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[2014] ZANCHC 28
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Husselman and Another v Transnet Soc Limited (413/2014) [2014] ZANCHC 28 (19 May 2014)
IN THE HIGH
COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: 413/2014
Heard
on: 26-03-2014
Delivered
on: 19-05-2014
In
the matter:
JOHAN
ARNOLD
HüSSELMAN
FIRST APPLICANT
AUDREY
JOAN
RICHARDS
SECOND APPLICANT
And
TRANSNET
SOC
LIMITED
RESPONDENT
JUDGMENT
PHATSHOANE
J:
1.
Mr
Johan Arnold Hüsselman and Ms Audrey Joan Richards are siblings.
They are the first and second applicants and have approached
this
Court for an order that Transnet SOC Limited, the respondent, restore
to Mr Hüsselman, his contractors or delegates the
right of
access to Portion 3 of Farm Riet Fonteins 185 and Portion 3 of Farm
Riet Fonteins 165 situated in the administrative district
of
Kenhardt, Northern Cape, and to remove the locks on the gates through
which access was gained.
2.
In
the second part of the relief the applicants seek an interim
interdict restraining Transnet from removing or carting-away the
crusher-dust/gravel or to deal with it in anyway or dispose of it
from the mentioned farms pending the outcome of the action already
instituted by Transnet against Hüsselman under case No:
2121/2012.
3.
The
two farms are adjoining each other and belong to Transnet. Many years
ago Hüsselman’s father, the late Mr Adreas
Jacobus
Hüsselman, owned the farms. In the 1970’s the South
African Iron and Steel Industrial Corporation (Iscor) constructed
the
Sishen–Saldanha Railway Line for the transportation of iron ore
from Sishen to Saldanha. Between 1970 and 1974 a quarry
was
established for the extraction of ballast stone on Farm Riet Fonteins
165 on the basis of the agreement between Hüsselman’s
father and Iscor in terms of which Iscor would pay per cubic meter
for the stone which was used for the construction of the railway
line. This stone was transported to Farm Riet Fonteins 185 where it
was pulverized into crusher-dust/gravel. Out of this process
a huge
stockpile of crusher-dust was created. There is a dispute of fact on
the ownership of the crusher-dust stockpile which I
revert to later.
4.
Around
1980 Transnet gave an indication to the Hüsselmans that it
intended to buy 60 hectares of the farms and to continue
extracting
the stone. Following negotiations the farms were expropriated.
Hüsselman senior had grazing rights on the farms
for a period of
three years and could thereafter exercise this right on a month to
month basis until the grazing rights were terminated
by Transnet.
Hüsselman intimates that the grazing right was transferred to
him by way of his father’s testament. This
right, he maintains,
had not been terminated by Transnet or any of its predecessors in
title and therefore still exists to date
and includes the right of
access to the expropriated land by him, his workers, other persons
and contractors authorized by him
to be on the land for any lawful
purpose.
5.
Hüsselman
says that he has used the expropriated land since 1993 for grazing
and had the undisturbed access thereto through
gates “H”,
“G”, “F”, and “E” appearing on
the aerial photograph attached to the
founding affidavit. He says a
dispute over the ownership of the crusher-dust stockpile arose
between him and Transnet in June 2012.
This prompted Transnet to
close gate “G”. He therefore approached this Court with a
spoliation application to restore
the
status
quo ante.
On
06 July 2012 Lacock J issued a Rule nisi returnable on 10 August 2012
in terms of which Transnet was called upon to show course
why an
order compelling it to give Hüsselman, his employees and
contractors the undisturbed access to the expropriated land
should
not be made final. On the return date the order was made final by
Williams J.
6.
Hüsselman
explained that during his visit to the farms on 09 March 2014 he and
his wife experienced difficulties in gaining
entry. Some of his
cattle went missing and they had to look for them on the farms. Gate
“G” was closed with a
cable tie as depicted on the photos
attached to the founding papers marked “K”. There was
also a notice on the gate
to the following effect: “
PRIVATE
ROAD. TRANSNET FREIGHT RAIL (IRON ORE LINE) PLEASE CLOSE AND LOCK THE
GATE. NO ENTRY WITHOUT VALID PERMIT. TRESPASSERS WILL
BE PROSECUTED
.”
