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[2014] ZAFSHC 155
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Solar Mounting Solutions (Pty) Ltd v Engala Africa (Pty) Ltd and Others (3717/2014) [2014] ZAFSHC 155 (5 September 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 3717/2014
In
the matter between:
SOLAR
MOUNTING SOLUTIONS (PTY) LTD
…..............................................................
Applicant
and
ENGALA
AFRICA (PTY) LTD
…................................................................................
First
Respondent
SCHLETTER
SOUTH AFRICA (PTY) LTD
….....................................................
Second
Respondent
SUN
EDISON ENERGY SOUTHERN
…..................................................................
Third
Respondent
AFRICA
(PTY) LTD
HEARD
ON:
5 SEPTEMBER 2014
JUDGMENT
BY:
G.J.M. WRIGHT, AJ
REASONS
[1]
On 14 August 2014 and after the Applicant approached the court on an
ex parte basis, Moloi J issued a rule
nisi
calling on the First Respondent to show cause on 9 October 2014 why a
final order in the following terms should not be made:
(a)
The applicant’s possession of the
property as defined in the applicant’s founding affidavit shall
be restored by the
first respondent to the applicant forthwith;
(b)
The first respondent shall refrain from
spoliating, dispossessing, or otherwise interfering, with the
applicant’s possession
of the property.
[2]
In terms of a notice dated 3 September 2014 the First Respondent
anticipated the return date of the rule
nisi
.
An opposing affidavit was filed, followed by the Applicant’s
replying affidavit.
[3]
The parties appeared before me on 5 September 2014 and argued the
application. The Applicant requested me to confirm the rule
nisi
and the First Respondent implored me to discharge the rule
nisi
.
After hearing arguments I considered the matter and proceeded to
issue the following orders:
1.
The rule
nisi
is confirmed;
2.
The First Respondent is to pay the costs of the application.
[4]
Against the background of time constraints as well as the urgency of
the matter I indicated to the parties that the reasons
for my
decision will be made available at a later stage. Here follow the
reasons for that order.
[5]
The
mandament van spolie
is a possessory remedy. The essential characteristic of a possessory
remedy is that the legal process whereby the possession of
a party is
protected, is kept strictly separated from the process whereby a
party’s right to the property, is determined.
Spoliation orders
are granted so as not to allow any man to take the law into his own
hands. If he does so, the court will summarily
restore the status
quo
ante
as a preliminary step to any
investigation into the merits of the dispute.
See:
Nino Bonino v De Lange
1906 TS 120
at 122;
Ivanov
v North West Gambling Board
2012
(6) SA
67
(SCA) at 75 B – E.
[6]
As such, the
mandament van spolie
is an extraordinary and robust remedy. The requisites for a
spoliation order are trite and may be summarized as follows:
(i)
that the applicant was in possession of the
property; and
(ii)
that the respondent deprived him of the
possession forcibly or wrongfully against his consent.
See:
Yeko v Qana
1973 (4) SA 735
(A) at 739.
[7]
The cause for the applicant’s possession is irrelevant.
See:
Nino Bonino v De Lange
1906 TS 120
at 122.
[8]
The question whether that possession is wrongful or illegal is also
irrelevant and goes to the merits of the dispute.
See:
Ivanov v North West Gambling Board
2012 (6) SA 67
(SCA) at [27].
[9]
An applicant has to show not that he was entitled to be in
possession, but that he was in
de facto
possession at the time of being despoiled. It is not necessary that
the possession be continuous.
See:
Bennett Pringle (Pty) Ltd v Adelaide
Municipality
1977 (1) SA 230
(E) at
233.
[10]
In cases that concern immovable property, the continuous presence of
the applicant or its servants on the premises is not required,
if the
nature of the operations which it conducts on the premises does not
require his continuous presence. Furthermore the possession
need not
have been exclusive possession. A spoliation claim will lie at the
suit of a person who holds jointly with others.
See:
Bennett Pringle
,
supra
.
[11]
An incorporeal right cannot be possessed in the ordinary sense of the
word. The possession is represented by the actual exercise
of the
right. Consequently refusal to allow a person to exercise the right
will amount to a dispossession of the right. In spoliation
proceedings the applicant need not prove that he has the right; what
is relevant is whether or not he has
exercised
the right.
See:
Bon Quelle (Edms) Bpk v
Munisipaliteit van Otavi
1989 (1)
SA 508
(A).
