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[2011] ZAKZPHC 40
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37 Gillespie Street, Durban (Pty) Ltd v National Director of Public Prosecutions and Another (AR 22/2011) [2011] ZAKZPHC 40; 2012 (2) SACR 118 (KZP) (22 September 2011)
IN THE HIGH COURT OF KWAZULU NATAL,
PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
CASE
NO. AR 22/2011
In
the matter between:
37
GILLESPIE STREET, DURBAN (PTY) LTD
............................................
Appellant
and
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
…...........................................................................
First
respondent
ERIC
STEPHEN BURNETT
…......................................................
Second
respondent
J U D G M E N T
NDLOVU
J
[1] This is an
appeal against the judgment of Naidoo AJ handed down on 21 June 2010
in terms of which the court
a
quo
dismissed
the appellant’s claim with costs. The appeal served before us
with the leave of the court
a
quo.
[2]
The appellant company (the plaintiff in the court
a
quo
)
known as 37 Gillespie Street Durban (Pty) Ltd is the registered owner
of immovable property physically situated at 37 Gillespie
Street,
Durban
1
(“the
property” or “the building”). The property was
commercially used, in the main, to provide hotel or
accommodation
services and it traded under the name and style of Blenheim Hotel
(“the hotel”).
[3] It was common cause, however, that
the appellant only owned the property and that the business
operations conducted therein
were the responsibility of the
appellant’s tenants. Besides the hotel, a portion of the
building also accommodated a mobile
phone business which was operated
by another tenant of the appellant.
[4] On 5 February
2002 the first respondent, the National Director of Public
prosecutions (“the NDPP”) applied for and
was granted a
preservation order in terms of section 38(2) of the Prevention of
Organised Crime Act
2
(“the Act”)
in terms of which the seizure and placement of the hotel under the
curatorship of the second respondent
was authorised. The appointment
of the second respondent as
curator
bonis
(“the
curator”) to take custody and control of the building was
sanctioned in terms of the preservation order aforesaid.
[5] As a ground for
the seizure of the building, the NDPP had alleged in its application
papers that various criminal activities
were allegedly taking place
in the building and that, on that basis, the building constituted “
an
instrumentality of an offence
”
3
within the meaning
of that concept in the Act. The application for the preservation
order was made and granted on an
ex
parte
basis
4
,
with neither the appellant nor the curator having been served with
notice thereof.
[6] The preservation order was
executed on the same day of its issue, that is, on 5 February 2002,
through the co-operation and
assistance of the members of the South
African Police Service (“SAPS”) who were directed to
render such co-operation
and assistance under the preservation order.
Pursuant thereto, the members of SAPS raided the building, evicted
all the tenants
and guests and thereafter handed the building
together with all its contents to the curator who, amongst other
things, employed
a private security firm to provide a 24 hour on-site
guarding service on the property, which was strictly kept under lock
and key.
[7] The appellant
denied that the building was used as “an instrumentality of an
offence”, hence the appellant entered
an appearance to defend
the forfeiture proceedings
5
which had been
foreshadowed by the preservation order.
[8] In the meantime
the appellant launched an application for an order that the NDPP and
the curator be ordered, jointly and severally,
to pay the amount of
R350 000 to the appellant’s attorneys in order to enable the
appellant to fund the anticipated forfeiture
proceedings which,
according to the appellant, were expected to be protracted due to
alleged substantial disputes of fact arising
in the matter
6
.
The application was opposed and it came before Magid J who, after
perusing the papers and with the consent of both parties, directed
that the matter be heard on short notice only on the one question,
namely, whether the property could, in the circumstances disclosed
in
the applicant’s (that is, the NDPP’s) papers, properly be
described as “an instrumentality of an offence”
within
the meaning of the Act. Magid J, in his judgment handed down on 10
September 2002 (“the Magid judgment”) pronounced
in the
negative and, as a result, set aside the preservation order granted
on 5 February 2002. The NDPP sought and was granted
leave to appeal
the Magid judgment to the Supreme Court of Appeal.