Such a notice has never before been placed on any of the gates.
7.
Hüsselman
says that because he did not want to damage the cable tie he and his
wife climbed through the fence. They reached
the stockpile and
observed that a considerable amount of the crusher-dust had been
removed. There was a warning notice on the fence
near the stockpile
that reads: “TAKE CARE-MEN WORKING”. He says it was clear
to him that there were some operations
with regard to the removal of
the crusher-dust stockpile. Gate “F” was also locked. He
also noticed significant amounts
of loads of the crusher-dust of the
same type found on the farms on the service road which appeared ready
for use in the maintenance
and upgrading of the road.
Spoliation:
8.
The
legal principles underlying a mandament van spolie are well known.
Spoliation is the wrongful deprivation of another's right
of
possession. It aims to prevent self-help and seeks to prevent people
from taking the law into their own hands. Two requirements
should be
satisfied for an order restoring the
status
quo ante
.
The first is proof that the applicant was in possession of the
spoliated thing. The cause for possession is irrelevant. The second
is the wrongful deprivation of possession. The fact that possession
is wrongful or illegal is irrelevant, as that would go to the
merits
of the dispute. See
Ivanov
v North West Gambling Board and Others
2012
(6) SA 67
(SCA) at 75 para 19.
9.
In
Tswelopele
Non-Profit Organisation and Others v City of Tshwane Metropolitan
Municipality and Others
2007 (6) SA 511
(SCA) at 520B-C para 21 the effect of the spoliation
remedy was explained as follows:
[21]….“Under it, anyone
illicitly deprived of property is entitled to be restored to
possession before anything else
is debated or decided (
spoliatus
ante omnia restituendus est
). Even an unlawful possessor —
a fraud, a thief or a robber — is entitled to the mandament's
protection. The principle
is that illicit deprivation must be
remedied before the Courts will decide competing claims to the object
or property.”
10.
Hüsselman
contended that Transnet dispossessed him of his free and undisturbed
access to the expropriated land and is unable
to exercise his grazing
rights. He argued that Transnet despoiled him without his
consultation, consent and/or a Court order authorising
this conduct.
11.
What
arises for consideration is whether Hüsselman seeks through this
application the enforcement of his contractual right
to grazing or
whether he has been unlawfully deprived of his quasi-possession of an
incorporeal right (the right of access to the
farms for purposes of
grazing).
12.
Mr
Smit, for Transnet, contended that Hüsselman did not make out a
case for spoliation because he did not have possession or
physical
control or the
animus
to control the expropriated farms. He argued that the grazing right
Hüsselman relies on is contractual in nature and terminable
on a
month’s notice. That what Hüsselman seeks to enforce is
specific performance of his contractual right to grazing.
In any
event, it was contended, the grazing right does not amount to
possession of Transnet’s farms for the purposes of spoliation.
13.
For
this submission Mr Smit relied on
Plaatjie
and Another v Olivier NO and Others
1993
(2) SA 156
(O). That case concerned an application for the
restoration of water supply to the residents of an informal
settlement who contended
that the termination of the water supply was
an act of spoliation. The Court held,
inter
alia
,
that the applicants, in essence, ask for an order compelling the
first respondent to supply water to certain outlets (taps) which
were
situated not on any of their stands but at a distance from these
stands. That none of the applicants ever had physical possession
of
the water and their claim could therefore not be founded on loss of
physical possession. That the remedy was available for the
restoration of the lost possession of a right of servitude (ie lost
possession in the sense of
quasi-possessio
,
which consists of the actual use of the servitude) and that the
applicants had claimed the restoration of a non-servitutal right
of
having water supplied to them. That if the protection given by the
mandament van spolie were to be held to extend to the exercise
of
rights in the widest sense, then rights such as a right to
performance of a contractual obligation would have to be included,
and that would extend the remedy beyond its legitimate field of
application and usefulness.
14.
The
facts in
Plaatjie
and Another v Olivier NO and Others
(supra)
are materially distinguishable from the present matter. The issue
central to this application is Hüsselman’s
right of access
to Transnet farms which he claims to have had over the years and
whether this constitutes quasi-possession of an
incorporeal right.
15.
