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[2016] ZANCHC 74
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C-Rock Mining (Pty) Ltd v Rockwell Resources RSA (Pty) Ltd and Others (2400/2016) [2016] ZANCHC 74 (29 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Reportable:
NO
Circulate
to Judges: YES
Circulate
to Magistrates:NO
Circulate
to Regional Magistrates: NO
REVIEW CASE NO:
2400/2016
DATE HEARD:
25/11/2016
DATE DELIVERED:
29/11/2016
In
the matter between:
C-ROCK
MINING (PTY)
LTD
Applicant
and
ROCKWELL
RESOURCES RSA (PTY)
LTD
1
st
Respondent
H
C VAN WYK DIAMONDS
LTD
2
nd
Respondent
SAXENDRIFT
MINE (PTY)
LTD
3
rd
Respondent
PIONEER
MINERALS (PTY)
LTD
4
th
Respondent
Coram:
Olivier
J
JUDGMENT
Olivier
J:
A.
Introduction
[1.]
On 4
November 2016 the applicant, C-Rock Mining (Pty) Ltd, brought an
urgent application in which Rockwell Resources RSA (Pty) Ltd
, H C
Van Wyk Diamonds Ltd , Saxendrift Mine (Pty) Ltd and Pioneer Minerals
(Pty) Ltd were cited as, respectively, the first, second,
third and
fourth respondents. It is not in dispute that the respondents
for purposes of this application have shared interests
and have been
properly joined.
[2.]
The
application was based on the
mandement
van spolie
.
The relief claimed against the second and third respondents in the
notice of motion can be summarised as follows:
2.1
That they return computers and hardware to the applicant
at the
Saxendrift and Wouterspan mines and that they restore the applicant's
access to the internet and the communication and telephone
systems at
those mines.
2.2
That they return to the applicant possession of the so-called
wet
plant at the Wouterspan mine, remove all their employees from the wet
plant and stop operating the wet plant.
2.3
That all employees of the second respondent be removed
from the
mining equipment at the Saxendrift, Remhoogte and Wouterspan mines
and that the applicant's possession of that equipment
be restored.
2.4
That the applicant 's access to offices, warehouses,
storerooms and
"
all
facilities
"
at the Remhoogte, Saxendrift, Wouterspan and Nuwejaarskraal (“
NJK
”)
mines be restored.
2.5
That the applicant be allowed free access to the NJK
mine and to
remove equipment required by it from that mine.
[3.]
All these
mines are situated within the area of jurisdiction of this Court.
[4.]
On 7
November 2016 Coetzee AJ, after having heard argument on 4 November
and on the founding papers only, "
on
an interim basis with immediate effect, pending the final
determination of this application
"
granted the relief sought (but restricted the relief in respect of
the wet plant to section 2 of the plant), and in addition
ordered
that the respondents "
do
all things necessary to re-instate the legal appointments of all the
employees of the applicant who held such legal appointments
as at 2
November 2016
".
I was informed from the bar that the order regarding the appointments
was granted after the notice of motion had at
the hearing been
amended to include a prayer to this effect. Costs were reserved
for later determination.
[5.]
The order
of 7 November 2016 did not include a return date which could be
anticipated in terms of Uniform Rule 6 (8). The
fact that the
order had not been made in the absence of the respondents would also
have precluded them from setting the matter
down for reconsideration
in terms of Uniform Rule 6 (12) (c). The matter was however set
down for hearing on 16 November
2016 and answering and replying
papers were filed. On that day the application was postponed to
25 November 2016, and
costs were once again reserved.
[6.]
On 25
November 2016 the matter was heard as if it was a return date and on
the basis that what had to be decided was whether the
relief sought
in the notice of motion, as well as the interim relief regarding the
appointments, should be granted on a final basis.
[7.]
Due to
the fact that final relief was eventually claimed factual disputes
were approached in accordance with the so-called
Plascon-Evans
rule that final relief would only on the papers be ordered “
if
the facts averred in the applicant's affidavits, which have been
admitted by the respondent, together with the facts alleged
by the
latter, justify such order. This is so unless the respondent's
version consists of bald or uncreditworthy denials,
raises
fictitious disputes of fact, is palpably implausible, far-fetched or
so clearly untenable that the court is justified in
rejecting them
merely on the papers
”
[1]
.
[8.]
In his
replying affidavit the deponent for the applicant, Mr Melchior
Jacobus Van Niekerk, made much of concessions which counsel
who had
represented the respondents on 4 November had been prepared to make
as far as the relief set out in the notice of motion
was concerned.
It was also referred to in argument before me by Mr Daniels SC on
behalf of the applicant. Whatever
concessions may have been
tendered at that stage would probably have been for purposes of
interim relief only, and they could in
any event never bind this
court in its consideration of what has been placed before it for
purposes of the final relief which the
applicant eventually sought.
[9.]
The fact
that some of the relief granted on 7 November 2016 has already been
given effect to, and that in respect of some of the
other relief it
has been conceded that the applicant had been entitled to access or
possession, makes no difference to the issues
to be considered at
this stage. At this juncture it not only has to be decided what
final relief the applicant is entitled
to, but also, and at least as
far as costs are concerned, what relief the applicant had been
entitled to even on an interim basis.
Even if possession now
appears to be common cause, it would still be necessary to decide
whether that possession was shown to have
been despoiled.
B.
Authorisation
[10.]
In the
replying affidavit the authority of Mr Adriaan Jacobus Benson, the
deponent for the respondents, to oppose the application
is challenged
on the basis of him having failed to annex a resolution to this
effect to the answering affidavit. In argument
Mr Daniels SC,
counsel for the applicant, pursued this argument, although not
vigorously. It is trite that it is not always
necessary to
produce such a resolution (particularly not when there is not yet any
indication that the issue of authority may arise)
[2]
,
and equally trite that a challenge to the authority to institute or
oppose court proceedings should be done through the mechanism
of
Uniform Rule 7, and most certainly not like this
[3]
.
