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[2016] ZAGPPHC 697
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Arise General Construction CC Reg CK2001/031812/23 v South African National Parks (79889/20165) [2016] ZAGPPHC 697 (12 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 79889/20165
DATE:
12 AUGUST 2016
In
the matter between:
ARISE
GENERAL CONSTRUCTION CC
REG
CK2001/031812/23
....................................................................................................
APPLICANT
And
SOUTH
AFRICAN NATIONAL
PARKS
.....................................................................
RES
PONOENT
JUDGMENT
RAULINGA
J
This
is an appeal against the judgment in which the applicant's urgent
application was dismissed with costs.
[1]
The application is based on the
mandament
van spolie
under circumstances where the applicant is building
contractor and alleges to have been deprived of its possession of a
building
site within the Kruger National Park, where it was in the
process of executing the a building contract for the construction of
certain student accommodation, student boma, security, guard house,
supervisor, and manager accommodation (hereinafter referred
to as
“the works”) at Phambeni Gate-Phambeni School (herein
referred to as (“the arte").
[2]
The applicant is a building and construction enterprise
founded in 2001. The respondent is the custodian of South African
National
Parks, including the Kruger National Park. The site is
situated in the Kruger National Park, dose to the Phambeni Gate.
[3]
After the respondent had decided to improve its facilities
pertaining to student accommodation and the general provisions for an
educational facility to be established on the site, the applicant and
the respondent concluded the principal building agreement,
JBCC
series 2000 (hereinafter referred to as "the agreement") on
4 December 2013. A copy of the applicants’ founding
affidavit,
marked Annexure ‘A”.
[4]
It is contended by the respondent that the agreement was
cancelled on the basis that the applicant failed to comply with the
material
terms and conditions of the agreement; which is denied by
the agreement.
[5]
As already stated above, the works consist of the construction
of student accommodation, student boma, security, manager's
accommodation
and guard house [clause 42.2.1]. Possession of the site
was given to the applicant on 11 November 2013 [clause 42.2.25]. The
date
for practical completion wad 11 April 2014 [clause 24.3.1 and
42.2.7]. The accepted contract sum, including VAT, is R8443061 .14.
[6]
It was further agreed between the parties that;
6.1.
“In the event
that the applicant fails or omits to achieve the practical completion
by 11 April 2014, the respondent is entitled
to enforce a penalty in
the amount of R1000, 00 per day [clause 30.1 and 42.2.7],
6.2.
On being given
possession of the site the applicant shall commence with the works
within the period started in the schedule and
proceed with the due
skill, diligence, regularity and expedition and bring the works to:
-
Practical completion on or before 11 April 2014;
-
Works completion in terms of the provisions of clause
25 of the agreement; and
-
Final completion in terms of the provisions of clause
26 of the agreement [clause 153J.
6.3.
in the event that
the respondent considers cancelling the agreement, the principal
agent shall be Instructed to notify the applicant
of such default in
accordance with, the provisions of clause 30.1 and the respondent or
the principal agent may give notice of
such cancellation; should the
applicant remain in default for 10 working days after the date of
issue of such a notice of default
[clause 36.3]
6.4.
in the event that
the agreement is cancelled the employment of the applicant shall be
cancelled and execution of the work shall
cease. The applicant shall
furthermore vacate the site subject lo t*
1
® provisions
of clause 36.5.6.1 of the
agreement [clause 36.5.1]; and
6.5.
The respondent may
use the applicant’s materials and goods, temporary buildings,
plant and machinery on the site for proceeding
with the works [clause
36.5.5]".
[7]
The applicant avers that it put shoulder to the wheel and in
feet proceeded with the works due to skill, diligence and expedition
as it had done before. The applicant then sketches the sequence of
events that led to what happened on 11 September 2015 when the
applicant's employees were informed that the agreement had been
cancelled.
[8]
The respondent paints a different picture, in that it contends
that from the outset the applicant experienced difficulties in that
the project and the works were delayed unreasonably. Further, that it
soon became evident that the applicant did not have the basic
skill,
experience, know-how, expertise and financial ability to achieve
practical completion by 11 April 2014.