To
buttress his argument that Hüsselman had no physical control of
the farms Mr Smit also relies on the unreported Judgment
of this
Court per Kgomo JP involving the same parties in
Transnet
SOC Ltd v Arnold Hüsselman and Others
Case
No 1302/2012 handed down on 21 September 2012 where Transnet had
successfully approached this Court on urgency for an order
interdicting Hüsselman and others from carting-away and further
dissipating the crusher-dust deposited on the farms pending
the
determination of the action. Of particular relevance are paras 23 and
24 of that judgment where the Court held:
“
[23]
A further issue that requires short shrift is Mr Van Tonder’s
argument that even if Hüsselman is unsuccessful with
his bid
that there existed an oral agreement between Iscor (excluding Iscor’s
successors in title) and his father, Hüsselman
has nevertheless
become the owner of the crusher-dust stockpile through acquisitive
prescription by virtue of the provision of
s 1
of the
Prescription
Act, 68 of 1969
. This section provides:
“
Subject
to the provisions of this Chapter and of Chapter IV, a person shall
by prescription become the owner of a thing which he
has possessed
openly and as if he were the owner thereof for an uninterrupted
period of thirty years or for a period which, together
with any
periods for which such thing was so possessed by his predecessors in
title, constitutes an uninterrupted period of thirty
years.”
[24]
Hüsselman is free to raise this issue at the trial in due cause,
if so advised.
I cannot see
how he can claim to have been in possession of the crusher-dust
stockpile which had been on Transnet’s land since
it became the
owner of the stated land. Hüsselman had no physical possession,
which is a requirement or one of the elements
of prescription.
See
Morkels Transport (Pty)
Ltd v Melrose Foods (Pty) Ltd and Another
1972
(2) SA 464
(W) at 474A-475D; and
Morgenster
1711 (Pty) Ltd v De Kock NO and Others
[2012 (3) SA 59
(WCC)] at 63B-64E (paras 12-18).”
(With
emphasis).
16.
The
judgment of my brother Kgomo JP referred to hereinbefore was
concerned with the physical possession of the crusher-dust stockpile
and not the quasi-possession of the access road or access to the
farms. The issue of ownership of the crusher-dust is much more
relevant on the interdictory relief sought which I turn to later.
17.
Mr
Van Niekerk SC, for the applicants, contended that Hüsselman is
not attempting to enforce his contractual right to grazing
over
Transnet land but his access to the land in issue. He argued that
until 09 March 2014 Hüsselman was in possession of
the access
road to Transnet’s property.
18.
An
act of spoliation can be committed with regard to movables, immovable
and quasi-possession of incorporeals such as a right. The
right can
either be a real or a personal right that entitles the holder thereof
to some kind of use of a thing,
inter
alia
,
servitude or the right to the supply of electricity or water. See
Silberberg and Schoeman’s, The Law of Property, fifth
edition
296-297. In Joubert’s LAWSA Vol 27 at 179 para 264 the learned
author states:
“
(I)t is trite law that the
principle peculiar to spoliation has since the early days of
Roman-Dutch law, been applied to cases of
quasi-possession of
incorporeal rights. This has been followed in South African Law where
the mandament has always been held to
be available in cases
where the quasi-possession of incorporeals has been spoliated,
although the court has warned that the
application of the principles
require closer investigation and more subtle treatment. Since the
spoliatus ante Omnia
restituendus est
applies
also in the case of spoliation of quasi-possession, the applicant
need not prove his right to the incorporeal, but merely
that his
actual or factual exercise of the right has been disturbed. By
requiring the applicant to prove on a preponderance of
probabilities
that he has a right to exercise control would frustrate the very
basis of mandament van spolie..”
19.
Exclusive
possession is not a requirement for the success of spoliatory relief.
Greenberg JA puts it as follows in
Nienaber
v Stuckey
1946 AD 1049
at 1055-1056:
“
. . . (T)here appears to be
good reason for holding that exclusiveness of possession is not an
essential element. In
Nino
Bonino v De Lange
1906 TS
120
Innes CJ says (at p. 122) that ''spoliation is any illicit
deprivation of another of the right of possession which he has
whether
in regard to movable or immovable property or even in regard
to a legal right''. Wassenaer (
Practyk
Judicieel
, Chap. 14, Art.