[12]
The act of spoliation complained of
in
casu
occurred on 12 August 2014. At the
time the Applicant still had (at least) a right of access to the site
albeit only to perform
remedial work. This fact may be illustrated
with reference to the papers.
[13]
A completion certificate relating to the work of Schletter and the
First Respondent was only issued on 25 August 2014. The
First
Respondent explains the effect of the certificate in paragraph 15 of
the Opposing Affidavit.
“
The
moment Engala certified completion of Schletter’s work,
Schletter and its subcontractor SMS, had no business on the
construction
site, but for future contractual obligations that may
arise from defects in Schletter’s work.”
[14]
This implies that Schletter and the Applicant “had business”
on the premises up until 25 August. I fail to see
how this did not of
necessity entail the presence of the Applicant and its employees on
the site and/or their right of access to
the site – at least
until 25 August (which is after the act of spoliation and even after
the rule
nisi
was granted).
[15]
The First Respondent admits that the Applicant had access to the
portion of the construction site where it performed its work.
(see
paragraph 24 of the Opposing Affidavit) Since 23 June 2014 the
Applicant was allowed access to perform remedial work. (paragraph
33
of the Opposing Affidavit)
[16]
In its Opposing Affidavit the First Respondent pertinently refers to
the fact that the employees of the Applicant were “forbidden
entry to access the construction site”. (paragraph 25) This
again implies that up until the 12
th
of August they were at least enjoying access to the site. The First
Respondent avers in paragraph 44 of its opposing affidavit
that the
Applicant “was denied access to the site by Pipe”. These
words speak for themselves.
[17]
The property that the Applicant was in possession of in order to
fulfil its contractual obligations has been described in paragraph
18
of the Founding Affidavit. In answering to that specific paragraph,
the First Respondent never denied that the property has
been
described correctly or that the Applicant was entitled to possession
of that specific property.
[18]
During argument, Mr Roestoff for the First Respondent, referred to
the “snag list” attached to the Replying Affidavit
(annexure “SM4”) and argued that the list refers to
portions of the site where the Applicant was not expected to do
remedial work. He did so by comparing the snag list with annexure “B”
to the Founding Affidavit which indicates Block
6 where the Applicant
was performing its contractual obligations at all relevant times.
This argument may be relevant with reference
to the Applicant’s
presence after the completion certificate of 25 August, but does not
disprove Applicant’s possession
and right to access on 12
August.
[19]
It is not denied that Mr Jeff Pipe, representing the First
Respondent, ordered the Applicant and its employees to vacate the
premises. In the Applicant’s words the Applicant was “thrown
off site”. The First Respondent admits this in its
Opposing
Affidavit. The exact wording is also found in an e-mail of Jeff Pipe,
dated 12 August 2014, and annexed to the Founding
Affidavit. It may
legitimately be asked why Pipe would have found it necessary to have
the Applicant and its employees physically
removed from the premises
if they were not occupying the premises in the first place. It is
important to keep in mind that the
alleged act of spoliation
complained of also occurred on the 12th of August. Pipe does not
contend that the Applicant was merely
denied access to the site.
[20]
The First Respondent contends that the Applicant never had exclusive
possession of the site. This fact is not denied. It is
clear that
other sub-contractors at all relevant times also enjoyed possession
of the site and access to portions thereof. Mr Roestoff
compared the
situation to that of a regular building site such as where a house is
erected. A multitude of contractors will be
employed with reference
to specific areas of expertise and areas of work. He argued that no
single subcontractor will have possession
of the whole of the site or
of areas where they are not specifically employed.
[21]
This argument loses sight of the following:
(i) It has been
established through case law that an applicant that complains of an
act of spoliation need not have had exclusive
possession of the
property.
(ii) The Applicant
in casu
does not complain about a denial of possession of
areas of the site other than those described in the Founding
Affidavit and admitted
by the First Respondent.
(iii)
Even though the Applicant may not have had actual possession of the
property complained of, it had a right of access to portions
of the
site.
[22]
Mr Roestoff further focused on pages 64 and 65 of the paginated
papers, being a notice by the Applicant indicating that it
-
“
has
exercised a lien on all structures on phase 1 at the Boshof Solar
Photovoltaic project.”
The
Applicant does not deny that such a notice has been issued. The
question whether the Applicant acted correctly or not in issuing
the
notice is not an issue that may be decided in these spoliation
proceedings.
