an
adult male of No [...] D. S., A. P., Kimberley, Northern Cape,
the
return and delivery of a Ford Ranger vehicle with Engine number
WLAT1212175; Chassis number AFARXXMJ2RAR02291 and Registration
number
[B....] and 38 other valuable tools of the trade and equipment, with
a replacement value of about R500 000.00 and current
value of
over R300 000.00, belonging to it which, despite demand, the
respondent stubbornly refuses to restore. This
is therefore a
vindicatory application.
3.
The
applicant employed the respondent as a permanent employee on 11 May
2015 as a project manager pursuant to a mandate acquired
from the
Airport Company of South Africa (ACSA) to attend to certain landside
infrastructure upgrade at Kimberley Airport.
He would report
directly to the applicant’s Chief Operations Officer (COO).
His monthly salary was R25 000.00.
There are other
peripheral terms and conditions, which need not be gone into for
present purposes.
4.
The
applicant alleges that it was at all material times its intention,
and so understood by the respondent, that the use and possession
of
the vehicle and the tools and equipment shall only be utilized for
purposes of and for the duration of the respondent’s
employment
with the applicant. It was furthermore understood between the
parties that the respondent shall be liable to return
the vehicle and
the tools and equipment in the same good condition they were received
in, taking reasonable wear and tear into
account, at the termination
of the respondent’s employment.
5.
The
applicant makes the averment that the further Kimberley Landside
Infrastructure Project (KLIP) was running behind schedule and
upon
investigating the situation, it came to its attention that the
respondent clocked in for work in the mornings, dropped off
the
employees working under him at the appropriate site and disappeared
until closing time whereafter he put in a few working hours
to enable
him to charge the applicant for overtime. It was therefore
clear to the applicant that the reason for the overtime
hours was
self-created by the respondent as he did not put in the normal
working hours he was supposed to in accordance with his
employment
contract. It was also clear that he was intentionally
prolonging the project in order to secure his employment
for a longer
period.
6.
When
the situation was taken up with respondent, he reacted by requesting
payments never agreed on and claimed undeserved overtime
payments.
On 31 March 2016 a Notice of Termination was handed to him in terms
of which his employment was terminated and
called upon to return all
company assets including the motor vehicle, tools and equipment, set
out in the Notice of Motion, all
of which has been in his possession
at all relevant times.
7.
The
respondent wrote back to the applicant and acknowledged being in
possession of the vehicle and the other mentioned articles
but
claimed a right of retention or a lien to the property. It is
common cause that the assets belong to the applicant.
In any
event, the applicant has furnished documentary proof of such
ownership and has accordingly established a clear right as
far
as interdictory relief is concerned.
8.
The
respondent drew up his own Answering “
Notice
of Response to Affidavit”
which has not been attested or commissioned and is thus, ordinarily,
fatally flawed. It is therefore not surprising that
a point
in
limine
was taken by Adv Jankowitz, for the applicant in this regard.
See:
Nkondo
v Minister of Police
1980 (2) SA 362
(O) at 365; and
S
v Munn
1973 (3) SA 734
(NC).
However,
I will overlook this flaw for the following reasons:
8.1
The
respondent is a lay-person, not legally qualified and drew up his own
response. He has tried to ventilate something for
the
consideration of the court;
8.2
When
he appeared before me in person on 14 June 2016 he pleaded
impecuniosity (lack of finances/poverty). I requested Legal
Aid
South Africa, Kimberley, to come to his rescue and postponed the
application to 21 June 2016. Mr Sampson of LASA has
kindly
obliged. I thank him for his assistance at short notice.
8.3
Applicant
has taken his point
in
limine
belatedly, after it has already filed a Replying affidavit in which
it has itself, inter alia, purged its lack of
locus
standi
by filing a resolution to bring the application. Prior to
filing its Replying Affidavit the applicant should have brought
a
substantive Rule 30 of the Uniform Rules of Court application
alleging an irregular proceeding. A further step has now
already been taken.
8.4
If
is preferable to bring this matter to finality because all issues
have been ventilated.
8.5
This
indulgent approach does not constitute any precedent.
9.
The
respondent, as pointed out stated, drafted his own “
Notice
of Response to Affidavit”
and stated (
The
numbering and paragraphing is mine
):
“
(a)
During winding down or final stages of the project, we reminded the
company of outstanding payments and a scoop
of other legal issues not
met. These range from overtime and extra work we have not been
assigned for, weekend overtime,
labour issues with regards to UIF and
other benefits as employees of the company, as contained in the
Labour Act – Employment
Equity Bill. (b)
Although correspondence has been send to them, they tend to ignore
it; there was
a pile-up of issues and questioned the company’s
ability to interpret the law accordingly, we even doubted whether
they have
a policy as a guideline to address employee grievance
whatsoever.
(c) The other
reason why we have decided to keep the vehicle as a retainer was to
create a platform to be heard
seeing that no response was received
from our employers, and that the company doesn’t have an office
in the Province nor
the area where they conducted their services
(Kimberley Airport). We became the face of the company. The
vehicle was
stored at my residence as mentioned above for the past
nine (9) months since my involvement at the Kimberley Landside
Infrastructure
Upgrade Project. The vehicle was lawfully given to me
for use, and no conditions were made on where and how to use it.
We
are fully aware that the vehicle was traced by the Fleet Manager
of some kind; until we learned the vehicle was traced by Netstar,
who
told us they are tracing it as instructed by the owner. We
explained that we will co-operate with them but would not
give them
the keys. We expected the company to come to retrieve the keys
from me, as they gave it to me.
(d) After
numerous attempts to --- bring issues to the company’s
attention; and the letter of demand send,
I think the company was
trying to disappear without notifying or perhaps not address those
issues.