[11.]
Mr
Daniels speculated that Mr Benson could not have personal knowledge
of all that he deposed to in his affidavit, but he never
formally
objected to the admissibility of Mr Benson’s affidavit in
evidence, nor did he apply for the striking out of any
parts of it.
C.
History
[12.]
The
applicant and various respondents concluded contracts which, as far
as the applicant is concerned, resulted in access to the
sites of the
abovementioned mines and in possession of,
inter
alia
,
certain equipment there, and it appears that even before the
conclusion of the contracts there had between the applicant and the
group of respondents been a working relationship which had resulted
in such access and possession. The precise extent of
the access
and possession is, however, in dispute.
[13.]
The
relief claimed is spoliatory in nature. I do not agree with the
contention that, if on the respondents' version the applicant
is
actually claiming more than what it enjoyed at the time of the
alleged spoliation, the basis of the claim somehow changes and
would
no longer be spoliatory in nature. The claim remains
spoliatory, and the fact that there may be a dispute about the
exact
measure of possession that an applicant had enjoyed cannot detract
from this. If it is found that an applicant did
in fact have
possession, but not to the extent alleged by it, the applicant would
simply only be entitled to the restoration of
such possession as it
had enjoyed. It would therefore at this stage be unnecessary,
and indeed inappropriate, to become involved
in the detail of the
disputes that obviously exist in the present matter about the
applicant's entitlement to the possession and
access concerned here.
[14.]
Mr Green
SC, counsel for the respondents, argued that the applicant, by
referring to the contracts between the parties in founding,
had
introduced into the present dispute the issues regarding the actual
possessory rights of the applicant. I disagree. The
agreements
were clearly referred to as background, and not to obtain anything
more than spoliatory relief.
[15.]
Mr Green
furthermore argued that, because some of the relief sought went
further than merely orders that possession be restored,
the
application could no longer be regarded as a spoliation application.
He singled out the relief that is aimed at the removal
by the
respondents of their employees from the wet plant and from equipment,
at authorisation by the respondents of the removal
of equipment by
the applicant and at the reinstatement of appointments. In my
view all these orders were intended to be ancillary
to the orders
that possession be restored, and to give effect to the latter.
The fact that the applicant sought those orders
did not in the
circumstances, and in view of the fact that it was in the founding
affidavit made clear that the aim of the applicant
was only to have
the
status
quo ante
restored, change the true nature of this application to one that
could no longer be regarded as spoliatory in nature
[4]
.
The cases referred to by Mr Green are distinguishable, because the
applicant in this matter never went further than to make
out a case
for and to claim spoliatory relief, and it never claimed to be
entitled to possession on any other basis than having
been in
possession and having been unlawfully despoiled of that
possession
[5]
.
[16.]
The
applicant's case is that the spoliation complained of had occurred on
2 and 3 November 2016.
D.
Internet, computers, telephone systems
[17.]
I will
first deal with the issue concerning the computers and the access to
the internet and telephones.
[18.]
It is
common cause that the applicant made use of computers, telephones and
an internet connection of the second respondents.
[19.]
The case
made out in the founding affidavit as far as dispossession is
concerned was simply that the second respondent had on 2
November
terminated the internet connection and that it had removed the
computer hardware and printers, and also the applicant's
records
[6]
.
No specific allegations were made regarding dispossession of the
telephone system.
[20.]
The
respondents' version is that the internet had only been disconnected
for about an hour outside office hours, that by 08:00 on
2 November
it had been restored and that the disruption could not have had any
influence on the applicant in the performance of
its functions.
Reference was made to a data log, which according to the respondents
indicates the use of data, by means of internet
connection, on 2 and
3 November.
[21.]
It is
denied that the applicant's use of the telephone system had been
interfered with. Here too reference was made to an annexed
calls log,
as indicating the use of the system by the applicant's employees in
the relevant period.
[22.]
It is
denied that any computers or related equipment had been removed.
Mr Benson explained that routine maintenance had indeed
been done on
the computers on 2 November, but without removing them.
[23.]
In reply
the version of Mr Van Niekerk regarding the issue of the internet
access is noticeably different from the allegation in
the founding
affidavit that it had simply been terminated. It is now alleged
that the internet connection had been terminated
“
on
an intermittent and in a haphazard manner
".
It is claimed that the data log referred to by Mr Van Niekerk did not
show "
unrestricted
continuous access
"
during the relevant period.
[24.]
No other
records or logs have been produced for purposes of comparison and to
substantiate this adapted version of Mr Van Niekerk.
The same
applies to the telephone log referred to by the respondents.
[25.]
There is
nothing improbable or untenable about the respondents' version in
this regard and the applicant has most certainly not
in reply
succeeded in disproving it.
[26.]
Mr
Daniels suggested that something sinister must be read into the fact
that the alleged work on the computers and the temporary
disruption
of the internet connection took place more or less in the same period
as the spoliation of the applicant’s possession
of the wet
plant and of its equipment at the Remhoogte and NJK mines, but this
would obviously beg the question whether there indeed
had been a
spoliation, as alleged or at all, in respect of the wet plant and the
equipment at those mines.
[27.]
In fact,
the applicant suspiciously appears to have changed its version in an
attempt to explain the data log, which would otherwise
have been
irreconcilable with the applicant's case in founding. The
applicant never challenged the accuracy or authenticity
of the log or
its contents.
[28.]
It
follows that I am of the view that the applicant is not entitled to
the final relief it seeks in this regard.
[29.]
