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[2015] ZAGPPHC 166
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Dotcom Trading 849 CC v Rand Water (16980/15) [2015] ZAGPPHC 166 (24 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 16980/15
Date:
24 March 2015
Not
reportable
Not
of interest to other judges
In
the matter between:
DOTCOM
TRADING 849
CC
.............................................................................................
Applicant
and
RAND
WATER
...................................................................................................................
Respondent
JUDGMENT
POTTERILL
J
[1]
The applicant is on an urgent basis applying to the court to:
“
Restore
the respondent’s possession of the respondent’s
Panfontein sludge disposal site ante omnia by allowing the applicant
and its contractors undisturbed access to the site for the purpose of
conducting its business” (prayer 2).”
[2]
The applicant set out on 13 December 2012 it concluded a written
memorandum of agreement with the respondent. The essence
of the
agreement is that the respondent granted the applicant the right to
remove waterworks sludge from designated drying beds
and settling
ponds at the Panfontein sludge disposal site.
[3]
Although the contract was concluded on 13 December 2012 the applicant
was in peaceful and undisturbed possession, or at the
very least
joint possession, of the respondent’s Panfontein site from
October 2014. To this end the applicant in order
to conduct
this business in terms of the agreement maintained a yard on the site
for the applicant’s exclusive use, which
yard is a demarcated
area of a 100 metres x 100 metres fenced in with a diamond mesh fence
of approximately 1.6 metre high.
In the yard there is one
shipping container and one caravan type container on wheels
containing tools, spares and loose equipment
used for maintenance and
repair of the erf moving and agricultural equipment. Outside
the yard there is a 12 metre x 3 metre
prefabricated office block,
comprising a kitchenette, an office compartment and two staff
toilets. On site is also held the
following equipment, eight
front load enders, three Findley power mobile screens, four tractors,
one mobile crusher, two agricultural
disc type implements, one fixed
on-site diesel tank with diesel, six semi-dismantled conveyer units
and two semi-fixed weigh bridges.
There is also a permanent staff
complement on the site.
[4]
On 18 February 2015 the applicant received a letter from the
respondent’s attorney informing them that the memorandum
of
agreement with Benmarck Distributions CC trading as Industrial Lime
Suppliers was terminated on 15 October 2014. The applicant
was
accordingly instructed to cease from entering Rand Water’s
premises or removing sludge water works from Rand Water’s
removal site with immediate effect. On 19 February 2015 the
security guards guarding the entrance to Panfontein blocked all
access to all persons other than their own employees. It was
averred that the respondent thus took the law into their hands
and
unlawfully despoiled the applicant.
[5]
It was averred that the urgency in the application lies therein that
the movables on site are at risk as they are particularly
high sought
after items and are exposed to exceptional risk of theft or
destruction or tampering. The total value of the
movables is in
the order of R15 million. Furthermore the applicant’s
entire business is at stake in that the applicant’s
business
has been brought to a grinding halt with devastating financial
consequences. Furthermore the power source of the
weigh bridge
must be disconnected in bad weather and there is no-one to attend
thereto.
[6]
The applicant’s reason for not immediately launching this
application the moment it was despoiled is explained by the
fact that
its attorney of record and the attorneys known for the respondent
were already engaged in other litigation and the hope
was fostered
that sense would prevail and the applicant be allowed to take
repossession of the site and its business through negotiation.
In any event spoliation proceedings are by their very nature urgent.
[7]
The respondent denied that the applicant had possession of the site.
In the founding affidavit the applicant relied on
an agreement
concluded on 13 December 2012 to commence on 1 January 2013, yet it
on its own version only took possession 22 months
later being October
2014. The applicant did not explain as to how and why only 22
months later did the applicant come to
possess. This only
surfaced in the replying affidavit where the applicant now averred
that there was a cession of the Benmarck
contract. The Benmarck
contract was fixed and came to an end by the effluxion of time on 17
January 2015. The applicant
as a cessionary could not acquire
more rights than the cedent i.e. claim further possession to the site
if the contract had lapsed.
[8]
Furthermore other parties were by then in possession and were
conducting the business of the removal of disposal of sludge from
the
site.
[9]
In the replying affidavit the applicant relied on a copy of the
minutes of the operational meeting held on 23 January 2014.
From those minutes it is clear that the applicant was not at the
meeting. The applicant however relies on the following passage
in the minutes:
“
ZB
Biocal has always crushed, screened and loaded all the sludge for all
three companies (Dotcom, Loletso and ZB Biocal) but Loletso
had
previously (November/December 2013) expressed their desire to start
their own operations on site at Panfontein and not make
use of ZB
Biocal.”
In
context these minutes in fact reveal that there were only two
companies who had been allocated the drying beds at the relevant
time
for the removal of sludge at Panfontein. It was the right of
those companies that was discussed at the meeting.