(e)
Having had numerous calls from sources of applicant including their
legal representatives, whose names have
been submitted in the
application, the issues regarding the retained vehicle became
highlight. To me it appeared that applicant
was trying to enforce the
law instead of addressing me as their employee who has grievances
that they are aware of.”
10.
Evident
from the above is that the respondent has no right of retention or
lien to the assets of the applicant and its continued
possession
thereof is unlawful and prejudices the applicant in its ownership. My
views are based on the following requirements
for a lien to be
successfully invoked. See Amler’s Precedents of
Pleadings, 7
th
Ed, Liens p262:
“
Salvage
and improvement liens:
These
liens provide dilatory defences against a rei vindicatio. If
successfully raised, the owner may not recover possession of
the
property from a person who is lawfully in possession and who has an
underlying valid enrichment claim, unless and until the
defendant has
been compensated.
Singh
v Santam Insurance Co Ltd
[1996] ZASCA 92
;
[1997]
1 All SA 525
(A),
1997 (1) SA 291 (SCA)
To rely on a lien the defendant
must allege and prove:
(a)
lawful
possession of the object;
Roux v Van
Rensburg
[1996]
3 All SA 499
(A),
1996 (4) SA 271 (SCA)
(b) that the
expenses were necessary for the salvation of the thing or useful for
its improvement;
(c) the actual
expenses and the extent of the enrichment of the plaintiff (both have
to be given because the lien
covers only the lesser of the two
amounts);
Rhoode v De
Kock and another
[2013]
2 All SA 389
(SCA),
2013 (3) SA 123 (SCA)
(d) that the
plaintiff’s enrichment is iniusta (unjustified); and
(e) that there
was no contractual arrangement between the parties (or a third
person) in respect of the expenses.
Brooklyn
House Furnishers (Pty) Ltd v Knoetze & Sons
[1970]
3 All SA 332
(A),
1970 (3) SA 264 (A)
Buzzard
Electrical (Pty) Ltd v 158 Jan Smuts Avenue Investments (Pty) Ltd
[1996]
3 All SA 1
(A),
1996 (4) SA 19 (SCA)
McCarthy
Retail Ltd v Shortdistance Carriers CC
[2001]
3 All SA 236
(A),
2001 (3) SA 482 (SCA).
”
11.
Mr
JAnkowitz raised another point
in
limine
.
That the respondent’s purported “
Answering
Affidavit”
is not an affidavit in that it has not been attested or
commissioned. I have disposed of that issue in para 8 above.
On
the other hand Mr Sampson raised a point
in
limine
that the applicant lacked
locus
standi
.
This issue has been dealt with in para 8.3 (above). The lack of
urgency that Mr Sampson also raised is a non-issue
really and has
been overtaken by events. As far as the merits are concerned Mr
Sampson conceded, fairly, that the respondent
is dead in the water.
12.
The
respondent has invoked the wrong remedy to hang onto the applicant’s
assets and by so doing has, in a sense, taken the
law into his own
hands. Prolonging this matter will only mulc him in further legal and
perhaps other costs which, it seems, he
can ill-afford.
13.
The
application succeeds. I make the following order
:
1.
The
respondent, Mr Desmond T M Relane, is ordered to deliver forthwith
the motor vehicle described as a
FORD
RANGER
with engine number:
WLAT1212175
and chassis number:
AFARXXMJ2RAR02291
and
registration number:
[B....]
to
the Katshesa Engineering Services CC at Kimberley Airport failing
which the Sheriff is directed to take possession of the vehicle
and
the assets listed in para 2 (2.1 – 2.38 (below) and deliver
same to the applicant.
2.
Deliver
of the following tools and equipment to the applicant:
2.1
x1
Air Conditioner;
2.2
x2
Mobile Trolly Containers;
2.3
x2
Grinders;
2.4
x1
First Aid Toolbox;
2.5
x1
Wheelbarrow;
2.6
x1
Spade;
2.7
x1
Pickaxe;
2.8
x1
Hosepipe;
2.9
x1
Red Toolbox;
2.10
x1
Measuring tape (100 metres);
2.11
x1
Pop-Rivit Gun;
2.12
x2
Wire Fencing Tools;
2.13
x4
Brooms;
2.14
x2
Dead Levels;
2.15
Riot
Tools;
2.16
All
Generators;
2.17
X2
Rakes;
2.18
X1
Large Grinder;
2.19
All
Bolsters Tools;
2.20
All
Chalk Liners;
2.21
X2
Earcover Buds;
2.22
X2
Fire Extinguishers;
2.23
X2
Welding Machines;
2.24
X2
Helmets;
2.25
X2
Mqala’s (Crowbars)
2.26
X8
Trowels and Trestles;
2.27
X1
Stepladder;
2.28
X3
Brick Joinders;
2.29
X2
Electrical Extensions (100 metres)
2.30
X2
Safety Hangers;
2.31
X10
Chisels;
2.32
X2
Flags;
2.33
X4
Cones;
2.34
X1
Hammer Pound;
2.35
X10
Measuring Tapes (10 Metres);
2.36
X2
Tongs;
2.37
X1
Ten Pound Hammer;
2.38
X1
Makita Drill Set.
3.
The
respondent is ordered to pay the costs of this application on the
scale as between party and party.
__________________
F DIALE KGOMO
JUDGE PRESIDENT
Northern Cape High Court, Kimberley
Counsel:
For
the
Applicant
:
Adv D.C Jankowitz
Instructed
by:
Duncan & Rothman Attorneys
For
the Respondent:
Mr B Sampson
Instructed
by:
Legal Aid South Africa, Kimberley