This
conclusion makes it unnecessary to decide whether the right to the
use of the internet connection (as opposed to the use of
the
computers) would in the present matter be capable of protection
through the
mandement
van spolie
remedy. It is difficult to discern from the allegations in the
founding affidavit on what basis the applicant would have
been
entitled to the availability of an internet connection. Mr Van
Niekerk stated that the applicant required the connection,
inter
alia
,
to comply with the agreements referred to. Insofar as this may
have suggested that the availability of the internet connection
had
been an implied or tacit term of one or more of those agreements, and
that the applicant accordingly had a contractual right
thereto, Mr
Green referred me to, amongst others, the case of
Telkom
SA Ltd v Xsinet (Pty) Ltd
[7]
.
In that matter it was held a contractual right to such a connection
is only a personal right and that an order compelling
restoration of
such a connection under those circumstances would amount to an order
compelling specific performance, which would
not be a competent order
in an application based only on the
mandement
.
[30.]
It was
never alleged, on behalf of the applicant, that its use of the
internet connection was based on anything other than contract,
or
that its right to the connection had not been only a personal right.
[31.]
On the
other hand, and on the assumption that the computers had been used to
gain access to the internet, it could conceivably be
argued that the
availability and use of the internet connection, and the incorporeal
right thereto, was an incident of the applicant’s
alleged joint
possession, control and use of the computers and of the building in
which those computers were, and that the termination
of the
connection would therefore have constituted an interference with the
applicant’s possession of the computers and building;
something
that would probably on the applicant’s version have been
capable of protection under the
mandement
van spolie
[8]
.
[32.]
The onus
to prove a right capable of protection, be it in respect of something
corporeal or incorporeal, including the precise nature
of that
right
[9]
,
is on the applicant
[10]
,
and on what the applicant has placed before this Court it would
probably not have discharged that onus. As I have however
already said, however, it is not necessary to come to a finding in
this regard in the circumstances.
E.
Wet Plant
[33.]
As
regards the wet plant at the Wouterspan mine, it appears that the
applicant had access to the Wouterspan mine area for purposes
of the
construction of the plant, and for purposes of performing its duties
in terms of a mining contract.
[34.]
The
issues to be decided are basically whether the applicant at the stage
of the alleged spoliation still had sufficient possession
of the
plant for the purposes of spoliation and, if so, whether that
possession had unlawfully been interfered with.
[35.]
I have
already made mention of the fact that the relief granted by Coetzee
AJ in this regard was restricted to section 2 of the
wet plant.
It is common cause that the wet plant would be constructed in three
sections, each consisting of two so-called
lines. It is also common
cause that the applicant had by 2 November 2016 completed the
construction of section 1 to at least the
stage where testing of that
section could be conducted, and that the applicant was at that stage
busy with the construction of
section 2.
[36.]
It is the
applicant’s case that possession of section 1 had, however, not
been handed over to the second respondent and that
the applicant had
also been in undisturbed possession of section 2, which it was busy
constructing.
[37.]
The
respondents' version is fundamentally different, especially as
regards section 1 of the plant. I do not know whether this is
why
Coetzee AJ restricted the interim relief regarding the wet plant to
section 2. The answering papers had, as already indicated,
not
been filed by then, but the respondents had as already mentioned at
the hearing on 4 November been represented by counsel.
[38.]
Be that
as it may, the respondents' version is that possession of both lines
of section 1 had since August 2016 been exclusively
with the second
respondent, who had been operating section 1 since then.
Printouts of so-called Whatsapp messages in which
Mr Van Niekerk
appeared to have congratulated the second respondent on the
successful operation of section 1, and which included
references to
the operation of section 1, were annexed to the answering affidavit.
Reference was made to records reflecting
the quantity of
diamondiferous gravel processed.
[39.]
In reply
Mr Van Niekerk persisted with the version that the applicant had as
at 2 November still been in control, and at the very
least in joint
possession with the second respondent, of section 1. In this
regard he relied heavily, if not exclusively,
on the fact that the
relevant contract requires testing and commissioning of any section
of the wet plant before it can be commercially
operated, and
maintained that that process had not been completed.
[40.]
In my
view the mere fact that the relevant contract required testing and
commissioning before any section is officially handed over
to the
second respondent would not really take the matter further. It
is one thing to say that the second respondent would
not
contractually have been entitled to operate and possess section 1 by
2 November, to the exclusion of the applicant, but the
issue here is
really whether the second respondent had not nevertheless
de
facto
done so.
[41.]
Mr Van
Niekerk referred to a letter dated 17 October 2016, in which the
applicant’s representative wanted to know when the
second
respondent wanted to operate section 1 and indicated that the second
respondent would be allowed to operate section 1 at
its own risk.
This could be argued to be indicative of the fact that the second
respondent had not by then operated section
1 yet, but it is also
susceptible to an interpretation that the second respondent was
merely being informed that it was running
section 1 at its own risk.
[42.]
In fact,
the contents of the letter as a whole in any event militate against
Mr Van Niekerk's argument that the second respondent
could not have
been in possession of section 1 by 2 November if the commissioning
had not been finalised by then. It indicated
a willingness to
let the second respondent operate and possess section 1 at a time
when the commissioning would according to Mr
Van Niekerk not have
been completed.
[43.]
Mr Van
Niekerk also relied on a letter dated 22 July 2016, by the engineer
Mr Crail. In it Mr Crail made reference to issues that
had to be
addressed "
before
a final sign off
"
of section 1. The contents of that letter do not advance the
case of the applicant. The letter does not exclude
the
possibility of the second respondent being in possession of section 1
before the final “
sign
off
”,
because it has not been claimed that so-called “
final
sign off
“ would have been a prerequisite for possession of section 1 by
the second respondent. It does not exclude the possibility
of
such a sign off having taken place since then. It also does not
exclude the possibility that the respondents had after
the date of
that letter
de
facto
,
even though possibly in breach of the relevant contract, started
operating section 1 and that they had still been doing so by
2
November. In fact, in the opening line of the letter Mr Crail
expressly approved "
the
first two production lines to go into operation as from the date of
this letter
",
and this approval does not seem to have been made subject to the
resolution of the issues referred to in the rest of the
letter, or to
a so-called “
sign
off
”.