[9]
It is also the contention of the respondent that when it
realised the applicant was unable to complete the work on time, it
did
everything within its ability to accommodate the applicant and
granted various indulgences to the applicant in order to enable the
applicant to complete and to finalise the worics at the site. In
support of its argument, the respondent annexes correspondences
dating from the 8 December 2014 and leading to the events of 11
September 2015. In all the letters directed to the applicant, the
respondent referred to the relevant clauses In the principal building
agreement. Chief amongst these is a letter dated 28 July
2015
Annexure “P" in which the following was placed on record:
“
By failing to achieve practical completion of
the buildings on 31 July 2015 we will act in terms of the JBCC
principal Building
Agreement - clause 17.4 and reserve our rights to
act in terms of clause 36 of the JBCC principal Building Agreement.
[10]
importantly, is the final letter of demand dated 3 August 2015
in which is recorded the following:
‘
In terms of clause 15.3 you were to bring the
works to practical completion with due skill, diligence, regularity
and expedition
on 31 July 2015 as agreed.We hereby wish to notify you
in terms of clause 36.2 of the JBCC principal Building Agreement that
you
are in default of your contractual obligations and that it is our
intention to cancel in terms of clause 36.1.
In terms of clause 3.2 of the JBCC Principal Building
Agreement we hereby wish to inform you that should you remain in
default for
ten (10) working days after the (Me of this notice, we
reserve our rights to terminate the agreement without prejudice to
any other
rights we may have in terms of the JBCC Principal Agreement
Your
urgent attention is awaited.
1
attached hereto a copy of my letter dated 3 August 2015 confirming
same, marked Annexure “R1”.
[11]
The agreed practical completion date was 18 August 2015 as
agreed between the parties. Despite numerous letters directed to the
applicant including letter dated 31 August 2015, 4 September 2015 and
10 September 2015the applicant failed to complete the works.
Consequently, the Principal Building Agreement was cancelled.
[12]
The applicant submits that it didn’t voluntarily vacate
the site, as is contended by the respondent Further, that no dispute
of fact arises on this Issue and if any, it is more perceived than
real.
[14] As a consequence, the applicant opted to act in
terms of the dicta in Room Hire Co.(PTY) Ltd v Jeppe Street Mansions
(PTY)
Ltd 1948 (3) 11SS (T) at 1163 and called Mr. Abram Mogale to
adduce oral evidence on its behalf.
[15] In paragraph 8.3 of its heads of argument, the
applicant submitted that the respondent's deponent, Mr. Vissagie, was
not present
and does not profess to have any personal knowledge of
the circumstances of the applicant's employee’s departure from
the
site on 11 September 2015. However, in paragraph 8.31 of the
Founding affidavit , it is evident that Mr. Vissagie, Mr. Cairlm and
the legal representative of the applicant Mr. Abram Mogale were
present at the meeting of 11 September 2015 when all the building
and
the services where inspected and everybody agreed that the practical
completion has not been achieved. At the end, the applicant's
site
agent, Mr. Mogale, was instructed to cease all works and to evacuate
the site on the same day. Further in paragraph 4.6 of
its replying
affidavit the applicant conceded that (sic) deponent, Mr. Vissagie
was indeed on site with other persons on Friday
11 September 201S.
This in my view is a contradiction in terms by the
applicant and also contradicts the oral evidence of Mr. Mogale. The
oral evidence
is therefore rendered futile and the matter must be
decided on affidavits.
[16] The
mandate
van spolie
is directed at restoring possession to a party
which has been unlawfully dispossessed. It is a robust remedy
directed at restoring
the status
quo
ante, irrespective of the merits of any underlying Contest concerning
entitlement to possession of the thing concerned and the
unlawful
despoilment thereof are all that an applicant for
mandament
van spolie
has to show. (Deprivation is unlawful if it takes
place without due process of law, or without a special legal right to
oust the
possessor). The underlying principle Is expressed in the
maximum
spottatus ante omnia
mstituendus est.
The fundamental purpose of the remedy is to
serve as a tool for promoting the rule of law and as a disincentive
against self-help.
It is available both in respect of the
dispossession of corporeal property and incorporeal property. In the
case of incorporeal
property it is the possession of the right
concerned that is affected - a concept described as
quasi
-
possession to distinguish it from physical possession. The
manifsstatton of the dispossession of the right in such a case will
always
entail the taking away of an externally demonstrable
incidence, such as a use, arising from or bound up in the right
concerned.