[9] Soon after leave to appeal was
granted the appellant demanded that the NDPP return the building to
the possession of the appellant
on the basis that the preservation
order had been discharged by Magid J. However, the NDPP opined
differently. The NDPP was advised
that, by virtue of the pending
appeal, the Magid judgment was not to be given effect to. For this
proposition the NDPP was relying
on the provisions of rule 49(11) of
the Uniform Rules. Consequently, the building was not returned to the
appellant at that stage.
[10] The Supreme Court of Appeal
judgment in the matter was handed down on 13 May 2004 (“the SCA
judgment”) in terms
of which the NDPP’s appeal was
dismissed with costs, albeit on a different ground to that given by
Magid J. Eventually, at
or about the end of May 2004, the curator
handed the building back to the appellant.
[11] The following facts were either
common cause or not in dispute:
11.1 That when the building was raided
by members of SAPS on 5 February 2002 some physical damage was caused
to the building and
that the conduct of the said members, in that
respect, was the cause of the damage.
11.2
That there was vandalism and maintenance neglect of the building
after its seizure in terms of the preservation order, which
condition
caused some further physical damage to the property.
11.3
That, during the time when the property was under the custody and
control of the curator, the appellant was denied income from
rent and
other invoices payable to the appellant by its tenants in the
building, which the appellant would otherwise have received,
but for
the seizure of the property.
[12] Hence, the
appellant instituted an action in the court
a
quo
under
case number 12091/2005 against both the NDPP and the curator, albeit
it sought no relief against the curator. It is the judgment
in this
action against which the appellant now appeals to this court.
[13] Despite the fact that the NDPP
was cited in the summons as the first defendant and the curator as
the second defendant, it
was common cause that wherever reference was
made to “the defendant” in the particulars of claim, this
was a reference
only to the NDPP, and not to the curator, against
whom no relief was sought in the first place. This general reference
to “the
defendant” is evident in the succeeding
paragraph.
[14] In claiming
patrimonial damages against the NDPP in the total sum of
R1
492 134
the
appellant
pleaded, amongst other things, in its particulars of claim, as
follows:
“
20.
The defendant had throughout
its
possession of the hotel the duty to preserve the hotel properly and
maintain same. This duty arose from inter alia the following
facts
and circumstances:
The
defendant sought and obtained an order to which it was objectively
established it was not entitled to;
Such
order was to preserve the hotel so that it could be sold to achieve
the best price possible or to return the hotel to its owner
in the
same condition it had been in when it was seized.
The
defendant deprived the plaintiff of the possession and all benefit of
the property and prevented access to the property by either
itself or
through the curator it had appointed and contracted with, changing
the locks and employing security guards to do so.
21.
The defendant breached its duty of preserving the hotel in that it
allowed it to:
(a)
Fall into disrepair;
(b)
Allowed it to be vandalised and abused.
22.
The defendant acted intentionally recklessly alternatively
negligently in respect of the failure to preserve the hotel by
failing
inter alia to maintain the hotel and prevent any damage to
it.
By
reason of:
The
defendant’s seizure of the hotel which had been held to be
unlawful;
The
defendant’s refusal to return the hotel to the plaintiff
after 10 September 2002;
The
defendant’s failure to preserve the hotel by maintaining it
in good condition and preventing any damage to it;
The
defendant’s failure to return the movables seized;
The
plaintiff being deprived of all benefit and income of the hotel
especially income from tenants;
The
plaintiff having to incur wasteful expenditure.”
[15] During the
trial in the court
a
quo
the
appellant called seven witnesses and the NDPP called only one. It was
obviously the number of the appellant’s witnesses
which was
responsible for the appeal record extending to some 1200 pages.
However, as the court
a
quo
correctly
determined, only the evidence of one witness from the appellant’s
side, namely Harold Talbott, was pertinent to
the crisp issue before
the court, which is dealt with in due course.
[16] At the
commencement of the trial, counsel for the NDPP, Mr
Govindasamy
,
handed up a substantive application for separation of the issues of
liability and quantum in terms of rule 33(4), seeking that
the issue
of liability be determined first and that of quantum be held over.