It is also
clear that Biocal was the entity that had crushed, screen and loaded
sludge for the three companies including the applicant.
The
allocation and right to the drying beds were thus those of Biocal and
not the applicant. There thus on the papers exists
a genuine
dispute of fact and the court has to apply the
Plascon-Evans-
rule
as enunciated in the matter of
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA)
paragraph 26.
The applicant accordingly did not prove that it was in possession of
the yard and therefore the application
on that basis must be
dismissed.
[10]
Furthermore the applicant in the relief sought is requesting an order
for specific performance of the rights and obligations
under the
disputed contract. The
mandament
of spolie
cannot be utilised to enforce
specific performance of a contract. The applicant must
accordingly on that basis also be unsuccessful
in the application.
[11]
The respondent also argued that there was a lack of urgency. In
the founding affidavits the applicant referred to all
the equipment
and the risk thereof. However in the opposing affidavit the
respondent had demonstrably proven that the equipment
does not belong
to the applicant at all, but to Biocal. In any event the
respondent has tendered that the applicant can remove
any of the
equipment if he can prove ownership of the equipment. The
applicant has not proven that it will not get substantial
redress in
a subsequent hearing as he could issue summons for damages or follow
the arbitration route.
[12]
The applicant relied on the judgment of
Willowvale
Estates CC & Another v Bryanmore Estates Limited
1990
(3) SA 954
(W)
and specifically at
p961B:
“
Speedy
relief is given upon the simple facts of possession and
dispossession. This involves, or should involve, short
affidavits
filed expeditiously on those very limited issues.”
The
applicant also relied on
Ivanov v
Northwest Gambling Board and Another
2012
(6) SA 67
(SCA)
at 75:
“
[19]
In my view the submission on behalf of the respondents is devoid of
merit. The historical background and the general
principles
underlying the mandament van spolie are well established.
Spoliation is the wrongful deprivation of another’s
right of
possession. The aim of spoliation is to prevent self-help.
It seeks to prevent people from taking law into
their own hands.
An applicant upon proof of two requirements is entitled to an
mandament van spolie restoring the status
quo ante. The first
is proof that the applicant was in possession of the spoliated
thing. The cause for possession
is the wrongful deprivation of
possession. The fact that possession is wrongful or illegal is
irrelevant, as that would go
to the merits of the dispute.
[20]
In Nino Bonino v De Lange Innes CJ enunciated the principle
underlying the mandament van spolie as follows:
‘
It
is a fundamental principle that no man is allowed to take the law
into his own hands; no one is permitted to dispossess
another
forcibly or wrongfully and against his consent of the possession of
property, whether movable or immovable. If he
does so, the
court will summarily restore the status quo ante, and will do that as
a preliminary to any inquiry or investigation
into the merits of the
dispute’.”
[13]
It was also argued that the right that a court has to protect in
applications of this nature is not the right flowing from
the
agreement but the actual possession or control. For this
submission reliance was placed on
ATM
Solution v Olkru Handelaars CC
2009
(4) SA 337
(SCA):
“
[2]
The High Court refused the application for a spoliation order on the
basis that ATM Solutions had nothing more than a contractual
right to
have its machine in place in Kwikspar and that the mandament is not
the appropriate remedy for the enforcement of contractual
rights.
In reaching this decision the court considered itself bound by recent
decisions of this court, in particular Telkom
SA Ltd v Xsinet (Pty)
Ltd (Xsinet); and FirstRand Ltd t/a Rand Merchant Bank v
Scholtz NO and Others, which have held that
in order for rights to
qualify for protection through the grant of a spoliation order, they
must be “gebruiksregte”
(rights to use property) or
incidents of the possession or control of property. The purpose
of spoliation orders, it is trite,
is to stop people from taking the
law into their own hands, and to preserve the peace, rather than to
order specific performance
of a contract.”
[14]
The first question this court has to answer is whether the use of the
respondent’s property was an incident of possession
or a matter
regulated by contract. In
First
Rand Ltd t/a Rand Merchant Bank v Scholtz NO and Others
2008
(2) SA 503
(SCA)
Malan AJA (as he then
was) stated at 510B-D as follows:
“
The
mandament van spolie does not have a ‘catch-all function’
to protect the quasi-possessio of all kinds of rights
irrespective of
their nature. In cases such as where a purported servitude is
concerned the mandament is obviously the appropriate
remedy, but not
where contractual rights are 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 characterised to establish
whether its quasi-possessio is deserving of protection
by the
mandament. Kleyn seeks to limit the rights concerned to
‘gebruiksregte’ such as rights of way, a right
of access
through a gate or the right to affix a nameplate to a wall regardless
of whether the alleged right is real or personal.
That explains
why possession of ‘mere’ personal rights (or their
exercise) is not protected by the mandament.
The right held in
quasi-possessio must be a ‘gebruisreg’ or an incident of
the possession or control of the property’.”
