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[2014] ZAFSHC 228
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Engala Africa (Pty) Ltd v Solar Mounting Solutions (Pty) Ltd, In Re: Solar Mounting Solutions (Pty) Ltd v Engala Africa (Pty) Ltd and Others (3717/2014) [2014] ZAFSHC 228 (12 December 2014)
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case No: 3717/2014
In the matter between:-
ENGALA
AFRICA (PTY)
LTD
...........................................................................................
Applicant
(First Respondent)
and
SOLAR
MOUNTING SOLUTIONS (PTY) LTD
........................................................
Respondent
(Applicant)
IN RE:
SOLAR
MOUNTING SOLUTIONS (PTY) LTD
…......................................................
Applicant
and
ENGALA
AFRICA (PTY) LTD
….............................................................................
1
st
Respondent
SCHLETTER
SOUTH AFRICA (PTY) LTD
….....................................................
2
nd
Respondent
SUN
EDISON ENERGY SOUTHERN AFRICA (PTY) LTD
…............................
3
rd
Respondent
CORAM:
KRUGER, J
HEARD ON:
11 DECEMBER 2014
DELIVERED
ON:
12
DECEMBER 2014
[1]
This judgment concerns an application for leave to appeal against the
order of Wright AJ given on 5 September 2014 and an application
for
contempt of court. Because Wright AJ is not available to hear
these matters, I have been asked to deal with both applications.
[2] The applicant in the main application is Solar
Mounting Solutions (Pty) Ltd. Engala Africa (Pty) Ltd is the
first respondent
in the main application (being he applicant in the
application for leave to appeal). No relief was sought against
the second
and third respondents in the main application and they do
not feature in this litigation. Schlettler South Africa (Pty)
Ltd
is the second respondent, and Sun Edison Energy Southern African
(Pty) Ltd is the third respondent. In this judgment the first
respondent is referred to as the “respondent”
[3]
On 14 August 2014 the applicant applied for a mandament van spolie
ex
parte
on an urgent basis before Moloi
J, who granted a
rule nisi
with immediate effect, determining the return day as 9 October 2014:
“
That the applicant’s
possession of the property as defined in the applicant’s
founding affidavit be restored by the
first respondent to the
applicant forthwith.
”
[4]
The order of Moloi J was served by the sheriff on Mr Pipe, the person
who had caused the spoliation. His email to the
applicant on 12
August 2014 reads:
“
Dear Scott,
Not too sure how many times you need
to e told but your ‘Lien” is rejected as its unlawful and
has no substance.
We hence do not recognise your lien.
Further to this I confirm that based
on safety concerns that have been ramping up over the past several
days Schletter and their
sub-contractors have been thrown off the
site until the safety is brought up to a standard that I am satisfied
with.
The coincidence of your ‘lien’
with this safety actions is exactly that, a coincidence. It may
even be such that
you have introduced this unlawful Lien to avoid
this safety eviction? I stress once again that safety is a
priority and will
always be my top priority and I will not comprise
on safety for a contractual issue you may be having with Schletter.
Once Schletter can show me method statements and risk
reviews for each and every snag activity, AND produced the associated
programme,
I will review the matter again but until then you are all
of site BECAUSE safety comes first!
Regards,
Jeff
”
[5]
On 3 September 2014 the respondent filed a notice to anticipate the
return day on 5 September 2014 and filed its answering affidavit.
On
5 September an answering affidavit was filed by the applicant and the
matter was argued before Wright AJ. She made
an order
confirming the rule nisi on 5 September. The respondent filed
an application for leave to appeal against the order
of Wright AJ on
that same day, 5 September 2014. On 12 September 2014 Wright AJ
furnished reasons for her order.
THE CONTEMPT OF COURT APPLICATION
[6] On 1 September 2014 the applicant filed an
application seeking an order declaring that the respondent is in
contempt of the
order granted on 14 August 2014 by Moloi J. On
that same day, 1 September 2014 the respondent filed a notice of
opposition
to the contempt application. On 2 September 2014
Wright AJ issued a
rule nisi
calling upon the respondent to
show cause why it should not be found to be in contempt of the court
order of 14 August and sentenced
to a fine of R10 000. On 7
October 2014 the respondent filed its answering affidavit in the
contempt proceedings. Applicant’s
replying affidavit was
filed on 9 October 2014. On 9 October 2014 the rule was
extended to 13 November 2014, and on that
day it was extended to 11
December 2014, the date of the hearing before me of both the
application for leave to appeal and the
contempt application.
