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[2015] ZANCHC 21
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Selective Sands (Pty) Ltd v Lunt and Others (385/2015) [2015] ZANCHC 21 (22 May 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Saakno
/ Case number:
385
/ 2015
Datum
verhoor/Date heard:
13
/ 05 /2015
Datum
gelewer/Date delivered:
22
/ 05 /2015
In
the matter between:
SELECTIVE
SANDS (PTY) LTD
Applicant
and
B
LUNT
First
Respondent
G
GOOL
Second
Respondent
SOL
PLAATJE MUNISIPALITY
Third Respondent
Coram:
Erasmus, AJ
JUDGMENT
ERASMUS,
AJ
[1]
The applicant lodged an urgent application on 3 March 2015 and a rule
nisi was issued
1.1
prohibiting
the respondents to remove the top/sub soil (hereinafter referred to
as ‘the topsoil’) on the property known
as a portion of
Erf [....], Kimberley;
1.2
ordering
the respondents to restore the possession of the topsoil that had
been removed by the respondents on 2 March 2015, within
48 hours of
date of the order;
1.3
prohibiting
the first and second respondent (or any person through them), from
entering the abovementioned property, after having
complied with the
order set out in 1.2, and
1.4
ordering
that the costs of the application be paid by the respondents.
[2]
The respondents opposed the application and the third respondent
lodged a counter application seeking the eviction of the applicant
from the farm Vooruitzigt, No. [...], in the district of Kimberley.
The applicant initially opposed the counter application
but later
withdrew its opposition. The relief sought in the counter
application has already been granted and I do not deem
it necessary
to deal with the counter application herein.
[3]
At the hearing of the application, counsel for the applicant
indicated that the applicant no longer seeks confirmation of
paragraph
1.3 of the rule
nisi
issued
on 3 March 2015, but only paragraphs 1.1, 1.2 and 1.4 thereof.
[4]
The nature of the relief contained in paragraphs 1.1 and 1.2 of the
rule
nisi
is
in effect a
mandament
van spolie
.
It was submitted by counsel for the applicant that the basis of the
application is the act of spoliation committed by the
first and
second respondents.
[5]
It is trite law that a
mandament
van spolie
is a possessory remedy whereby the possession of a party is protected
without consideration of a party’s right to ownership
or other
rights to the property.
[1]
It is therefore not necessary to decide on the applicant’s
rights to and/or in respect of the topsoil.
[6]
A spoliation order is a final determination of the immediate right to
possession, which implies that it is not sufficient for
the applicant
to merely make out a
prima
facie
case. The applicant must therefore prove its case on a balance
of probabilities as in any other civil case.
[2]
To be successful in a spoliation application, the applicant therefore
had to prove, on a balance of probabilities, that
6.1
it was in undisturbed possession of the property which warrants the
protection afforded by the remedy, and
6.2
the respondents unlawfully deprived it of the possession.
[3]
[7]
With regard to the proof of possession, the applicant was required to
prove that it was in
de
facto
possession
at the time when it was unlawfully deprived of its possession.
Possession includes a physical element of
corpus
or
detentio.
[4]
The
lawfulness of the possession is irrelevant.
[5]
[8]
In respect of the deprivation of possession, the applicant was
required to prove that the deprivation was against its will and
without resort to the legal process.
[6]
[9]
The relevant facts, as set out in the founding affidavit, are as
follows:
9.1
The applicant was registered on 1 December 2014 and commenced
business on that day. The deponent to the founding
affidavit,
hereinafter referred to as ‘Louwrens’, is the sole
shareholder and director of the applicant.
9.2
The property which forms the subject of the dispute is described as a
portion of Erf [....], Homestead Brickfields,
Kimberley, and the
third respondent is the owner thereof.
9.3
Louwrens avers, without attaching any supporting documents in this
regard, that
9.3.1
he became a partner in Peyper Delwerye during May 2014 and that
Peyper Delwerye possesses certain rights
in respect of this property;
9.3.2
a lot of his (Louwrens’s) machinery and equipment are on the
said property,
9.3.3
the applicant took over Peyper Delwerye, and
9.3.4
the applicant is in the process of getting the documents in order so
that Fredericks, who allegedly now
has certain rights in respect of
the property, will become a director of the applicant.