It
thus follows that the right sought to be protected must either be a
“gebruiksreg” or an incident of possession.
In
Telkom v Xsinet (Pty) Ltd
2003
(5) SA 309
(SCA)
the court concluded
that the disconnection of a telephone and bandwidth system did not
activate the
mandament van spolie
as
the rights were mere personal rights and the relief sought in the
form of the
mandament
was
essentially to compel specific performance of a contractual right.
In
Impala Water Users Association v
Lourens NO and Others
2008 (2)
SA 495
(SCA)
the court dealt with the
claim that water rights that had been used had become an incident of
possession. In distinguishing
the
Xsinet
matter, the court concluded (at
500H) that “the water rights interfered with were linked to and
registered in respect of a
certain portion of each farm used for the
cultivation of sugar cane, which was dependent on the supply of water
forming the subject
matter of the right. The use of water was
accordingly an incident of possession of each farm …”.
It was
thus not simply the use of water that had rendered it an
incident of possession, but also the circumstances under which such
use
came into existence and its linkages to the possession of the
property.
[15]
It thus follows that the mere use and enjoyment would not in itself
satisfy the requirement of an incident of possession.
What is
required is not simply some connection between the use of property
and the possession of the property but rather something
more that
elevates the use and enjoyment to being an incident of possession.
It was also submitted on behalf of the respondent
that the relief is
an order for specific performance of the rights and obligations under
the disputed contract.
[16]
A
mandament
is
final relief on possession and thus appealable. An applicant
must thus set out all the requirements for the
mandament
and the court must determine whether
the applicant is entitled to final relief based on the
Plascon-Evans
-rule
as enunciated in
National Director of
Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA)
para 26. It is
trite that an applicant in terms of
mandament
of spolie
need not prove the validity
of its possession, however as set out in the
Firstrand
matter
supra
the nature of the right must be
determined to establish whether it is a
quasi-
possession
deserving of protection. The applicant could not enter the
premises of the respondent unless it had a contract
with the
respondent. The right the applicant thus wants to enforce is
that of possession based on an averred contract.
[17]
The applicant only had the right to enter the respondent’s
premises to conduct its business if the contract existed.
In
its papers the applicant alleged that it had a contract to do so and
was at the time of the unlawful spoliation had been on
the site for
4
1
/
2
months. The nature of the contract was that the applicant would
ultimately remove the sludge and be paid therefor as the invoices
to
the replying affidavit reflected. This relationship is thus
purely contractual. It must thus be accepted that what
the
applicant sought to enforce was a contractual arrangement to enter
the premises and it was not a “gebruiksreg”
or incidents
of possession. The applicant’s submission that the
applicant only referred to the agreement as to provide
the background
to the application is thus incorrect. The court has to
investigate from where the possession flows and such
investigation is
material and relevant to the purposes of the adjudication of this
application.
[18]
I am thus satisfied that it may well be that the applicant could
enter the premises while he was conducting his business but
that such
usage arose out of a contractual relationship with the respondent and
was not an incident of possession. The
mandament
of spolie
cannot be utilised and
extended to enforce specific performance of a contract.
[19]
I am also satisfied that the applicant could be afforded substantial
redress at a hearing in due course in that any breach
of a valid
contract could be enforced in a court of law. Furthermore the
applicant could have brought a
mandamus
to prevent the respondent from barring
him entry to the premises. The applicant thus had alternative
remedies and the applicant
did not fulfil the second requirement for
the matter to be heard on an urgent basis.
[20]
This court is confronted with many urgent applications necessitating
a high volume of judgments to be delivered within time
constraints.
I do not for one moment submit that therefore “bad judgments”
should follow, but I do due to time
constraints not find it necessary
to address the other issues raised by the respondent. I will
however remark that I am also
satisfied that the respondent did not
spoliate the applicant. This is so because the nature of the
applicant’s right
was material for determining whether the
conduct complained about by the applicant for a
mandament
of spolie
amounts to a spoliation.
I say this because there cannot be dispossession if the conduct of
the respondent did not in law
infringe or derogate from the alleged
right. In applying the principles of
Plascon-Evans
I would be satisfied that the
respondent’s version pertaining to the spoliation must be
accepted and therefore the application
must be dismissed.
[21]
I accordingly make the following order:
The
applicant’s application is dismissed with costs.
__________________
S.
POTTERILL
JUDGE
OF THE HIGH COURT
CASE
NO: 16980/15
HEARD
ON: 19 March 2015
FOR
THE APPLICANT: ADV. J.G. CILLIERS SC
INSTRUCTED
BY: Mills & Groenewald
FOR
THE RESPONDENT: ADV. V. MALEKA SC
ADV.
M. SELLO
INSTRUCTED
BY: D L A Cliffe Dekker Hofmeyr
DATE
OF JUDGMENT: 24 March 2015