[44.]
Mr Van
Niekerk’s statement, in the founding affidavit and formulated
in the present tense, that one of the functions of the
applicant at
the Wouterspan mine is to “
feed
”
the mine material into the wet plant for processing, could also be
argued to imply that the wet plant was already at least
partially in
operation, and more particularly section 1 of it.
[45.]
Mr Van
Niekerk submitted that the quantities of gravel processed were small,
which according to him would be indicative that the
processing was
part of only trial runs, and not of full operation and production,
but it is not clear what quantities would be
consonant with full
production.
[46.]
In his
Whatsapp message of 6 September 2016
[11]
Mr Van Niekerk stated
that the applicant could not simultaneously “
run
”
the plant and be responsible for construction, which could also be
interpreted to mean that at least part of the wet plant
had been in
operation by then.
[47.]
Once
again I do not find the respondents' version regarding the possession
of section 1 improbable, untenable or far-fetched.
If so it has
to be accepted, for purposes of this application, that the second
respondent had by 2 November 2016 been in possession
of section 1 of
the wet plant.
[48.]
It is so
that indications are that the applicant still had to attend to the
issues at section 1 which Mr Crail had referred to.
As will be
seen below, it has not however been shown that the applicant had been
doing so as at 2 November 2016 and that it had
accordingly on that
basis at least been in co-possession of section 1.
[49.]
As
regards section 2 the applicant could on 2 November 2016, as will be
seen below, at best for it have been exercising possession
of and
control over that section through 4 of its employees who were
construction workers (as opposed to employees involved in
the mining
activities of the applicant) and who were the only construction
workers of the normal compliment of 45 who had according
to even the
applicant been present at the general area of the Wouterspan mine on
2 November 2016. As will also be seen below
the applicant has
not though, even on its own allegations, shown that it had on 2
November 2016 through the presence or conduct
of those 4 employees
exercised possession of or control over section 2.
[50.]
As will
also appear in due course this issue is inextricably interwoven with
the issue whether the applicant had abandoned possession
of,
inter
alia
,
section 2 of the wet plant before the alleged events of 2 November
2016.
[51.]
There is
in any event also in my view a serious factual dispute as far as the
issue of dispossession of any of the sections of the
wet plant is
concerned.
[52.]
In
founding the applicant's case was that the wet plant had on 2
November 2016 been taken over and that the applicant's employees
had
been "
displaced
",
whatever that may mean. Mr Van Niekerk did not, however, claim
that the applicant's employees had on that day, or
on any other day,
been denied access to any part of the entire wet plant. This is
difficult to reconcile with the statement of
the applicant's
attorney, in two letters dated 2 November 2016
[12]
,
that the applicant had been locked out of and denied access to,
inter
alia
,
the entire Wouterspan mine, where the wet plant was after all being
constructed.
[53.]
Mr
Daniels, conceding this inconsistency and the fact that there had in
fact been no lock out, explained that the attorney’s
statement
may have been “
a
shot fired too early
”.
There is no explanation by the attorney himself and the only
inference that can be drawn is that the attorney
was, in stating
this, acting upon the instructions of somebody representing the
applicant.
[54.]
In the
founding affidavit Mr Van Niekerk made conflicting allegations about
who it was that had "
displaced
"
the applicant's employees and that had taken over the wet plant. In
paragraphs 63, 65 and 66 of the founding affidavit he
first stated
that it was the second respondent's employees that “
took
possession
”
of the wet plant, then that the third respondent's employees
"
commenced
to operate
"
the plant and “took it over” and later that it was
employees of the second respondent who had "
displaced
"
the applicant's personnel and who were "
unlawfully
commercially operating
"
the plant.
[55.]
The
repeated references to the “
operation
”
of the plant would suggest that the plant had at that stage been
operational, which would be irreconcilable with the applicant’s
case even in respect of section 1. The alleged displacement of
employees of the applicant in the operation of the plant,
would
furthermore suggest that they had at that stage been operating the
plant, as opposed to doing only construction work on it,
which would
be equally irreconcilable with the applicant’s case.
[56.]
There was
no clear allegation in the founding affidavit that the employees of
the applicant had been “
displaced
”
in the performance of their duties in the construction of the wet
plant, that the construction process had been taken over
or that they
were prevented from going on with the actual construction process.
[57.]
At best
for the applicant, as already mentioned, only 4 of its employees
could have been involved in the alleged “
displacement
”
as far as the construction of the wet plant is concerned, yet the
applicant has not taken the trouble to have one or more
of them
describe what they were doing when the “
displacement
”
occurred or how exactly the “
displacement
”
and the occurred and how the wet plant was “
hijacked
”.
In view of the allegation that they “
had
to restrain themselves not to become involved in a physical
confrontation with employees of the third respondent
”
they would have been in the ideal position to give at least some
detail of what had happened there.
[58.]
Again the
reference to the third respondent is confusing against the background
that the wet plant contract had been concluded between
the applicant
and the second respondent and in the context of allegations that it
had actually been the second respondent’s
employees who had
taken over the wet plant.
[59.]
By
contrast the case of the respondents in this regard is very clear.
They say there has been a dispute about payment and
that the
applicant had then threatened to stop construction on the wet plant.
This is borne out by a letter dated 30 September
2016, which
announced that the applicant was suspending construction.
[60.]
