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[2014] ZAFSHC 177
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La Pila Pharma CC v Euro Blitz Logistics (Pty) Ltd and Another (1645/2014) [2014] ZAFSHC 177 (2 October 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case
No.: 1645/2014
DATE:
02 OCTOBER 2014
In the matter
between:
LA PILA PHARMA
CC
....................................................................
Applicant
And
EURO BLITZ
LOGISTICS (PTY) LTD
................................
First
Respondent
YELLOWFIN FINANCE
CC
............................................
Second
Respondent
HEARD ON: 18
SEPTEMBER 2014
JUDGMENT
BY: G.J.M. WRIGHT, AJ
DELIVERED ON: 2
OCTOBER 2014
INTRODUCTION
[1] All the
application papers were drawn up in English. Mr Snellenburg and Mr
Els who argued before me, requested leave to argue
in Afrikaans. It
was convenient to do so in the circumstances. For purposes of
judgment, however, I return to the language of the
papers before
court.
BACKGROUND
[2] The Applicant
entered into an instalment sales agreement with the Second Respondent
regarding a certain 2006 Freightliner truck
(“the truck”).
Thereafter the Applicant concluded a sale agreement with the First
Respondent for the same truck. (The
parties are not in agreement
regarding the various terms and conditions relevant to this last
contract of sale.)
[3] The truck was
duly delivered to the First Respondent who used it on a daily basis.
On 4 March 2014 the Applicant removed the
truck from the First
Respondent’s possession. On 17 March attorneys representing the
First Respondent in writing demanded
that the truck be returned to
the First Respondent (see annexure “F” to the Founding
Affidavit).
[4] The Applicant
failed to return the truck, but instead launched this application.
The First Respondent is not only opposing the
application, but has
filed a counter-application based on the mandament van spolie. The
Second Respondent at first intended to
oppose the main application,
but has since withdrawn its notice of intention to oppose. No relief
is being asked for against the
Second Respondent.
[5] Both
applications were argued before me on 18 September 2014. After
listening to the arguments I granted prayers 1 and 2 of
the Notice of
Counter Application. At the time I indicated that the reasons for my
decision will form part of my judgment on the
main application.
Judgment in the main application was reserved.
[6] I therefore
first deal with my reasons for granting the relief claimed by the
First Respondent in the counter-application.
COUNTER-APPLICATION
[7] The First
Respondent used the mandament van spolie to claim back possession of
the truck. The Applicant argued that, as this
corresponds with the
relief claimed by him in prayer 1 of his Notice of Motion, the
counter-application was superfluous and ill-conceived.
This
submission follows the arguments regarding the reason why the
Applicant allegedly launched his application, namely to “purge”
his act of spoliation.
[8] On a first
reading of the application papers the argument raised by the
Applicant seems alluring. A proper analysis of the Applicant’s
papers however reveals that prayer 1 of the Notice of Motion is
qualified by the words “subject to the Relief in prayers
2 and
3 infra”. Prayers 2 and 3 concern a return of the truck to the
Applicant as a consequence of his alleged cancellation
of the
contract of sale following an alleged breach of contract by the First
Respondent. This involves an adjudication of the merits
of possession
which seem to be the main reason why the Applicant approached the
court.
[9] The Applicant
explains his prayer 1 as purging the act of spoliation. The Applicant
admits that he spoliated the First Respondent
and proceeds to explain
that this was done as a consequence to a breach of contract by the
First Respondent in not paying in accordance
with the terms of the
sale agreement (that is the terms according to the Applicant).
[10] 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.
[11] The requisites
for a spoliation order are:
(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. The cause for possession is
irrelevant and the
fact that possession is wrongful or illegal is likewise irrelevant
and goes to the merits of the dispute.
An applicant does
not have to show that he was entitled to be in possession, merely
that he was in de facto possession at the time
of being despoiled.
[12] It is common
cause that the First Respondent was in de facto possession of the
truck and that the Applicant unlawfully removed
the truck from that
possession.
[13] The First
Respondent would have been entitled to launch spoliation proceedings
(and therefore be the first to approach this
court). And both parties
are in agreement that he would have been successful with such an
application. There is no time period
in which to approach the court;
a spoliation application should however be launched within ‘a
reasonable time’. The
Applicant rushed to court first. The
Applicant’s pre-emptive strike does not alter the fact that the
Respondent is entitled
to an order in his favour.