1) says that the remedy following on spoliation is competent to
anyone who has been deprived of ''eenige goederen
of gerechtigheden''
which seems to include incorporeal rights. (See also
Voet
43.16.7; Lee's
Introduction
to Roman-Dutch Law,
3rd ed.
At p. 167.) The fact that these authorities state generally, and
without any limitation or exception, that the possession
of
incorporeal rights is protected against spoliation means that the
holders of such servitutal rights as rights of way, where
clearly the
person who holds the servitude does not have exclusive possession of
the land, are entitled to the relief against dispossession
by
spoliation. See also De Blecourt
Kort
Begrip van het Oud-Vaderlandsch Burgerlyk Recht
(5th ed. At p. 189), where he says that, in respect of the same piece
of land, there may be different rights, vested in different
persons,
all entitled to the protection of spoliation proceedings. Moreover,
apart from authority, I can see no reason why the
relief should not
be available merely because the person who has been despoiled does
not hold exclusive possession.”
20.
In
Zulu v
Minister of Works, KwaZulu, and Others
1992 (1) SA 181
(D) at 188E-I the Court pronounced:
“
In
Nienaber v Stuckey
[1946 AD 1049]
(supra
at 1055-6) Greenberg JA observed with reference to Voet 43.16.7;
Wassenaar Practyk Judicieel ch 14 art 1 and Lee's Introduction
to
Roman Dutch Law 3rd ed at 167:
'The fact that these authorities state
generally and without any limitation or exception that the possession
of incorporeal rights
is protected against spoliation means that the
holders of such servitutal rights as rights of way . . . are entitled
to the relief
against dispossession by spoliation.'
Too much should not be read into this
statement. Greenberg JA was here simply pointing out that possession
need not be exclusive
in order to qualify for protection by the
mandament. The question of what kinds of rights the possession of
which is protected
by the mandament did not arise because the
spoliatus there had clearly been in physical possession of the land.
It is true that
Wassenaar states in the passage referred to that the
mandament van spolie may be obtained in any case of a spoliation of
'enige
goederen of gerechtigheden' but I would not conclude from this
bald statement that the dispossession of just any right can be made
the subject of spoliation proceedings.
If the protection given by the
mandament van spolie were to be held to extend to the exercise of
rights in the widest sense then
supposedly rights such as the right
to performance of a contractual obligation would have to be included
- which would be to extend
the remedy beyond its legitimate field of
application and usefulness..”
21.
The
facts in
Nienaber
v Stuckey
supra although somewhat distinguishable have striking similarities to
the present matter. A reading of the judgment indicates that
the
Court considered access through the locked gate as an incident of the
applicant's physical possession of the land. In
that case the
appellant alleged that he hired a portion of a farm from the
respondent for three years. He had proved that under
a contract he
had the right to plough and cultivate the piece of land although the
respondent was entitled to exercise such other
rights over the land
as would not derogate from the appellant’s rights. He averred
that he had been in peaceful and undisturbed
possession of the land
from the commencement of the lease until he was despoiled through the
closure of the only gate giving him
access to the land. The Court
held that he had made out a case that the closing of the gate had
deprived him of possession of the
property.
22.
It
is not in dispute that Hüsselman had undisturbed access to the
farms for grazing purposes since the 1980s. The fact that
his grazing
right is terminable on a month’s notice is not an issue of
substance. Transnet did not gainsay the allegation
that it locked
gate “G” and “F” which Hüsselman used to
gain entry onto the farms. It should be mentioned
that on the first
day in which this matter was set down Transnet sought a postponement
on the basis that it was not responsible
for the spoliatory acts. I
must also add, in all fairness to Mr Smit, that he was not
representing Transnet at the time. What Mr
Smit argued is that
Hüsselman still had access through the unfenced portions of the
farms and gate “E” and maintained
therefore that he
cannot claim to have been despoiled. Hüsselman states that for
him to access gate “E” he has
to go through gate “G”
which is currently barricaded by means of a cable tie. In
Nienaber
v Stuckey
supra at 1059 Greenberg JA states:
“
It was also contended on
respondent’s behalf that inasmuch as there was another gate
which would give the appellant access
to the land, the closing of the
one gate did not deprive him of possession…..Mr Grobler
contends that the remedy lies not
only when there is a deprivation
but also when there is a disturbance of possession, and he refers to
Wassenaer
(op
cit. Ch. 13, Art 1), who says that the remedy is available “
als
iemand binnens jaars geraakt of geturbeert is uit de
possessive
.” The
words “
geraakt of
geturbeert
” seem to
connote anything which touches or affects or disturbs the possession
and not to require complete deprivation. But
I do not think that this
point need be pursued as it is clear that the appellant was in
possession of the right of access through
this gate of which he has
been deprived, and the remedy is there available.”