In reply
the applicant's explanation for this is that it had been the
beginning of a so-called pay weekend, during which the applicant's
employees did not work. The contents of the letter as a whole
militate against this explanation. It is categorically
stated
that the suspension of construction was because payment of salaries
had not been made and because materials had not been
supplied;
exactly the things that are the subject of the dispute between the
parties and which have nothing to do with the alleged
institution of
pay weekends.
[61.]
Mr Benson
went on to say that, although the applicant had then during the
following week resumed construction, it on 28 October
2016
finally stopped construction, left the site and abandoned possession
of the wet plant. There would therefore after that according
to the
respondents have been no possession of any section of the wet plant
by the applicant to be interfered with.
[62.]
Again the
respondents substantiated this by referring to a letter addressed to
them on behalf of the applicant on 27 October
2016. The
letter once again informed the respondents that construction would be
stopped at the end of that day.
[63.]
Here too
Mr Van Niekerk's explanation in reply is that the letter had been
intended to inform the respondents of the cessation of
construction
over the coming pay weekend, as construction had otherwise taken
place every day of the week. This explanation
is to some extent
borne out by the statement, in the letter, that work would be stopped
"
due
to the pay weekend
".
Mr Van Niekerk explained that pay weekends occurred regularly once a
month on the last weekend of the month, and were taken
as long
weekends.
[64.]
Viewed in
isolation these words may have fitted in with Mr Van Niekerk's
explanation, were it not for the fact that the letter did
not end
with the reference to a pay weekend. It went on to advance further
reasons why construction would be stopped, namely once
again
non-payment and the unavailability of materials. In fact, the
letter went even further, by unequivocally stating that
construction
would only resume on the following Tuesday "
if
there is materials on site for the staff to continue
".
This is exactly the crux of the dispute between the parties, the
respondents denying responsibility for the supply
of materials, and
for the advancing of funds to enable the applicant to obtain the
materials. The letter therefore made it
very clear that the
applicant would not resume construction if the required material was
not on site, and this is exactly what
the respondents say. No
material was supplied and the applicant never returned to resume
construction.
[65.]
In any
event, I find the applicant's explanation improbable to the extent
that, if the institution of pay weekends had been a regular
monthly
event, there would on the face of it have been no reason for the
applicant to address a letter to the respondents merely
to inform
them of this. On the probabilities the intention with the
letter must have been more than that.
[66.]
On 27
October 2016 Mr Glenn Norton, an erstwhile employee of the
respondents who had taken up employment with the applicant, sent
a
message to Mr Benson. It informed Mr Benson that the plant would be
closed “
at
the end of the shift
”,
and added “
Just
so you know
”.
It made no mention at all of a pay weekend. It included copies
of two letters that had the previous day been
addressed to the
respondents by the applicant’s attorneys. Those letters
dealt with the issues between the applicant
and the respondents, made
reference to liens allegedly held by the applicant and stated, quite
significantly, that the applicant
would not relinquish possession of
equipment at the Remhoogte and Saxendrift mines or of the wet plant
at the Wouterspan mine to
the respondents. It was followed by
another message from Mr Norton that read: “
Our
first shots in the war
”.
[67.]
These
messages make it very clear that at the very least the letter of 27
October 2016 was intended to convey much more than merely
informing
the respondents of an impending pay weekend. There is no way
that a message denoted as a first shot in a war could
be seen as a
friendly, or at least neutral, letter, simply conveying information
about a pay weekend. It would be naïve
in the extreme, in
view of the repeated references to liens and to possession in letters
apparently deliberately included in that
message, and against the
background of the dispute between the parties, not to interpret Mr
Norton’s messages as conveying
to the respondents that the
plant would be closed as a direct result of the dispute and that such
closure should not be interpreted
as the relinquishing of the
applicant’s alleged liens.
[68.]
The fact
that the respondents on 2 November 2016 had to remove a truck which
the applicant had left in a position where it obstructed
the
operation of section 1 of the wet plant, strengthens the respondents'
version. It is a very strong indication that section
1 had at
that stage been in operation, otherwise there would not have been any
reason to leave the vehicle exactly where it would
prevent operation
of section 1.
[69.]
According
to the respondents only 3 employees of the applicant who had
previously been involved in the construction of the wet plant
returned to the Wouterspan mine on 2 November 2016, but have not
since then been doing any work at all on the wet plant.
According to Mr Van Niekerk it was actually 4 construction workers
that returned to the Wouterspan mine area on 2 November 2016
and all
he says in reply is that the employees could not “
do
any physical work
”
because of the respondents’ spoliation. He does not
elaborate or explain this. It is not clear why the
respondents’
operation of section 1 would have prevented those employees from
resuming construction of section 2 of the wet
plant.
[70.]
It has in
any event never been the applicant’s case that there had been
any spoliation at the plant before 17:00 on 2 November,
and even
on the applicant’s case it can accordingly simply not be
correct to say that the 4 employees had been prevented
from
exercising possession of at least section 2 of the wet plant.
[71.]
No case
has therefore, as already mentioned, been made out that the applicant
had through these employees exercised possession of
the wet plant on
2 November, and at the time that they were allegedly “
displaced
”
by the respondents’ employees.
[72.]
Mr Van
Niekerk offers no explanation, in any event, for the fact that the
full complement of 45 employees who had been involved
in the
construction of the wet plant did not return.
[73.]
There are
in my view on the evidence indications that the applicant had indeed
by 28 October 2016 abandoned any measure of possession
which it may
earlier have enjoyed in respect of the wet plant. At the very
least though the respondents' version in this
regard is far from
improbable, untenable or far-fetched, and on the
Plascon-Evans
principle it therefore had to be accepted for purposes of this
particular factual dispute.
[74.]
As far as
the allegation of a displacement of the applicant's personnel is
concerned Mr Benson's denial is, as far as the operation
of section 1
is concerned, substantiated by the very logical explanation that the
applicant's employees had never held appointments
to operate the
plant, only to construct it, and the construction of section 1 had by
then been completed.