9.4
During the period August 2014 to December 2014 Louwrens removed the
topsoil from the cleaning site and dumped
it on the said property,
with the intention to utilise it during the mining process which was
to commence at some stage in the
future.
9.5
During August 2014 Louwrens had obtained permission from an employee
of the third respondent to remove the
topsoil.
9.6
During February 2015 Louwrens received a letter from the third
respondent, instructing him to vacate the municipal
land and to
refrain from conducting his illegal activities on that land.
The letter does not refer to any specific property.
9.7
From 24 February 2015 Louwrens noted that earthmoving equipment was
dispatched on the property adjacent to
the said property, after which
he contacted his attorney to stop any possible activity that could
threaten
his
undisturbed possession and use of the topsoil.
9.8
Louwrens avers that, despite the letters sent to the respondents by
his attorney, the respondents continued
with the loading and removal
of
his
property from the said property. These letters are attached as
Annexures ‘AJL8’ to the founding affidavit.
From
the contents thereof it appears that
9.8.1
the attorneys acted on behalf of their clients, Messrs MR Fredericks,
N Raath and AJ Louwrens,
9.8.2
the respondents and/or their agents and/or employees were threatening
their clients’ undisturbed possession
of Erf [....],
9.8.3
their clients will approach the High Court to obtain an interdict and
cost order if the respondents fail
to cease their actions.
9.9
There is no reference in the aforementioned letters to the applicant
and/or that it was in undisturbed possession
and/or that the action
of the respondents posed any threat to the applicant’s
undisturbed possession of the topsoil on Erf
[....] and/or of any
right vesting in the applicant.
9.10
Louwrens submitted that
he
,
given the aforesaid, at least has a
prima
facie
right
to the topsoil that was being removed by the respondents and that the
respondents were threatening
his
use and possession of the topsoil.
9.11
The only reference to the applicant is a bald allegation by Louwrens
that the removal of the topsoil costs him and, accordingly
the
applicant, a lot of money which
he
(Louwrens) stands to lose if the respondents are allowed to continue
with the removal of the topsoil and that the applicant potentially
stands to be prejudiced should the relief not be granted.
[10]
The application papers were served on Fredericks. He, through
his attorneys, indicated that he has no interest
in the outcome of
the proceedings. He did file an affidavit though to address
certain issues in the application papers. In
his affidavit,
Fredericks denies any business relationship with Louwrens and/or the
applicant and further denies ever granting
either of them any rights
with regard to a mining permit in respect of the property.
There is no existing mining permit in
respect of the property
referred to by Louwrens. Fredericks further denies that he ever
instructed the attorneys to send
out the letters Annexure ‘AJL8’
and/or that he is a client of the said attorneys.
[11]
The respondents, in the opposing papers, aver the following:
11.1
The
property
which forms the subject matter of the dispute is not described
correctly, as no such property exists;
11.2
The correct description of the property with reference to Erf [....],
is the remaining extent of Erf [....], Kimberley
and there are no
mining activities taking place thereon;
11.3
There are mining activities being conducted by the second respondent
through the first respondent, and that those activities
are taking
place on Portion 1 of the farm Vooruitzigt, No. 81, in the district
of Kimberley;
11.4
The third respondent is the owner of this property to wit Portion 1
of the farm Vooruitzigt, No. 81;
11.5
Raath and Louwrens illegally removed topsoil from a large area of
municipal property situated in Colville and deposited
it on Portion 1
of the farm Vooruitzigt, No. 81, to which neither Louwrens, Raath nor
the applicant have any rights. They
stopped doing so in
December 2014;
11.6
The respondents specifically deny that they have ever threatened the
possession of either Louwrens and/or the applicant
and also deny that
they removed any topsoil from the property referred to in the rule
nisi
or
the remaining extent of Erf [....], Kimberley and submit that the
property forming the subject matter of the dispute has been
misidentified by the applicant;
11.7
The respondents further specifically denied that the applicant had
the undisturbed possession of Portion 1 of the farm
Vooruitzigt Nr 81
and/or the topsoil which forms the subject of the alleged spoliation
and point out that no allegation has been
made in the founding papers
that the applicant was in undisturbed possession of the topsoil;
11.8
The respondents further pertinently pointed out that Louwrens was
relying on his alleged possession as opposed to any
alleged
possession by the applicant; and
11.9
The respondents specifically placed the applicant’s
locus
standi
in
dispute.