23.
Lastly,
Mr Smit argued that the application should fail because it is not
urgent. He contended that Hüsselman did not make
out any case
that the sheep do not have feed or that the provision for feed cannot
be supplied. In my view, the urgency insofar
as spoliation is
concerned is not persuasive but nevertheless the matter is still semi
urgent regard being had to the interdictory
relief in which it is
averred that Transnet is in the process of dissipating the
crusher-dust to the detriment of the applicants.
24.
On
the whole I am satisfied that Hüsselman has the required
possession of access to the farms. There is nothing in the papers
suggesting that the deprivation of this possession through the
locking of the gates had been lawful. It follows that Hüsselman
has fulfilled the requirements of the mandament van spolie remedy and
must succeed on this leg of the application.
The
interdict:
25.
As
already highlighted, there is a dispute of fact on the ownership of
the crusher-dust/gravel stockpile. Hüsselman says after
1974
Iscor did not conduct any further operations on the farms and left
the crusher-dust in one stockpile behind without laying
any claim
thereto. He explained that from then on his father openly, as
if he was the owner of the crusher-dust, had exclusive
control and
possession of the crusher-dust and in his absolute and exclusive
discretion sold that to third parties, donated it
and used it. He
also made the crusher-dust available to the South African Transport
Services, the predecessor in title of Transnet,
for the maintenance
of the road which runs parallel to the railway lines because his
father was allowed to use the road in the
execution of his farming
operations. Hüsselman intimates that when Transnet required the
crusher-dust it sought permission
from his father who would make it
available to it. He says that Mr Van Dorp of Transnet on occasion
also sought permission from
Hüsselman to cart-away the gravel.
26.
Hüsselman
alleges that he became the owner of the crusher-dust and used it in
the same way as his father did following his
father’s passing
in 1993. His sister, the second applicant, explained that it
came to her knowledge around 17 March
2014 that she may probably be
the owner of half of the crusher-dust. Hüsselman says he brought
a counterclaim in the action
proceedings for a declarator that he is
the owner of the crusher-waste. He says that although this was based
on prescription he
intends amending his papers to include a claim of
ownership of the stockpile along the lines of what is set out in the
preceding
paragraph.
27.
Mr
Van Niekerk argued that the applicants established a
prima
facie
right to ownership of the crusher-dust or to lay a claim thereto
which right is at the moment being infringed by Transnet. He
contended that the stockpile is movable property and could not have
been expropriated. He further argued that the applicants have
at
least a ‘triable issue’ capable of protection by way of
an interim interdict regard being had to the disputed ownership
of
the stockpile.
28.
It
was further argued on behalf of the applicants that, by its earlier
application, Transnet sought to prevent Hüsselman from
removing
the crusher-dust on the basis of the pending action, but it has
resorted to the same activity of carting-away the crusher-dust.
The
applicants contended that this poses the same potential prejudice to
them in the event they succeed in the action. They further
argued
that if Transnet continues to cart-away the crusher-dust without any
independent record keeping of the quantities removed
they stand to
suffer irreparable harm because it would be difficult for them to
compute or quantify the damages suffered as a result
of the removal
of the crusher-dust by Transnet.
29.
Mr
Van Niekerk contended that Transnet did not say if it is a holder of
a right or permit, as envisaged in s 5A (b) of the Petroleum
and
Mineral Resources Development Act, 28 of 2002, to remove the
crusher-waste. This latter issue was not raised in the founding
papers to enable Transnet to answer thereto.
In
motion proceedings, the affidavits constitute both the pleadings and
the evidence. The issues and averments in support of the
parties'
cases should appear clearly therefrom. See
Minister
of Land Affairs and Agriculture and Others v D & F Wevell Trust
and Others
2008
(2) SA 184
(SCA) at 200 para 43.
30.
