About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2014
>>
[2014] ZAFSHC 111
|
|
Khali v Abdulla (729/2014) [2014] ZAFSHC 111 (8 August 2014)
FREE
STATE
HIGH COURT,
BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No.: 729/2014
In
the matter between:
LETELE
MOSES KHALI
…....................................................................................................
Applicant
and
SAMIA
ABDULLA
….............................................................................................................
Respondent
JUDGMENT
BY:
MBHELE, AJ
HEARD
ON:
19 JUNE 2014
DELIVERED
ON:
8 AUGUST 2014
[1]
This is an opposed application of an interim order directing the
respondent to exclude or withdraw cattle belonging to the applicant
from the auction to be held at 13:00 on 19 February 2014 at Twilight
Breeze Animal Pound or any further auction to be held at the
mentioned pound or of Twilight Breeze Animal Pound pending an
application to be brought for the return/release of applicant’s
animals.
[2]
On 19 February 2014 a rule
nisi
was granted in favour of the applicant calling upon the respondent to
show cause why the following order should not be made final:
“
1.1
That the respondent is ordered to exclude/withdraw any cattle
belonging to applicant from the auction to be held at 13:00 on
19
February 2014 at Twilight Breeze Animal Pound or any further auction
to be held at the mentioned pound or of Twilight Breeze
pending an
application to be brought for the return/release of applicant’s
animals within 21 days of relief granted herein.
2.
The order granted in paragraph 1.1 to serve as an interim interdict
with immediate effect.”
FACTS NOT IN
DISPUTE
[3]
Respondent is the pound master of the Twilight Breeze Animal Pound
(Operated in accordance with the Pound Ordinance 18/ 1952)
(“the
Ordinance”).
[4]
Respondent is in terms of the Provisions of the Ordinance authorised
to receive all animals delivered at the pound between sunrise
and
sunset.
[5]
192 Cattle came into respondent’s possession between the 22
nd
and 24
th
January 2014.
[6]
The 192 cattle that were impounded were marked by the respondent for
identification with yellow paint.
[7]
Some of the impounded cattle had been branded with mark “KEK”.
[8]
“KEK” is the identification mark used by the applicant to
brand his stock.
[9]
The applicant claims 183 of the 192 cattle delivered to the pound.
ISSUES IN
DISPUTE
[10]
Whether the cattle impounded in respondent’s pound were
spoliated and removed contrary to section 18(1) of the Pound
Ordinances.
[11]
Whether some of the cattle impounded were meant to be auctioned at an
auction held on 19 February 2014 at the Twilight Breeze
Animal Pound.
[12]
Respondent states that between the 22
nd
and 24
th
January 2014 192 cattle were delivered at Twilight Breeze Animal
Pound; The cattle were delivered by one Elton Jacobs (Jacobs),
together with Lionel Thomas De Nett (De Nett). Upon the
delivery of the cattle Jacobs and De Nett informed the respondent
that the cattle had been trespassing on Jacobs’ farm,
Goldmansrust no. 320.
[12]
After the cattle were delivered for impoundment, Jacobs (through De
Nett) delivered a claim to the respondent for “illegal
grazing
of the cattle on his farm, Goldmansrust. The claim referred to
is for R388 000 and is dated 24 January 2014.
Applicant
states that 183 cattle impounded by the respondent between 22 and 24
January 2014 were in his undisturbed posession and
under his control
when they were impounded from his farm Balmacara No. 14.
Applicant further submits that 8 of his impounded
cattle were due to
be sold at an auction to be held on the 19
th
February 2014 at the respondent’s Twilight Breeze Animal Pound.
[13]
Respondent denies that applicants’ cattle were on the list of
the cattle that were identified for sale in auction.
Both
Jacobs and the applicant are in possession of letters from the
Department of Rural Development and Land Affairs giving them
permission to occupy the farm Balmacara No. 14. Jacobs has been
given permission to occupy the farm Balmacara from 1 September
2013
to 30 November 2013 while the applicant’s permission to occupy
covers the period from 1 September 2013 to December 2013.