This application was vehemently opposed by the appellant
(then
plaintiff) and Mr
Quinlan
,
who appeared for the appellant both on appeal and in the court
a
quo
,
referred to the application as an “ambush” in that it was
effectively a disingenuous way of bringing in a late exception
defence against the appellant’s summons. In any event, after
listening to both arguments the learned Acting Judge ruled in
favour
of granting separation. Hence, the trial proceeded on the issue of
liability only, in relation to the NDPP.
[17] The
appellant’s particulars of claim appeared somewhat ambiguous as
to whether the alleged cause of action was based
on the
actio
injuria
or
the
actio
legis Aquiliae.
The
court
a
quo
dealt
with the matter from the premise that it was an action based on
injuria
in the form of a
claim for damages arising from wrongful and/or malicious prosecution.
However, in
Minister
of Finance v EBN Trading
7
the court (
per
Magid J) observed:
“
In
Roman-Dutch law, unlike English law, there are no hard and fast
categories of delicts, nor is it necessary to label a cause of
action. In our law all delicts give rise to claims based on either
the
actio
injuriarum
or
on the
lex
Aquilia
.
Provided facts are alleged in a pleading which justify the relief
sought in accordance with the principles of our law, the pleading
will disclose a cause of action without the delict being named.
Similarly, if the evidence led in an action justifies a judgment
consistent with our legal principles no label need be attached to the
claim on which it is based.”
8
In any event, this
issue is of no consequence in the light of the ground on which I
propose to rely for the disposal of this appeal.
To that extent,
suffice it to say I am satisfied that, in the present instance, the
appellant’s claim was based on an
Aquilian
action.
[18]
There were other issues raised both in pleadings and during argument
which included the following:
18.1 Whether,
notwithstanding section 38(1) of the Act permitting it, it was
improper, in the circumstances of this case, for the
NDPP to have
brought the application for the preservation order on an
ex
parte
basis,
in the light of the decision in
National
Director of Public Prosecutions v Rautenbach & others
9
;
18.2
Whether the provisions of rule 49(11) were applicable, as to have
automatically suspended the effect of the Magid judgment
and, if so,
whether the effect thereof was to have revived the preservation order
in favour of the NDPP; and
18.3
Whether the appellant’s particulars of claim disclosed any
cause of action against the NDPP, in particular.
[19] As in every civil suit it is most
crucial to determine whether, on the pleadings, a cause of action for
which relief is sought,
is made out against the party being sued.
This preliminary determination is particularly crucial in the present
instance because,
it seems to me, the outcome thereof is potentially
dispositive of the matter. Hence, I propose to deal first with that
issue, which
is listed third above.
[20] It is trite
that an
Aquilian
action is a remedy
whereby a plaintiff is enabled to recover patrimonial loss (including
purely economic loss) suffered through
a wrongful and negligent act
on the part of the defendant.
10
It is also well
known that for a claim under the
actio
legis Aquiliae
to
be sustained it is incumbent upon a plaintiff to allege and prove,
against or on the part of the defendant, the following: (1)
Wrongful
act or omission; (2) Duty of care and the breach thereof; (3) Damages
or patrimonial loss; (4) Causation; and (5) Negligence.
[21] It was clear
from the appellant’s pleadings in the court
a
quo
that
the appellant sought to make out its case against the NDPP on the
basis of the averments contained in paragraphs 20 to 23 of
the
particulars of claim, referred to above, whereby the appellant, in
summary, alleged the following:
21.1 That the NDPP was in possession
of the property.
21.2 That the NDPP had a duty to
preserve and maintain the property properly.
21.3
That the NDPP failed in its duty to preserve and maintain the
property as required of it.
21.4
That the NDPP failed to restore the appellant to its possession of
the property immediately after the Magid judgment.
21.5 That the conduct of the NDPP
aforesaid was negligent.
[22] Mr
Quinlan
was unable, in my
view, to convince us really on what basis, in the circumstances of
this case, it could seriously be said that
the NDPP was ever in
possession or control of the property, in respect of which the NDPP
would have had a duty of care to preserve
and properly maintain.