[14] A question that
needs to be decided is whether the return of the vehicle should be
subject to the further relief claimed by
the Applicant. On behalf of
the Applicant, Mr Snellenburg argued that the counter-application
does not turn the proceedings into
proper spoliation proceedings and
that the merits of the parties’ right to possession should be
dealt with as these have
been canvassed fully. He requests the
substantial relief involving questions into the First Respondent’s
right to possess.
[15] One can easily
be confused by the Applicant’s view of the matter and be drawn
into his way of thinking. However, by carefully
scrutinizing the
papers it becomes clear that the Applicant mainly approached the
court for substantial relief revolving around
the contract and the
First Respondent’s alleged breach thereof. The question that
needs to be answered then is whether this
court is entitled to deal
with the merits of the dispute between the parties in the main
application in the form brought by the
Applicant and on the papers as
it were placed before the court.
[16] The essence of
the mandament van spolie finds expression in the maxim spoliatus ante
omnia restituendus est. Where possession
was unlawfully deprived, it
should be restored before all else. In Ngqukumba v Minister of Safety
and Security
2014 (5) SA 112
(CC) at 118 B this sentiment was
expressed as follows:
“The main
purpose of the mandament van spolie is to preserve public order by
restraining persons from taking the law into
their own hands and by
inducing them to follow due process.”
[17] In Tswelopele
Non-profit Organisation and Others v City of Tshwane Metropolitan
Municipality and Others
2007 (6) SA 511
(SCA) at 520 B - C the
Supreme Court of Appeal said:
“. . . .
anyone illicitly deprived of property is entitled to be restored to
possession before anything else is debated or
decided . . . . . The
principle is that illicit deprivation must be remedied before the
Courts will decide competing claims to
the object or property.”
[18] In Burger v Van
Rooyen en ‘n Ander
1961 (1) SA 159
(OPD) the court referred to
the following dictum in the matter of Wait v Wait
1929 E.D.L. 342
at
345:
“It is
possible that respondent may yet satisfy the Court that he is
entitled to the exclusive possession which he claims,
of the farm . .
.; but this he can do only in subsequent proceedings.”
Potgieter J then
comments as follows:
“Die rede vir
hierdie standpunt deur die gesaghebbendes ingeneem, lê voor die
hand. Dit is ‘n eeue oue grondbeginsel
dat niemand die reg in
sy eie hande mag neem nie en, indien hy dit doen, moet hy dadelik
ante omnia die gespolieerde in die status
quo terugplaas. . . . Die
stelreël is spoliatus ante omnia est restituendus – met
ander woorde, voordat enige geding
aangaande die onderwerp waaroor
die geskil gaan aanhangig gemaak kan word, moet die gespolieerde eers
in die posisie geplaas word
waarin hy was voordat die spoliasie
plaasgevind het.”
[19] The Applicant
did not need to approach the court for the purpose of purging his act
of spoliation; he could, and should have,
returned the vehicle
himself. Mr Els representing the First Respondent argues that he
should have done so before even launching
this application. This
argument is in line with the principles enunciated in the cases
referred to above.
[20] Despite the
manner in which the Applicant approached the court and the way in
which he clothed his application, the act of
spoliation needs to be
addressed first and foremost. As prayer 1 of the Applicant’s
Notice of Motion is qualified, it makes
more sense to grant the
relief as prayed for by the First Respondent in the
counter-application, that is the proper spoliation
application, (and
to do so first before dealing with the rest of the relief claimed in
the main application).
[21] As the
successful party the First Respondent is entitled to his costs. Costs
should follow the result. No arguments were presented
as to why that
should not be the case.
[22] It is against
this background that I granted the relief claimed by the First
Respondent in its counter-application.
MAIN APPLICATION
[23] It is now
necessary to properly consider the Applicant’s argument that
the merits of the right to possess have been ventilated
fully and
should be adjudicated.
[24] Against the
background of the dictum in Ngqukumba referred to above, Mr
Snellenburg suggested that adjudication of the further
prayers in the
Applicant’s Notice of Motion be postponed and argued at a later
stage. This, so the argument goes, will then
properly take care of
the maxim spoliatus ante omnia. Mr Els however argued that this will
amount to a condonation of not only
the act of spoliation but also
the principle that a party who spoliated another should come to court
with clean hands.