[23]
The Applicant does not rely on the fact that it was in possession of
the whole of phase 1. It concerns itself only with the
property as
described in paragraph 11 of the Founding Affidavit, specifically
block 6 of phase 1. In any event the Applicant acts
as subcontractor
to the Second Respondent (Schletter). Schletter had the right
to access the whole of phase 1 (compare paragraph
7 of the Opposing
Affidavit).
[24]
Applying the principles set out in the well-known case of
Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A)
(at 634 E – 635 C)
I find that the Applicant was indeed in possession of at least a
right of access to the property described
in the founding papers and
that the First Respondent through Pipe deprived it of the enjoyment
and exercise of such right.
[25]
Mr Roestoff argued that the notice issued by the Applicant (pages 64
and 65 of the indexed papers) should be seen as act of
spoliation in
itself and that any actions by Pipe thereafter are at most acts of
counter-spoliation. He argues that the Applicant,
by issuing the
notice, acted as a “gate-keeper” to the whole of the
site.
[26]
I do not find on the papers convincing proof that Pipe acted in
response to the notice, i.e. in an act of counter spoliation.
In its
papers the First Respondent mainly avers that its defence to the
allegations of spoliation are to be found in Pipe’s
concern
about safety. The First Respondent argues that Pipe was entitled to
deprive the Applicant of possession as he acted lawfully.
The
argument relates specifically to the issues of safety at the site.
Pipe has been appointed as a section 16(2) assignee under
the
provisions of the
Occupational Health and Safety Act of 1993
.
[27]
The First Respondent alleges that the Applicant’s employees
were forbidden entry to access the construction site by Pipe
as he
considered the site “unsafe” (paragraph 25 of the
Opposing Affidavit). It is never explained how or in what manner
the
site was unsafe. It is not explained how serious the alleged safety
issue was and whether Pipe was indeed justified in acting
the way he
did. The First Respondent seems to rely on the vague submission that
Pipe acted properly in terms of the Health and
Safety Act.
Unfortunately the First Respondent chose not to put the relevant and
pertinent information before me but persisted
with vague and general
averments.
[28]
Without the necessary information I find it impossible to determine
whether Pipe in fact acted correctly in terms of the Act.
This links
closely with the question whether the decision by Pipe was correctly
taken and whether it was made for the right reasons.
Such an enquiry
should properly be dealt with by means of a review application. I
cannot, and should not, decide in this spoliation
application whether
Pipe made the correct decision and whether he did so in the correct
manner.
[29]
Pipe may have been entitled to stop the work at the site if he
considered it necessary and in line with his authority under
the Act.
This was also the threat mentioned at a site meeting held on the same
day as the alleged spoliation took place. This is
borne out by the
minutes of that meeting, with reference to paragraph 10 thereof, as
it deals with “method statements, risk
reviews and training”
(see annexure “AA9” to the Opposing Affidavit).
[30]
The relevant portion reads as follows:
“
Jeff
Pipe will carry out a brief review if these are all in place and if
not then the works will be stopped with immediate effect.
[31]
Pipe however did more than “stop the work”. He ordered
the subcontractors to physically vacate the site. The First
Respondent does not explain how (and even if) such a drastic measure
was in line with the provisions of the Health and Safety Act
and
regulations.
[32]
In the premises the First Respondent did not succeed in convincing me
that they acted lawfully. As such the First Respondent
failed to
prove a defence to the act of spoliation committed on 12 August.
[33]
Pipe may still be entitled to order the Applicant to cease all
activity on the site. He may even be entitled to obtain an interdict
to compel them to do so. But he will have to endure the presence of
the Applicant and its employees on the site and/or their right
to
access to that site.
[34]
The rule
nisi
had
to be confirmed. No arguments have been advanced as to why costs
should not follow the result. The First Respondent should therefore
be held liable for the costs of the application.
[35]
It is against the background of all the aforementioned reasons that
the following orders were made:
1.
The rule
nisi
is confirmed;
2. The First
Respondent is to pay the costs of the application.
_________________
G.J.M.
WRIGHT, AJ
12
September 2014
On
behalf of applicant: Adv Johan Louw
Instructed
by:
Liversage
Attorneys
c/o Webbers
Attorneys
BLOEMFONTEIN
On
behalf of first respondent: Adv Roestoff
Instructed by:
Schoeman Maree Inc
BLOEMFONTEIN