Transnet
maintains that Iscor owned the crusher-dust since 1977 and never
abandoned same. Iscor’s assets and crusher-dust
were
transferred to it and utilized by it to maintain the roads. In its
deposition it pressed that the crusher-dust was available
to it
because it was the owner thereof and denies that it sought permission
from the Hüsselmans to remove the crusher-dust.
It intimates
that the Hüsselmans never acquired ownership of the waste-dumbs
or dealt with it as if they were the owners thereof.
It further says
that it is aware that Hüsselman sold the crusher-dust to third
parties unlawfully and this, it says, prompted
it to bring the
application to restrain Hüsselman from doing so pending the
action.
31.
Where
the right upon which an interim interdict is sought is not clear, the
position is as follows according to
Eriksen
Motors (Welkom) Ltd v Protea Motors, Warrenton, and Another
1973
(3) SA 685
(A) at 691C - F:
“
The granting of an interim
interdict pending an action is an extraordinary remedy within the
discretion of the Court. Where the
right which it is sought to
protect is not clear, the Court's approach in the matter of an
interim interdict was lucidly laid down
by Innes JA in
Setlogelo v Setlogelo
1914 AD 221
at 227. In general the requisites are -
(a)
a right which, ''though prima facie established, is open to some
doubt'';
(b)
a well grounded apprehension of irreparable injury;
(c)
the absence of ordinary remedy.
In exercising its discretion the Court
weighs, inter alia, the prejudice to the applicant, if the interdict
is withheld, against
the prejudice to the respondent if it is
granted. This is sometimes called the balance of convenience.
The foregoing considerations are not
individually decisive, but are interrelated; for example, the
stronger the applicant's prospects
of success the less his need to
rely on prejudice to himself. Conversely, the more the element of
''some doubt'', the greater the
need for the other factors to favour
him. The Court considers the affidavits as a whole, and the
interrelation of the foregoing
considerations, according to the facts
and probabilities. . . .”
32.
The
question of ownership of the crusher-dust stockpile in issue is not
new. It was raised before my brother Kgomo JP under case
No 1302/2012
referred to earlier. On this issue the learned Judge held:
“
Transnet has attached the Title
Deed that shows that they are the owners of the land on which the
stockpile rests. The presumption
is that it is the owner. The
gravel/crusher-waste/mineral or by-product was excavated/extracted
from its land. Where else should
it have been deposited? Whoever
claims ownership of the crusher-waste must prove it. At this stage
annexure FA8 seems to demonstrate
the converse.
”
33.
For the
sake of completeness Kgomo JP made an order in the following terms:
“
1. The
first respondent (Arnold Hüsselman), the second respondent
(Martin & East (Pty) Ltd) and
the third respondent (Van Zyl
Blasting-Earthworks CC), and any contractor who operates through the
first respondent, are hereby
forthwith interdicted and restrained
from removing and dissipating the crusher-waste or crusher-dust
material stockpile from the
applicant’s (Transnet SOC
Limited’s) property (Portion 3 (of portion1) of the farm Riet
Fonteins 165, held under Deed
of Title No T7570/93 and Portion 4 (a
portion of portion 1) of the farm Riet Fonteins 165 held under Deed
of Title 907/93 pending
the determination of action proceedings to be
instituted within 30(thirty) days from date of this order.
2. The costs of this
application shall be costs in the aforementioned action proceedings.”
34.
In
my view there is an element of some doubt cast upon the applicants’
right to lay claim to the ownership of the crusher-dust.
I am not
swayed that the applicants have strong prospects of success. To my
mind, for them to succeed with this application, they
have to satisfy
the remaining prerequisite of an interim interdict. What stands out
is the prejudice to be suffered by the parties
in the event the
interdict is or is not granted. On this aspect, on the applicants’
own version, Transnet has used the gravel
for several decades albeit
with the Hüsselmans’ consent.
35.
Transnet
contended that it be allowed to remove the crusher-dust as and when
required because its situation differs from that of
the applicants.