[25] The approach
suggested by Mr Snellenburg appears artificial. It will assist the
Applicant by ‘correcting’ the fact
that he should have
returned the vehicle first. I am of the view that the dicta in the
cases referred to above should be interpreted
to mean that the
Applicant should first have returned the truck and only then issued
the application. I repeat that the Applicant
did not need the
assistance of the court in purging his wrongful conduct.
[26] Mr Snellenburg
is however correct in pointing out that the First Respondent went
further than merely relying on the Applicant’s
act of
spoliation; he responded to the merits of his (as opposed to the
Applicant’s) right to possess. We need only turn
to relevant
case law in order to unravel this argument.
[27] In Street Pole
Ads Durban (Pty) Ltd v Ethekwini Municipality
[2008] ZAGPHC 33
;
2008 (5) SA 290
(SCA)
the respondent in spoliation proceedings went further than merely
defending the relief prayed for – in a counter-application
he
requested substantive relief relating to his right to possession. On
appeal it was argued that the court should not have engaged
with the
counter-application. This argument was dealt with by the Supreme
Court of Appeal in the following manner:
“This argument
invokes the principle that an offending respondent in a spoliation
application is generally not allowed to
contest the spoliated
applicant’s title to the property. That is because good title
is irrelevant: the claim to spoliatary
relief arises solely from an
unprocedural deprivation of possession. There is a qualification,
however, if the applicant goes further
and claims a substantive right
to possession, whether based on title of ownership or on contract. In
that case ‘the respondent
may answer such additional claim of
right and may demonstrate, if he can, that applicant does not have
the right to possession
which it claims’. This is because such
an applicant ‘in effect forces an investigation of the issues
relevant to the
further relief he claims. Once he does this, the
respondent’s defence in regard thereto has to be considered.”
See also: Stocks
Housing (Cape) (Pty) Ltd v Chief Executive Director, Department of
Education and Culture Services and Others
1996 (4) SA 231
(C) at 244
C – E;
Minister of
Agriculture and Agricultural Development and Others v Segopolo and
Others
1992 (3) SA 967
(T) at 971 B.
[28] The facts in
casu are different. It is indeed the Applicant who is the spoliator
and who insisted on dealing with the merits
of the parties’
right to possession. It is the First Respondent who brought the
spoliation application proper. He also had
no choice but to respond
to the various allegations in fear of seeming to concede the facts as
presented by the Applicant.
[29] The Applicant
as spoliator had no right to deal with the merits of the right to
possession in a pre-emptive manner. The situation
might have been
different if the First Respondent went further than merely claiming
relief with the mandament van spolie.
[30] I am satisfied
that it would not be proper to assist the Applicant by postponing the
remainder of the application for argument
at a later stage after it
has been established that the Applicant did in fact adhered to my
order and returned the truck to the
possession of the First
Respondent.
[31] Even if I err
in coming to this conclusion, it is clear that the application as it
currently serves before court cannot succeed
in the Applicant’s
favour. Even a perfunctory perusal of the application papers reveals
a multitude of factual disputes between
the parties. To name but a
few:
(i) The date on
which the contract was concluded;
(ii) The terms
relating to payment;
(iii) Terms relating
to defects and the repair thereof;
(iv) Ownership and
registration of the truck;
(v) Payment of
license fees;
(vi) Whether either
party breached the contract.
[32] It is a
well-established principle that an application may be dismissed if an
applicant should have realised when launching
an application that
factual disputes exist.
See: Room Hire Co
(Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T) at
1162 and 1168.
[33] Where the
material facts are in dispute and there is no request for the hearing
of oral evidence, a final order will only be
granted on notice of
motion if the facts as stated by a respondent together with the facts
alleged by the applicant that are admitted
by the respondent, justify
such an order.
See: Stellenbosch
Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd
1957 (4) SA
234
(C) at 235;
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at
634.
[34]
As a general
rule an application for the hearing of oral evidence must be made in
limine and not once it becomes clear that the
applicant is failing to
convince the court on the papers.
See: Law Society,
Northern Provinces v Mogami
2010 (1) SA 186
(SCA) at 195 C.
The circumstances
must be exceptional before a court will permit an applicant to apply
in the alternative for the matter to be referred
to evidence should
the main argument fail. Neither party requested me to refer the
matter for the hearing of oral evidence.