[15]
Chapter III of the Ordinance stipulates duties and liabilities of
Pound-masters.
[16]
Section 8(1)(b) of the Ordinance provides that:
“
It
shall be the duty of every Pound-master to receive or cause to be
received all animals tendered at the pound between sunrise
and sunset
in accordance with the provisions of this ordinance or any law…”
[17]
Section 18(1) of the Ordinance further provides that:
“
(i)
A landowner on whose land stock is found trespassing and who wishes
to impound such stock in terms of this Ordinance shall send
the same
to that pound which is the nearest by any passable road or
thoroughfare to the land trespassed upon whether the said pound
is in
the district in which the said ground is situate …”
[18]
Mr Louw on behalf of the respondent argued that the respondent
empounded the cattle in terms of the provisions of section 8(1)(b)
of
the Ordinance. He further argued that if the applicant was
spoliated, in any manner, respondent was not the one who committed
spoliation.
[19]
Respondent was not able to obtain affidavits from Jacobs ad De Nett
confirming that the cattle were found trespassing on Jacobs’
farm, Goldmansrust.
[20]
Respondent’s right to receive animals into the pound is
dependent on compliance with other provisions of the Ordinance.
[21]
Section 26 provides that:
“
1.
Every landowner who personally brings stock to the pound shall
verbally or if he sends the same in charge of another person,
in
writing furnish to the pound-master particulars of the number of
animals sent to the pound, the place from which they were sent
and
its distance from the pound together with his claim for damage done,
if any, as duly assessed in terms of section thirty two.
2.
The pound-master shall not receive any stock into the pound nor be
liable to pay any driving fees therefor unless and until he
has
received such statement;…”
[22]
Section 32 of the Ordinance provides as follows:
“
Where
the damage has been done by the impounded stock the landowner who
suffered the damage shall be entitled to cause such damage
to be
estimated by two impartial persons and in such case the following
provision shall apply:-
1.
The landowner shall at the time when the
stock is impounded furnish to the pound-master written notice of such
estimate and the
costs thereof together with the estimate list signed
by the valuators.”
[23]
Respondent, in paragraph 12 of her opposing affidavit states that
after the cattle were delivered for impoundment, Jacobs (through
De
Nett), delivered a claim to her for “illegal grazing” of
the cattle on the farm, Goldmansrust.
[24]
The pound-master received the statement of claim on 24 January 2014,
two days after the process of impoundment had begun. There
is no
indication on the statement of claim that the claim was assessed by
independent valuators.
[25]
What is more problematic is the unwillingness on the part of Jacobs
and De Nett to confirm allegations as contained in the
respondent’s
affidavit, making it difficult to ascertain whether the provision of
section 18(1) were complied with.
[26]
The applicant avers that he was in peaceful and undisturbed
possession of his livestock at his farm Balmacara No. 14 when it
was
impounded. There is no evidence before me to prove the
contrary.
[27]
Spoliation is the wrongful deprivation of another’s right of
possession. Respondent denies that some of the applicant’s
cattle were on the list of stock to be auctioned on the 19
th
February 2014. Applicant identified cattle to be auctioned on
the 19 February 2014. The said cattle are listed under
numbers
3, 18, 19, 21, 23, 26, 47 and 57 on the Notice of Auction.
Respondent does not dispute the correctness of the Notice
of Auction.
[28]
Although the respondent relies on provisions of section 8 to justify
impoundment I am not satisfied that all other relevant
sections of
the Ordinance were complied with
[29]
I am persuaded that the applicant was unlawfully deprived of
possession of his cattle by the respondent. In the circumstances
I
make the following order.
ORDER
[30]
The
rule nisi
is confirmed.
[31]
The cost of the application are to be paid by the Respondent and are
to include the costs of one senior counsel.
________________
N. M. MBHELE, AJ
On behalf of the
applicant: Adv. A. H. Burger SC
Instructed
by:
Moroka
Attorneys
BLOEMFONTEIN
On behalf of the
respondent: Adv. M. C. Louw
Instructed
by:
Stander
and Partners
BLOEMFONTEIN