[7]
The answering affidavit in the contempt application is made by one
Warffemius, the attorney of the respondent. It is attested
to
on 7 October 2014. He states that the pending application for
leave to appeal against the order of Wright AJ on 5 September
2014
has not yet been heard and goes on to say:
“
If the application is
successful, neither the 1
st
respondent, nor its functionaries, nor its employees could, at least
for the time being, be convicted of contempt of court for
not
complying with the order of 14 August 2014, or be sentenced to a
fine. This is so because if an appeal against the judgment
and
order of Wright AJ succeeds, there would not have been contempt of
[sic] the part of the 1
st
respondent, or its functionaries or employees.
”
He then asks the court to extend the rule nisi pending
finalising of the application for leave to appeal.
[8]
In the replying affidavit the applicant’s deponent points out
that the respondent was in the
rule nisi
ordered to furnish reasons why it should not be committed for
contempt of court. Instead the respondent places an affidavit
by its attorney before the court. The deponent to the replying
affidavit also points out that the order granted by Moloi
J on 14
August was for interim relief. The order appealed against is
the order for final relief granted by Wright AJ on 5
September 2014.
Therefore, even if the court of appeal upholds the respondent’s
appeal, it would be no reason for the
respondent not to have complied
with the interim order at the time of the interim order, which is the
contempt complained about.
The interim order, which is the
subject of the contempt application, was granted prior to the
launching of the application
for leave to appeal. It is the
final relief which is now suspended in terms of Rule 49(11) pending
the outcome of the appeal,
not the interim order which is the subject
of the contempt application.
[9] In his heads of argument Mr du Toit concedes that it
does not avail the respondent to contend that the order might
eventually
be reversed on appeal. He concedes that the order
was extant and of full force and effect when the first respondent
refused
the applicant entrance to the premises. It is not in
dispute that the order was served on Mr Pipe, the person who refused
to comply with the order. Mr Du Toit says the first respondent
accepts the principle that court orders, whether subsequently
proven
to be wrong or not, stand as enforceable orders for court,
disobedience of which may result in a finding of contempt of
court
with reference to
Culverwell v Beira
1992 (4) SA 490
(W) and
The Master v Motala
2012 (3) SA 325
(SCA). Mr
Du Toit refers to
Fakie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) par [42]. Once the applicant has proved
the order, service or notice and non-compliance, the respondent bears
an evidential
burden in relation to willfulness and
mala fides
:
“Should the respondent fail to advance evidence that
establishes a reasonable doubt as to whether non-compliance was
willful
or
mala fide
, contempt will have been established
beyond reasonable doubt.” (
Fakie
par [42]).
[10]
Mr Du Toit contends that the respondent’s representative who
refused the applicants access acted out of safety concerns
because
the plant posed dangers, as appears from emails he sent. Mr Du
Toit says the concern for safety considerations refute
inferences of
willfulness and
mala fides
.
Presumably Mr Du Toit wishes to draw the inference that the
respondent’s representative was concerned about the safety
of
the applicant’s representatives as well as his possible
liability as person being responsible for safety at the plant.
There
are only two requisites for a mandament van spolie: possession and
disturbance. It is a robust remedy that does
not enquire any
further. It is directed against self-help. Even a person who
illegally possesses is protected by the mandament.
The
protection exists even where the applicant’s possession has
been wrongful (
The Institutes of Cape
Law, Book II The Law of Things
by AFS
Maasdorp (1923) 27). As to Mr Pipe’s safety concerns,
Moloi J made the order on 14 August 2014 with the letter
of Pipe
annexed to the founding papers in which Pipe spelled out his concerns
about safety. Pipe can have no better protection
against a
potential claim than a court order directing him to allow persons
access to the premises. Further, the applicant’s
employees were no strangers to the premises, they had done work
there. The respondent’s attorneys were aware of the
order
of Moloi J, and had been sent copies thereof. Any lawyer worth
his or her salt would have told Pipe to obey the court
order, because
there is no room for other considerations in the case of a spoliation
remedy. It is apparent, from the first
line of the letter by
Pipe dated 12 August 2014, that the true dispute between the parties
is about a lien. That dispute
forms no part of the
consideration of a mandament van spolie.
[11]
The applicant has made out a case for the conviction of the first
respondent for contempt of court.
APPLICATION FOR LEAVE TO APPEAL
[12] Three grounds are listed in the notice of
application for leave to appeal and in the notice of appeal:
(i) Wright AJ erred in finding that
the applicant was in actual and physical possession of the site.
(ii) Wright AJ should have found that
Pipe acted lawfully in accordance with his obligations under health
legislation to evict applicant’s
representatives.
(iii) Wright AJ should have found
that applicant’s assertion of a lien to which it was not
entitled on 12 August 2104 in itself
constituted an act of spoliation
and that Pipe acted in counter-spoliation.