[12]
Louwrens, in the replying affidavit, attempts to address the issues
pertaining to the description of the property mentioned
in the rule
nisi
,
the
locus
standi
of
the applicant and its possession of the topsoil. The relevant
averments contained in the replying affidavit of Louwrens
are the
following:
12.1
The incorrect description of the property which forms the subject of
the application is ascribed to a
bona
fide
error.
He averred that the property referred to in the rule
nisi
and
the property referred to by the respondents as Portion 1 of the farm
Vooruitzigt, No. 81, in the district of Kimberley, is in
fact the
same property. He further stated that the mining activities
conducted by the first and second respondents are taking
place on a
different property, to wit Erf [....].
12.2
Louwrens averred that the applicant’s equipment and the topsoil
which forms the subject of the application are
on the property
believed by Louwrens to be a portion of Erf [....], Kimberley.
12.3
In respect of the
locus
standi
of
the applicant, it is merely alleged that the applicant has the
necessary
locus
standi.
No factual basis for the allegation was provided.
[13]
It is trite law that an applicant must make out its case in the
founding affidavit.
[7]
This
includes appropriate allegations to establish its
locus
standi.
This
implies that the applicant should, in its founding affidavit, make
allegations showing its right to apply for the relief sought.
[8]
[14]
An applicant who seeks final relief in motion proceedings must, where
a dispute of fact arises, accept the version set
up by the respondent
unless the respondent’s allegations are such that they do not
raise a real, genuine or
bona
fide
dispute
of fact or are so far-fetched or clearly untenable that the court is
justified in rejecting those allegations merely on
the papers
[9]
or if the facts averred in the applicant’s founding papers, and
which have been admitted by the respondent, together with
the facts
alleged by the respondent, justifies such an order
[10]
.
[15]
There is no evidence to the effect that the third respondent
committed any act of spoliation. The rule
nisi
in
respect of the third respondent should not have been granted and
cannot be confirmed.
[16]
On the respondents’ version, the topsoil removed by the first
and second respondent, was removed from the property
known as Portion
1 of the farm Vooruitzigt, No. 81, in the district of Kimberley.
The first and second respondent occupied
and controlled this
property. This property
is
not the subject matter of the rule
nisi.
The
rule
nisi
sought
to be confirmed, refers to a different property.
[17]
It was submitted on behalf of the respondents that the applicant had
not established its
locus standi
and had also not made out a
case for a
mandament van spolie
. I agree with these
submissions. The applicant has in the founding papers neither
established its
locus standi
nor has it been established that
it was in peaceful and undisturbed possession of the topsoil which
forms the subject of the application.
Despite having been
invited to deal with the
locus standi
of the applicant and its
undisturbed possession of the topsoil, these issues were likewise not
addressed in the replying papers.
17.1
It was alleged that Louwrens was in possession and that his
possession had been interfered with. The submission
on behalf
of the applicant that the removal of the topsoil had been an expense
of the applicant and that the applicant stands to
suffer damages
should the relief not be granted, is not supported by the allegations
in the founding affidavit. In the relevant
section of the
founding affidavit relied on for the submission, Louwrens merely
states that the removal of the soil cost him and
accordingly also the
applicant a lot of money which
he
(Louwrens) stands to lose if the respondents were allowed to continue
with the removal of the soil. For the greater part
of the
period that Louwrens removed the soil, the applicant had not yet been
in existence.