Counsel argued from the premise that the appointment of the curator
was at the behest of the NDPP under
the
ex
parte
application
launched by the NDPP on 5 February 2002. He further submitted that,
in any event, even if the NDPP was not in physical
possession and
control of the property, the NDPP had the power to direct, or at the
least to use its good office to persuade, the
curator to restore
possession of the property to the appellant, which the NDPP had
failed to do despite several demands by the
appellant’s
attorneys in that regard. In my view, this line of argument is not
convincing.
[23] It was a hard
fact that the NDPP was never in possession or control of the property
in terms of the preservation order, but
that the curator was.
Granted, the appointment of the curator was at the behest of the
NDPP. However, this involvement of the NDPP
in the appointment of the
curator did not in any way render the curator subject and subservient
to the NDPP. What is to be borne
in mind is that upon his appointment
the curator did not become an agent of, or appendage to, the NDPP but
performed his duties
independently of the NDPP. The
curator
bonis
is
a statutory institution the incumbent of which is appointed
11
by
a court to exercise powers
12
and execute
functions
13
,
in terms of the Act. Once so appointed the
curator
bonis
acts
independently of the NDPP and for his own account. Therefore, if
anything, the curator was only responsible to the court which
appointed him and, indeed, to which the curator submitted his reports
accounting for what he had done in terms of his mandate
14
.
Therefore, the appellant’s averment that the curator was
appointed by the NDPP was factually incorrect.
15
I also observe that
when a legal controversy ensued as to the curator’s position
during the period pending appeal against
the Magid Judgment, the
curator sought legal advice not from the NDPP’s attorneys of
record (the state attorney), but from
his own private attorneys
16
.
This conduct was, in my view, a further demonstration of the
curator’s independence from the NDPP.
[24] In the present instance it
followed that since the NDPP never took possession and control of the
property, no duty of care
in relation to its preservation or
maintenance on the part of the NDPP could have possibly arisen.
Therefore, the appellant’s
pleadings did not make out any cause
of action in respect of the relief that the appellant sought against
the NDPP. On this basis
alone the appeal falls to be dismissed. In
this event, it becomes unnecessary to deal with the other issues
raised in the pleadings
and argument, which I referred to above.
[25] Concerning the question of costs,
I take regard of the fact that the success of the NDPP in this matter
is premised essentially
on an exception which the NDPP ought to have
pleaded at the outset as a legal challenge to the appellant’s
claim in the summons.
This was the appropriate step which the NDPP
ought to have taken. Instead, the NDPP filed its plea and thus
allowed the matter
to be dealt with as a trial in the ordinary
course. In the circumstances, the NDPP should only be entitled to
costs on the level
of an opposed exception.
[26] In the result, the appeal is
dismissed with costs, but such costs shall be taxed on the level of
an opposed exception.
___________________
NDLOVU
J
___________________ I agree
GORVEN J
___________________ I agree
LOPES J
Date of hearing : 10 August 2011
Date
of judgment : 22 September 2011
Appearances
:
For
the appellant : Mr PD Quinlan
Instructed by : Lyle & Lambert
Inc., Durban
For 1st respondent : Mr M Govindasamy
SC
Instructed
by : The State Attorney (KZN), Durban
1
Fully
d
escribed
as
“
the
remainder of sub 7 of lot 10234, situate in the City of Durban,
administrative district of Natal, in extent 350m²”
2
Act
No. 121 of 1998
3
Section
1 of the Act
4
The
procedure is expressly permitted by section 38(1) of the Act
5
See
section 39(3) of the Act
6
See
section 44 of the Act
7
Minister
of Finance & others v EBN Trading (Pty) Ltd
1998
(2) SA 319
(N)
8
EBN
Trading
,
above, at 324B-C
9
2005
(4) SA 603
(SCA) at 610H-I
10
Greenfield
Engineering Works (Pty) Ltd v NKR Construction (Pty) Ltd
1978
(4) SA 901
(N)
11
Section
42 of the Act
12
Section
33 of the Act
13
Section
32 of the Act
14
See
1
st
and
2
nd
Reports
(both undated) at pp. 36 and 1015 of the indexed record
15
See
paragraph 20(c) of the plaintiff’s particulars of claim, above
16
See
the curator’s letter dated 19 December 2002 addressed to
attorneys Garlicke & Bousfield, at p.448 of the indexed
record