[35] In his replying
affidavit the Applicant avers that the factual disputes are not real,
genuine or bona fide and have been created
artificially by the
Respondent. I do not agree. The allegations made by the First
Respondent are not vague and insubstantial. It
goes further than a
mere denial of the Applicant’s allegations. (I do not have to
believe the assertions of the First Respondent
in order to come to
this conclusion.)
[36] The letter
dated 17 March 2014 (annexure “F” to the Founding
Affidavit) presented the First Respondent’s
version to the
Applicant. It was at that stage already clear that the parties are
not ad idem as to the terms of the contract.
The Applicant took a
risk in approaching the court on affidavit for adjudication of the
right to possession.
[37] The factual
disputes are such that the application cannot be adjudicated on the
papers. A postponement will only result in
another court having to
wade through the papers and all the factual disputes it contain, only
to come to the same conclusion.
[38] Mr Els
correctly pointed out that a trial in this case is inevitable –
whether to claim damages as the Applicant is anticipating
or to claim
specific performance in favour of one of the parties. I agree. But
that forecast does not alter the nature and format
of the application
before me now.
[39] Mr Snellenburg
urged me to at least grant the alternative relief whereby the truck
will be held in safekeeping by the sheriff
pending further
proceedings (prayer 4.2). He argues that such relief will operate as
an interim interdict. This argument again
suffers in the face of the
multitude of factual disputes between the parties.
[40] In essence both
parties insist that they are entitled to not only possess the vehicle
but to use it. In fact, the Applicant
has been using the truck on a
daily basis since his spoliation. He never intended to keep the truck
in safekeeping pending the
finalization of the application. The last
sentence of paragraph 52 of the Founding Affidavit therefore rings
hollow. Also, safekeeping
by the sheriff is only requested as an
alternative - it was never the real intention behind the Applicant’s
approaching the
court.
[41] Both parties
are fearful that use of the truck by the other party may result in
damage to such truck. However, the First Respondent
is not requesting
safe-keeping by the sheriff. Relenting to Mr Snellenburg’s
request seems to be the easy way out of the
maize of probabilities in
this case. I prefer the robust, common sense approach to proceedings.
On the papers before the court,
the Applicant is not entitled to any
order in his favour – not against the background of the
following:
(i) failing to
rectify his own act of spoliation,
(ii) approaching the
court before replacing the truck into the possession of the First
Respondent,
(iii) approaching
the court on affidavit whilst knowing that there are various factual
disputes between the parties.
[42] The Applicant
did not make out a proper case for the alternative “interlocutory
interdict”, at least not in regard
to the balance of
convenience. Both parties agree that the Applicant sold the truck to
the First Respondent. And until such time
as a court pronounced on
the correct terms of that contract, the First Respondent is entitled
to the possession of the truck as
he had before the Applicant’s
spoliation. The First Respondent offers to pay the outstanding amount
in terms of the sale
agreement. Placing the truck in possession of
the sheriff will deny the First Respondent the undisturbed possession
that he had
before the spoliation and to which he is entitled to in
terms of my order in the counter-application.
[43] At this
juncture it may be prudent to highlight the fact that the Applicant
did not cancel the contract with the First Respondent.
In this
application he is also not requesting a declaratory order in terms
whereof the contract will be considered to be cancelled.
Paragraph 20
of his Founding Affidavit seems to indicate that he is still
considering his options. Other than a few sms messages
(that the
First Respondent denies ever receiving), the Applicant has also
failed to demand specific performance from the First
Respondent. This
matter could have been finally resolved if the Applicant acted
properly from the start (excepting for the sake
of argument his
version that it is the First Respondent who breached the contract).
[44] The Applicant
will of cause always be entitled to approach the court again in a
proper manner and in a fresh application for
any relief he feels
entitled to. I cannot pronounce on what his success will be then.
COSTS
[45] No specific
arguments were advanced regarding costs. The parties seem in
agreement that costs should follow the result. I can
find no reason
to depart from the general approach.
ORDER
[46] In the premises
the main application is dismissed with costs.
G.J.M. WRIGHT, AJ
On behalf of
applicant: Adv N. Snellenburg
Instructed
by:
Botha De
Jager
BLOEMFONTEIN
On behalf of
first respondent: Adv J. Els Instructed by:
EG Cooper Majiedt
Inc BLOEMFONTEIN
GW/spieterse