[75.]
In the
circumstances it has not been shown that the applicant was in
possession of even section 2 of the wet plant at the relevant
time on
2 November and no case has been made out that any dispossession
occurred on 2 November in respect of either of the sections
of the
wet plant.
[76.]
There are
in fact indications that even the mining activities had been
abandoned, because the undisputed evidence is that on 2 November
2016
the only mining activities conducted by the applicant consisted of
the construction of so-called woodrows in the general mining
area of
the Wouterspan mine by means of a single bulldozer; this while the
applicant’s mining activities had until then been
conducted by
no less than 126 employees.
[77.]
I am
therefore of the view that the applicant is not entitled to the
relief, in its final form, that is claimed in respect of the
wet
plant in paragraphs 3.3 to 3.6 of the notice of motion.
F.
Equipment
[78.]
The
relief sought in paragraphs 3.7 and 3.8 of the notice of motion
concerned the issue of mining equipment and its possession,
excluding
the equipment at the NJK mine, which is the subject of separate
prayers in the notice of motion and of separate orders
made by
Coetzee AJ.
[79.]
It
appeared that the applicant had been in possession of mining and
earthmoving equipment which it used to perform its mining duties
at
the Wouterspan mine. Some of it belonged to the applicant, but some
belonged to the respondents. The latter equipment had been
made
available to the applicant on the basis of a sale agreement in terms
of which the applicant was to purchase that equipment
and the
purchase price would be set off against what was owing to the
applicant for the materials used in the construction of the
wet
plant, and only upon completion of the wet plant.
[80.]
The
applicant in my view did not in its founding affidavit make out any
case at all that the respondents had dispossessed it of
any such
equipment. As regards equipment at the Wouterspan mine, I have
already referred to the absence of even an allegation
that access to
that equipment was denied.
[81.]
In
founding Mr Van Niekerk made the vague allegation that the third
respondent had “
placed
”
its employees on the mining equipment. He gave no particulars
as to exactly when this occurred, or as to how it happened
if the
applicant’s employees had at the time used and been in
possession of that equipment, unless of course it had been
possible
to place them on the equipment precisely because the applicant’s
employees had still been absent, after having abandoned
the site on
28 October 2016.
[82.]
On the
applicant’s own version the sale contract, in terms of which it
had on a provisional basis been placed in possession
of certain
equipment, lapsed due to the non-fulfillment of a suspensive
condition. It appears, however, that when the applicant
was
requested to surrender possession of that equipment, it refused to do
so, which would obviously imply that it had at that stage
still been
in possession of that equipment. Its representative then
furthermore took possession of the duplicate keys of
that equipment.
[83.]
The
respondents denied having dispossessed the applicant of any equipment
on any of the days on which the spoliation had allegedly
taken place.
[84.]
The
respondents' admission that, in the absence of the applicant,
equipment belonging to the second respondent was used, by means
of
duplicate keys, to carry on with the mining there and with the
operation of section 1 of the plant, does not assist the applicant.
The possession of duplicate keys would not be consonant with
exclusive possession on the part of the applicant and there is in
any
event no evidence at all that the temporary use of those vehicles had
in any way despoiled the applicant’s possession
thereof.
[85.]
In his
replying affidavit Mr Van Niekerk interpreted this as an admission of
dispossession. It must however be kept in mind
that it is the
undisputed evidence of Mr Benson that the use of that equipment was
terminated when the applicant took possession
of those duplicate
keys. Insofar as the use of the equipment may at the time
technically have amounted to dispossession and
spoliation, it
apparently stopped there and then and clearly could not have been the
cause of the present application.
[86.]
It
appears that the applicant has, on the strength of the interim order,
removed all of those vehicles and machinery from the Wouterspan
mine
area. That in my view is extremely difficult to reconcile with the
supposed purpose of the urgent spoliation application in
the
circumstances of the present matter, namely to regain possession so
that the applicant's work at the Wouterspan mine can go
on. It would,
however, fit in with a scenario where the applicant had in any event
earlier ceased all construction and mining activities
at the
Wouterspan mine. It could also be argued to be suggestive of some
ulterior motive which does not really have anything to
do with the
actual possession, use and purpose of this equipment. As far as
the respondents’ part of this equipment
is concerned, the only
possible inference would be that this conduct was intended to deprive
them of the use of equipment in circumstances
where the applicant
itself was in any event not going to use it as before.
[87.]
The
applicant also had equipment at the Remhoogte mine. It
complained that its access to and possession of that equipment
was
disturbed when two of its employees, Mr Martin Van Niekerk and Mr
Jakes Aspeling, were on 2 November 2016 refused permission
to
work on equipment at the mine and escorted out of the area by
security personnel.
[88.]
The
respondents' version that the applicant's access to and possession of
that equipment had always been controlled and subject
to security
measures, has not really been challenged in reply, neither has the
explanation that permission to work on the equipment
had been refused
because there had been no safety officer present, which according to
the undisputed version of the respondents
had been a requirement.
Insofar as the applicant's access to and possession of its equipment
at the Remhoogte mine had always
been subject to this type of
control, and even if it is for the moment assumed
[13]
that the access that
the applicant had enjoyed constituted possession for purposes of the
mandement
,
the actions of the security personnel there on 2 November 2016 would
not have disturbed the
status
quo ante
.
G.
NJK
[89.]
It is
common cause that the applicant had enjoyed access to the NJK mine to
remove its equipment, but that this access had at all
times been
subject to security measures and to permission.
[90.]
It is
also common cause that on 3 November 2016 employees of the applicant
who wanted to remove a bulldozer from the NJK mine on
a low bed
vehicle were refused permission to do so. This is the only
incident upon which the applicant's allegation of spoliation
at the
NJK mine is based.