17.2
It was submitted on behalf of the applicant that it is ‘clear
from the papers’ that Louwrens claims possession
of the topsoil
on behalf of the applicant and that every reference made to him
(Louwrens), should be viewed as reference to the
applicant since he
is the only director of the applicant. There is no allegation
in the papers that Louwrens claims possession
of the topsoil on
behalf of the applicant, despite the fact that this issue was
pertinently raised in the opposing papers.
The fact that
Louwrens is the only director of the applicant does not, in the
absence of an allegation to that effect, imply that
any reference to
him should be viewed as a reference to the applicant.
17.3
Louwrens did not respond to the respondents’ pertinent denial
that neither he nor the applicant ever had the undisturbed
possession
of Portion 1 of the farm Vooruitzigt, No. 81, and the topsoil which
forms the subject matter of the application.
17.4
Louwrens also did not respond to the allegation that he was relying
on his alleged possession as opposed to any alleged
possession
thereof by the applicant.
17.5
Louwrens’s allegations pertaining to the possession of the
topsoil appear to contradict allegations made in the
founding
affidavit and appear contradictory in itself, especially so if it is
viewed against the fact that the applicant was registered
and
commenced business on 1 December 2014.
17.6
It does not appear from the applicant’s papers, neither from
the founding nor from the replying affidavit, how
possession of the
topsoil was transferred to the applicant and/or how he came into
possession of the topsoil which forms the subject
matter of this
application and which on Louwrens’s version had been removed
and dumped before the applicant was registered
and had commenced
business.
[18]
The applicant has not proved its case on a balance of probabilities
and as a result thereof the rule
nisi
cannot
be confirmed.
[19]
No argument was advanced as to why the costs should not follow the
outcome of the proceedings. There is no reason
why the general
principle in this regard should not be followed in this matter.
WHEREFORE
I MAKE THE FOLLOWING ORDER:
1.
THE
RULE
NISI
ISSUED
ON 3 MARCH 2015 IS DISCHARGED.
2.
THE
APPLICANT IS ORDERED TO PAY THE COSTS OF THE APPLICATION.
_________________
SL ERASMUS
ACTING JUDGE
For
the Applicant:
Adv. J.G. van
Niekerk (oio Van de Wall & Partners)
For
the Respondent:
Adv.
A.D. Olivier (oio Hugo Mathewson & Oosthuizen0
[1]
Microsure
(Pty) Ltd v Net 1 Applied Technologies South Africa Ltd
2010(2)
SA 59 63H-I;
Bon
Quelle (Edms) Bpk v Munisipaliteit van Otavi
1989(1)
SA 508 (A) at 513B-516C
[2]
Malan
v Green Valley Farm Portion 7 Holt Hill 434 CC
2007(5)
SA 114 (E) at 123H-I;
Mankowitz
v Loewenthal
1982(3)
SA 758 at 76G-H
[3]
Yeko
v Qana
1973
(4) SA 735
(A) at 739;
Firstrand
Ltd t/a Rand Merchant Bank v Scholtz NO
2008(2)
SA 503 (A) par [12]
[4]
Reck
v Mills
1990(1)
SA 751 (A) at 759B-D
[5]
Kotze
v Pretorius
1971(4)
SA 346 (NC)
at
349H -350D;
Malan
v Green Valley Farm, supra
at 124B
[6]
Wightman
t/a JW Construction V Headfour (Pty) Ltd
2008(3)
SA 371 at 381 par [27]
[7]
Syntheta
(Pty) Ltd v Janssen Pharmaceutica NV and Another
[1998] ZASCA 74
;
[1998]
4 All SA 445
at 448;
Democratic
Alliance v Kouga Municipality & Others
[2014]
All SA 281
(SCA) par [18]
[8]
Scott
v Hanekom
1980
(3) SA 1182
(C) at 1188H
[9]
Wightman
t/a JW Construction
supra
at
375 par [12]
[10]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984(3)
SA 623 (A) at 634E-635C