[13] In his argument on these points, Mr Du Toit
contends that there is no evidence of factual possession and exercise
of control
or use of the land on the day in question. In the
founding affidavit applicant’s deponent says it was in peaceful
and
undisturbed possession of the property. The answering
affidavit is done by the respondent’s legal adviser. She
blandly denies this allegation of possession. She does not
explain how she could have personal knowledge of whether the
applicant was in possession. (I do not overlook the fact that
Pipe made a confirmatory affidavit). What is more telling
is
that she says that after completion of its work on the site the
applicant “had no presence on the construction site but
for
access to attend to defective work. Since 25 August 2014 even
that necessity has disappeared.” The point
is that the
spoliation complained of occurred on 14 August 2014, at a time when,
according to Ms van der Merwe, the applicant still
had access to
attend to defective work, in her own words. The
causa
of
the applicant’s possession is irrelevant. Possession is
sufficient if the applicant held to establish some benefit
for itself
(
Yeko v Qana
1973 (4) SA 735
(A) at 739D-G). It
is also important to note, as pointed out by Mr Louw for the
applicant, that in its correspondence applicant
asserted its lien
against the second and third respondents, not against the first
respondent, because they were in control of the
premises as appears
from applicant’s letter of 12 August 2014, annexure “A”
to the founding affidavit in the
Spoliation Application.
[14]
The email from Pipe to Scott of the applicant dated 12 August 2014
quoted above shows that the applicant was in possession,
and is
evicted (spoliated) (“C” par 23): “...sub-contractors
have been thrown off the site...”; “…you
are all
off site because safety comes first…” The letter starts
with a reference to applicant’s alleged lien.
There is no
specific reference to any particular aspect of safety or danger. In
reply the applicant says that the fatality
which occurred on the site
was a truck driver who tried to fix the hydraulic parts of his truck,
it had nothing to do with the
plant on the site. The applicant
was in possession. There is no merit in the allegation that the
applicant was not
in possession.
[15]
As to the second ground of appeal, namely the safety considerations
for Pipe, Mr Du Toit says that one of the defences to spoliation
is
the exercise of a statutory function. As to statutory
authority, CG Van der Merwe,
Sakereg
,
2
nd
Edition (1989) 132 footnote 310 refers to authorities. Wright
AJ refers to the alleged unsafe conditions in par [27] of her
judgment. She points out that it is never explained how or in
what manner the site was unsafe. In
Sillo
v Naude
1929 AD 21
the appellant
sent cattle to the pound in terms of the Pound Ordinance. That
was not spoliation. However, in
Potgieter
v Du Plessis
1978 (1) SA 751
(NC)
the respondent called in the police, but personally took possession
of the cow (755A), which was confirmed by the court as
having been
spoliation. In the present case Pipe had no statutory right to
evict the representatives of the applicant. He
was protected
against any claim against him for failure to fulfill his safety
obligations by the court order directing him to allow
them. Further,
they were not strangers to the site. They had done work there,
and had a duty to oversee possible problems
that had arisen.
[16]
In his argument on counter-spoliation Mr Du Toit said, with reference
to paragraphs 22 and 23 of the founding affidavit in
the main
application, that what happened between 13:00 and 14:00 on 12 August
2014 was important because the allegations there
indicate the
counter-spoliation by the respondent. He says the applicant
exercised spoliation by putting up a notice saying
that no person or
entity is allowed to enter phase 1 at the project without written
consent of the applicant. It is common
cause that applicant was
asserting its lien. From Pipe’s conduct and email it is
clear that he was not acting in counter
spoliation. He does not
complain that the respondent has been spoliated by the applicant’s
notice to exercise its lien.
There is not complaint by Pipe
about the fact that he will now have to get the applicant’s
consent to enter the phase 1 area.
The reason Pipe uses for the
eviction is safety considerations. Respondent used security
guards to evict the applicant from
applicant’s site office.
[15]
As to the alleged counter-spoliation Wright AJ found insufficient
allegations to infer that Pipe acted in response to the applicant’s
notice in an act of counter-spoliation. The point is that the
applicants were entitled to be on the site, albeit not exclusively.
Pipe had no right to occupy the site to the exclusion of the
applicant.
[16]
Spoliation is a robust remedy. Once possession has been
established, the prior situation must be restored. At a
later
stage the court can properly investigate the merits of the respective
claims.
[17]
There are no reasonable prospects that another court can come to a
different conclusion.
ORDER
1. The first respondent is convicted
of contempt of court and sentenced to a fine of R10 000.
2. The first respondent is ordered to
pay the costs of the contempt application.
3. Leave to appeal against the order
of Wright AJ on 5 September 2014 is refused with costs.
_______________
A. KRUGER, J
On behalf of applicant/ 1
st
respondent:
Adv J Louw
Instructed by:
Webbers Attorneys
BLOEMFONTEIN
On behalf of respondent/applicant: Adv J du Toit SC
Instructed by:
Schoeman Maree Inc
BLOEMFONTEIN