[91.]
The
respondents say that permission to remove the bulldozer was refused
because of the absence of a safety officer, as according
to their
undisputed version was required by law. This explanation was
not challenged in reply, and it must be assumed that
this was exactly
the type of control that the applicant's access to and possession of
its equipment at the NJK mine had always
been subject to. This
would mean that the type and extent of possession that the applicant
had enjoyed at the NJK mine
[14]
had not been disturbed
on 3 November, or put another way that the
status
quo ante
as far as the NJK mine and the equipment there were concerned, was
not disturbed by the actions of the security personnel on that
day.
H.
Access
[92.]
As far as
the issue of access is concerned the applicant claimed, and was on an
interim basis granted, orders:
92.1
that would restore its possession of and access to mining equipment
at
the Remhoogte, Saxendrift and Wouterspan mines; and
92.
that its employees be granted "
free
and undisturbed
"
access to offices, warehouses, storerooms, "
and
all facilities
"
at the said three mines and at the NJK mine, to which the applicant
's employees had according to the wording of the order
enjoyed "
free
and undisturbed
"
access before 2 November 2016.
[93.]
I have
already dealt with the alleged spoliation of the possession of
equipment. In the light of the fact that the applicant at
that stage
sought final relief, and in view of what I have already said, I am
not prepared to find that the applicant was dispossessed
of any
equipment.
[94.]
As would
already have been clear it furthermore transpired, mostly from the
answering affidavit and the applicant's subsequent concessions
and/or
failure to challenge allegations, that the applicant had in fact not
prior to 2 November 2016 enjoyed free and undisturbed
access to
all of these mines. It is abundantly clear that its access to
at the very least the Remhoogte and NJK mines had
been restricted to
not only controlled access, but furthermore to only such access as
was necessary to work on or to remove equipment.
Equipment
belonging to the respondents could furthermore only be removed with
the respondents' permission.
[95.]
At all
the mines the applicant could in any event always only enter with the
permission of the security personnel.
[96.]
The
applicant has in my view not shown, for purposes of final relief,
that the access that it had enjoyed had been unlawfully disturbed
at
any of the mines.
[97.]
I have
already dealt with the events at the Remhoogte mine. The
problem there was in any event not so much that access to
the mine
area and to the applicant’s equipment was concerned, but rather
that it was refused permission to remove its equipment.
[98.]
A denial
of access has in fact not even as much as been alleged in the cases
of the Saxendrift and Wouterspan mines. It has
also not been
alleged that the applicant was refused access to offices, stores or
warehouses.
[99.]
The
catch-all phrase "
all
facilities
"
would in any event have been far too wide to be included in the
relief in the circumstances of this matter.
I.
Appointments
[100.]
It is
common cause that the statutory appointments that some of the
applicant's employees held in terms of the
Mine
Health and Safety Act
[15]
and/or the
Occupational
Health and Safety Act
[16]
have been terminated.
[101.]
The
respondents’ explanation for this is that by law the
appointments had to be terminated after the particular persons had
been absent from the site for more than three days. Reference was not
made to the specific statutory provisions in this regard,
but the
applicant has not denied that this was indeed the legal position.
[102.]
I realise
that there is a dispute about whether the particular employees of the
applicant had in fact been absent, but I have already
explained why
the respondents' version in this regard is accepted. If it is
indeed correct that the respondents had by law
under those
circumstances been obliged to terminate the appointments, that may
have constituted a defense
[17]
.
[103.]
It is,
however, necessary to first consider whether the applicant had in any
event made out a case that the termination of the appointments
had
amounted to dispossession for purposes of spoliatory relief.
The appointments would not have been movable or immovable
property,
as is usually the case in spoliation applications.
Quasi
possession of rights have however in our law in certain cases been
recognised as sufficient possession for purposes of spoliatory
claims
[18]
.
[104.]
The
applicant did not furnish any particulars at all of the nature of the
right that its employees had enjoyed through such appointments.
In the founding affidavit, where the applicant had to make out its
case in this regard, it was only stated that the termination
of the
appointments had "
the
effect that none of the employees of the applicant
(could)
lawfully
perform their duties
".
It was not explained why the employees would need the appointments to
"
lawfully
"
perform their duties, and no reference at all was made to any such
legal or statutory requirement. In the circumstances
the
applicant failed to make out a case that its employees had actually
exercised, for purposes of a spoliatory claim, whatever
right they
had derived from those appointments. In the words of Hattingh J
in
Plaatjie
v Olivier
[19]
at 159H : "
What
is protected by the remedy is the actual performance of acts which,
if lawfully performed, would constitute the exercise of
a right
".
The possession would in other words “(have arisen)
from
the exercise or use
”
of the appointments, and from the deriving of some benefit therefrom,
which the applicant had not shown
[20]
.
[105.]
Even if
it is, however, to be assumed for the moment that the applicant's
case was that its employees had exercised their rights
in terms of
the appointments by performing their duties in the construction of
the plant or in the mining activities at the Wouterspan
mine, that
would have been contradicted by the respondents. Their version is, in
the first place, that only a few of the
applicant's employees
held the appointments that were cancelled, which would in itself
necessarily imply that the appointments
could not have been a
requirement for the performance by all of the applicant's employees
of their normal duties as employees of
the applicant.
[106.]
Secondly
the Mr Benson has in any event stated categorically that the
cancellation did not have the effect that any of the employees
of the
applicant would not have been able to lawfully perform their duties
as employees of the applicant. The appointments
were according
to them given to "
a
handful of key individuals
",
and only had the effect of placing upon them certain responsibilities
in connection with health and safety issues.