To this end it explained that the balance of convenience favours it
because it has built roads from Sishen to Saldanha,
a route of some
800 km. These roads service the railway line. The roads are in need
of constant maintenance and repair and the
crusher-dust is used for
that purpose. The road in the area around the farms is resurfaced by
using the crusher-dust obtained from
the farms. It states that the
nearest alternative supplier of the crusher-dust to the farms is 300
km away. In the event it is
interdicted from removing the
crusher-dust it would have to travel that distance to obtain the
crusher-dust when the supply is
readily available at its doorstep. It
argued that this would be prohibitively expensive and time consuming.
36.
Not
much is being said by the applicants regarding the balance of
convenience except the bare statement that it favours them. They
further say that Transnet cannot claim prejudice because since 2012
up to February 2014 it did not remove any crusher-dust from
the
farms.
37.
All
things considered I am of the view that the balance of convenience
weighs heavily in favour of Transnet on this aspect. In any
event,
the applicants have an alternative remedy in the form of damages
should they succeed in the pending action. Transnet tendered
to keep
full records of the grade and quantity of crusher-dust removed from
time to time. Mr Van Niekerk argued that one cannot
let the wolf
watch over the sheep. That may well be but I am unable discern how
proper record keeping cannot be attained. It matters
not that the
applicants are resident far away from the farms as Mr Van Niekerk
submitted from the bar. They clearly have some sort
of farming
operations around the farms. In my view the ball is in the
applicants’ court to ensure that proper recording of
the
amounts of the crusher-dust removed is maintained. Accordingly the
application for an interim interdict should fail.
Costs:
38.
This
matter was brought on urgency on 19 March 2014. On this day Transnet
brought an application for postponement which the applicants
opposed.
In order to afford Transnet the opportunity to file its answering
affidavit I postponed the matter to 26 March 2014. The
issue of costs
stood over for later determination. In
Persadh
and Another v General Motors South Africa (Pty) Ltd
2006
(1) SA 455
(SE) at 459 para 13
the
principles applicable to an application for a postponement were
summarised as follows:
“
[13] The following principles
apply when a party seeks a postponement. First, as that party seeks
an indulgence he or she must show
good cause for the interference
with his or her opponent's procedural right to proceed and with the
general interest of justice
in having the matter finalised; secondly,
the court is entrusted with a discretion as to whether to grant or
refuse the indulgence;
thirdly, a court should be slow to refuse a
postponement where the reasons for the applicant's inability to
proceed has been fully
explained, where it is not a delaying tactic
and where justice demands that a party should have further time for
presenting his
or her case; fourthly, the prejudice that the
parties may or may not suffer must be considered; and, fifthly, the
usual rule
is that the party who is responsible for the postponement
must pay the wasted costs.”
(Footnotes
omitted)
In my view Transnet was
not afforded sufficient time to file its answering affidavit. Its
application for postponement was justified
and should not attract an
order of costs against it.
39.
Insofar
as costs of the main application are concerned each party has
achieved partial success. Under these circumstances it is
just and
fair that each party bear its own costs.
40.
In the
result the following order is made:
ORDER:
Transnet SOC Limited,
the respondent, is ordered to restore to Mr Johan Arnold Hüsselman,
the first applicant, his workers,
contractors or any of his
authorised persons a right of access to the immovable property,
known as Portion 3 of the Farm Riet
Fonteins 185 and Portion 3 (a
Portion of Portion 1) of the Farm Riet Fontein 165.
The respondent is
ordered to remove all the locks and/or barricades to the gates which
give the first applicant access to the
immovable properties referred
to in paragraph 1 of this order.
In the event that the
respondent refuses to comply with the terms set out in paragraph 1
and 2 of this order the sheriff/deputy
sheriff of the district of
Kenhardt, Northern Cape, is hereby directed and authorized to remove
the locks and/or barricades to
the gates.
The prayer for an
interim interdict pending the outcome of the action under case No
2121/2012 restraining the respondent from
removing or carting-away
the crusher-dust/gravel from Portion 3 of the Farm Riet Fonteins 185
and Portion 3 of Farm Riet Fonteins
165 situated in the
administrative district of Kenhardt, Northern Cape, is dismissed.
Each party is to bear
its own costs.
M.V.
PHATSHOANE
JUDGE
NORTHERN
CAPE HIGH COURT
On behalf of the Applicants
Adv J.G Van Niekerk SC
Instructed by
Elliott Maris Wilmans & Hay
On behalf of the Respondent
Adv M. Smit
Instructed by
Engelsman Magabane Inc