Van Wiyn and Others NNO v Fleurbarx Farm (PTY) Ltd 2013
(8) 8A 521 (WCC) at 522 - 523 para HI- See also Schubart Parfc
Residents'
Association and Others v City of Tshwane Metropolitan
Maniclpalty and Another 2013 (1) 323 (CC) paras 23 - 24 and Bon
Quelle (Edms)
Bpk v Munislpallttot Van Otavf 19B9 (
1
)
SA508 (
A
) at511
I-512B.
[17]
In the Van Rhyn case (supna) the matter pertained to
servitutal access where the applicants caused one of the respondent's
directors
to be advised that they would be dosing the gravel road
across their property so as to enable, amongst other things, the area
between
the main house on the property and a nearby dam to be
landscaped as part of a garden extension. The respondent was advised
that
an alternative access road would be made available. The
appellants thereafter constructed the alternative access road at a
cost
of nearly R3 million. Its availability coincided more or less
with the closure of the gravel road. The remedy which the respondent
claimed in Ks application for
anti-spoliatory
relief (a
mandament van spolie)
was on its face consistent with what might have to be expected had it
been asserting a defined right of servitutal access.
[18]
The court in Van Rhyn emphasized the need to identify the
right claimed. The court intimidating that In a case in which the
applicant
for anti
-spoliatory
relief seeks restoration of right of use, the nature of the alleged
right upon which the use is founded must be identifiable on
toe
papers because it is the subject-matter of the alleged dispossession
if the conduct of the alleged disposer does not in law
infringe or
derogate from the alleged right. Thus the nature of the right can be
material for determining whether the conduct complained
about by the
applicant for a mandament
van
spolie
amounts to spoliation. Therefore, the requirements are
that the
spolia
tu
s
prove possession of a kind which warrants the protection accorded by
the remedy and that he was unlawfully outsted.
[19]
In the matter of Bon Quelle (Edme) Bpk
(supra),
the Appellate Division determined that the municipality was entitled
ante ammica to have the status
quo
ante
restored on the the municipality did indeed have a
servitutal right to the water supply.
[20]
In Firstrand Bank Ltd t/a Rand Marcant Bank & Another v
Scholtz NO & Others
2008 (2) SA 503
(SCA) the following basis for
the need for the characterisation of the right in an application for
mandament van spolie was stated:
The
mandament van spolie does net have
a
"catchall-
function’ to protect the quasi-possessio of all kinds of fights
irrespective of their nature. In cases such
as where a purported
servitude is concerned the mandamant is obviously the appropriate
remedy, but not where contractual rights
ana
in
dispute or specific performance of contractual obligations is
claimed: its purpose is the protection of quasi-possessio of certain
rights. It follows that the nature of the professed right
;
even
if it need not be proved, must be determined or the right
characterized to establish whether its quasbpossessio is deserving
of
protection by the mandament”.
[21]
Thus the nature of the right can be material for determining
whether the conduct complained about by the applicant for a
mandament
van spolie
amounts to spoliation. Van Ryhn (supra) at page 526
E. This is an incident of the requirements that the applicant must
prove ‘possession
of a kind which warrants the protection
accorded by the remedy, and that he was unlawfully ousted”.
Yefco v Qama
1973 (4) SA 735
(A) at paga 739-G-H.
[22]
In my view the applicant has failed to make a sufficient case
for the relief which it applies for. The applicant's "right''
to
site has been legally and lawfully terminated and cancelled for the
following reasons.
[23] The applicant has failed and omitted to comply
with the contractual obligation and responsibilities insofar as the
practical
completion of the works is concerned. Various indulgences
were granted to the applicant to complete the works, but to no avail.
The following letters directed to the applicant by the respondent
bear witness to this; Letters dated 10 December 2015, 28 July
2015,
31 August 2015, 4 September 2015 and 10 September 2015. The applicant
is therefore not entitled to rely on the mandament
van spol
ie.
[24] In the result the application is dismissed with
costs on party and party scale.
TJ
RAULINGA
JUDGE
OF THE HIGH COURT
Attorney
for the Applicant : Coetzerand Partners attorneys
Couneel
forthe Applicant : Adv. Ellis SC
Attomeyfor
the Respondent : Day attorneys Inc.
Counsel
for the Respondent : Adv. FW Botes SC
Date
of Judgment 12 August 2016