As long as anybody
else who had such an appointment was present, the employees of the
applicant could according to the respondents
carry on with their
normal duties. It would not have mattered whether those
appointees were employees of the applicant or
not. All that was
required for the applicant's employees to be able to perform their
normal duties, was that there had to
be supervision by a person
appointed for health and safety purposes, and that person did not
have to be an employee of the applicant.
[107.]
This
explanation of the need for and the role of appointees have not been
refuted by the applicant in reply. In my view the applicant
has in
the circumstances not shown that the cancellation of the appointments
resulted in dispossession for the purposes of spoliation.
J.
Conclusion
[108.]
It
follows that the application has to be dismissed. Although the
orders were only sought and interim granted against the
second and
third respondents, the costs order did not distinguish between the
four respondents. The first and fourth respondents
were also
implicated by the applicant in the founding affidavit.
[109.]
All four
respondents were therefore entitled to oppose the application and
there is, for purposes of the costs order, no need to
differentiate
between them.
[110.]
Mr
Daniels made much of the fact that copies of the various agreements
were annexed to the answering affidavit. In view of
the fact
that the applicant itself made fairly extensive reference to the
contracts and their implications,
inter
alia
regarding the requirements for handover of the plant for operation,
the respondents should not be penalised for this.
K.
Costs
[111.]
There is
no reason why costs should not follow the result.
[112.]
There is
also no reason why the same should not apply to the costs of the
proceedings of 4 November 2016.
[113.]
Mr Green
did not pursue the argument foreshadowed in his heads of argument
that costs should be awarded on a punitive scale and
there is
therefore no need to consider this.
[114.]
Both
counsel were agreed that the costs occasioned by the postponement of
16 November 2016 should be costs in the application.
[115.]
In the
premises the following orders are made:
1.
THE
APPLICATION IS DISMISSED WITH COSTS, INCLUDING THE COSTS OF 4 AND 16
NOVEMBER 2016.
2.
INSOFAR
AS IT MAY BE NECESSARY THE INTERIM ORDERS OF 7 NOVEMBER 2016 ARE
DISCHARGED.
______________________
C J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
For the
Applicant:
ADV P DANIELS SC
(Van
De Wall & Partners obo Molenaar & Griffiths Inc.)
For the
Respondents: ADV IP
GREEN SC
(Engelsman
Magabane Inc. obo Falcon & Hume Inc.)
[1]
ABSA Bank Ltd v Collier
2015 (4) SA 364
(WCC) para [39];
Compare too
Andalis v Bartmann
2014 JDR 0508 (GSJ) para [5];
Dotcom Trading 849 CC v Rand Water
2015 JDR 0659 (GP) para
[20];
Microsure (Pty) Ltd and Others v Net 1 Applied Technologies
South Africa Ltd
2010 (2) SA 59
(N) para [4]
[2]
See
South West Africa National Union v Tjozongoro and Others
1985 (1) SA 376
(SWA) at 381 D-E
[3]
Compare
Unlawful Occupiers, School Site v City of Johannesburg
2005 (4) SA 199 (SCA)
[4]
Compare
Jones v Claremont Municipality
(1908) 25 SC 651
;
Dalby v Soffiantini
1934 EDL 100
;
Zinman v Muller
1956
(3) SA 8
(T);
Sebastian and Others v Malelane Irrigation Board
1950 (2) SA 690
(T);
Fredericks and Another v Stellenbosch
Divisional Council
1977 (3) SA 113
(C));
Vena and Another v
George Municipality
1987 (4) SA 29
(C
)
;
Malan and
Another v Green Valley Farm Portion 7 Holt Hill 434 CC and Others
2007 (5) SA 114
(E) para [24];
Impala Water Users Association v
Lourens NO and Others
2008 (2) SA 495 (SCA)
[5]
Compare
Stocks Housing Cape (Pty) Ltd v Chief Executive Director,
Department of Education and Culture Services, and Others
1996
(4) SA 231
(C) at 244B – 245C;
Street Pole Ads Durban (Pty)
Ltd and Another v Ethekweni Municipality
[2008] ZAGPHC 33
;
2008 (5) SA 290
(SCA)
para [15];
Minister of Agriculture and Agricultural Development
and Others v Segopolo and Others
1992 (3) SA 967
(T) at 971
[6]
Although this was not in so many words said in the founding
affidavit I assume that those records had been kept on the
computers.
[7]
2003 (5) SA 309 (SCA)
[8]
Compare
Impala Water Users Association v Lourens NO and Others,
supra
;
City of Cape Town v Strumpher
2012 (4) SA 207
(SCA)
[9]
See
Firstrand Ltd t/a Rand Merchant Bank and Another v Scholtz NO
and Others
2008 (2) SA 503
(SCA) para [13];
ATM Solutions
(Pty) Ltd v Okru Handelaars CC and another
[2009] 2 All SA 1
(SCA)
[10]
See
Microsure (Pty) Ltd and Others v Net 1 Applied Technologies
South Africa Ltd, supra
, para [17]
[11]
Annexure RW18.2, p 325
[12]
Annexures FA17 and FA18 to the founding affidavit.
[13]
But not decided; Compare
De Beer v Zimbali Estates Management
Association (Pty) Ltd and Another
2007 (3) SA 254 (N)
[14]
And once again on the assumption only that it would have constituted
proper possession for purposes of the
mandement
.
[15]
29 of 1996
[16]
85 of 1993
[17]
Compare
Minister of Finance v Ramos
1998 (4) SA 1096 (C)
[18]
See
Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi
1989 (1)
SA 508
(A);
Silberberg &Schoeman's The Law of Property
,
5th edition, Badenhorst
et al
, pp296-300
[19]
1993 (2) SA 156 (O)
[20]
Gowrie Mews Investments CC v Calicom Trading 54 (Pty) Ltd and
Others
2013 (1) SA 239
(KZD) para [10]