RMD Kwikform South Africa (Pty) Ltd v Department of Transport Roads & Public Works (629/2009) [2009] ZANCHC 22 (24 April 2009)

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[2009] ZANCHC 22
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RMD Kwikform South Africa (Pty) Ltd v Department of Transport Roads & Public Works (629/2009) [2009] ZANCHC 22 (24 April 2009)

Reportable:
YES / NO
Circulate
to Judges: YES / NO
Circulate
to Magistrates: YES / NO
Circulate
to Regional Magistrates: YES / NO
IN THE HIGH COURT OF
SOUTH AFRICA
(Northern Cape
Division)
Case
Nr:
629/2009
Case
Heard:
08/04/2009
Date
delivered:
24/04/2009
In
the matter between:
RMD
Kwikform South Africa (Pty) Limited APPLICANT
and
The
Department of Transport Roads &
Public
Works RESPONDENT
JUDGMENT
Henriques
AJ:
This is an urgent
application in which the Applicant sought the following relief :-
”(1) Dat
de Agbare Hof gelas dat hierdie aansoek as een van dringendheid
aangehoor word in terme van Reël 6(12) van hierdie
Agbare Hof se
reëls.
Dat
die Respon
dent,
of sy verteenwoordiger, beveel word om die Applikant toe te laat om
toegang te hê tot die bouperseel van die Kimberley
Konferensie
Sentrum om die Applikant se vormwerk en steierwerk toerusting soos
vervat in Aanhangsel A hiertoe (hierna “die
eiendom”)
onmiddellik op die bouperseel van die Kimberley Konferensie Sentrum
in sy besit kan neem en die eiendom vanaf die
bouperseel van die
Kimberley Konferensie Sentrum kan verwyder.
Dat
die koste van hierdie aansoek deur die Respondent betaal word.
”
The notice of motion
provided that in the event of the Respondent wanting to oppose such
application it had to serve and file
its notice of opposition by
15h00 on 6 April 2009 and thereafter any opposing affidavit by 14h00
on 6 April 2009.
The papers in this
matter were served by the Sherriff on the offices of the State
Attorney at 8h30 on 7 April 2009 and on the
Respondent personally at
8h15 on 7 April 2009. The day before being 6 April 2009, at 15h34
and 15h45 respectively a set of papers
had also been served on the
offices of the State Attorney and the Respondent, however these set
of papers did not have the annexures
to the Founding Affidavit
attached to them.
In
es
sence
the Applicant sought a final interdict for the return of its
formwork and scaffolding based on the
rei
vindicatio.
This may have been to avoid the consequences of having to provide
the Respondent with 72 hours notice in terms of provisions
of the
General Law Amendment Act, No 62 of 1955 as it would have been
obliged to comply with the provisions of the Act in the
event of its
seeking the order in the form of a Rule Nisi.
The Applicant claims
ownership of the formwork and scaffolding based on the agreement
concluded with Khumbula Property Services.
The
deponent to the founding affidavit
,
Melt Johannes Malan, avers that the Applicant was engaged in the
business of hiring and sometimes the sale of formwork and
scaffolding. Khumbula Property Services had contacted it to hire
formwork and scaffolding as it was engaged in the construction
of a
conference centre for the Respondent in Kimberley. In keeping with
its business practice, Khumbula Property Services then
completed an
application for credit, a suretyship attached to the credit
application form as well as a contract for the hire
of the formwork
and scaffolding which also contained the terms and conditions of the
hire agreement.
An
illegible copy of the credit application form together with the
terms and conditions of the hiring contract was annexed to
the
papers as annexure MJM 1.
A clear copy was handed in at the hearing of the matter.
The
Respondent also complained about the fact that an illegible copy of
the terms and conditions was annexed to the papers they
were
provided with. A request by the Respondent’s representative to
obtain a clear copy of such terms and conditions was met
with no
response. The Applicant’s attorney’s attitude was that a
legible copy would be provided at the hearing of the matter.
Thus
at the time of the drafting of the Opposing Affidavit the Respondent
was not in possession of a clear and legible copy of
the terms and
conditions of the hire agreement.
In
further support of its claim that it was the owner of the formwork
and scaffolding on the premises the Applicant relies
specifically
on the provisions of clauses 33, 38 and 42 of the terms and
conditions.
Clause
33 of the agreement provides as follows: “
In
respect of Equipment for hire the Equipment shall at all times
remain the property of the Owner and the Customer shall have
no
rights to the Equipment other than as hirer and the Customer shall
not do or permit or cause to be done any matter or thing
whereby the
rights of the Owner in respect of the Equipment are or may be
prejudicially affected
”.
Clause
38 of the agreement deals with the obligation to insure the
Equipment. Clause 42 deals with termination of the agreement
between
the parties. Clause 42 (c) provides as follows; “
In
the event that the Customer fails to return the Equipment within 14
(fourteen) days of being obliged to, the owner may forthwith
and
without notice retake possession of such Equipment and for this
purpose shall be entitled freely to enter into and upon any
premises
occupied by or under the control of the Customer. In the event that
the Equipment is situated on premises which are
occupied or
controlled by a third party, the Customer shall ensure that it has
made sufficient arrangements with the third party
to enable the
owner to enter onto such premises in order to exercise its rights
under this Clause to retake possession of the
Equipment. Without
prejudice to the Owners rights to claim damages the Customer shall
on termination or repudiation of that
Agreement become immediately
liable to pay to the Owner all arrears of Rental, any other amounts
due in accordance with these
Conditions and any other amounts due
and payable and any costs and expenses incurred by the owner in
locating, repossessing,
and recovering and restoring the Equipment
or collecting payments due under the Contract.”
In
the definition section of the terms and conditions “Owner” is
defined as meaning “
RMD
Kwikform South Africa (Pty) Ltd
”.
The
Applicant alleges
that
these terms and conditions were accepted by Khumbula Property
Services at the time of conclusion of the agreement of hire.
The
credit application form was signed by the financial officer of
Khumbula Property Services, Akhona Ntshiqa on 15 July 2008.
The
Applicant
avers that credit facilities were extended to Khumbula Property
Services and that the written agreement of hire was
signed by the
parties and to this end it then began hiring formwork and
scaffolding to Khumbula Property Services. It avers
that the
formwork and scaffolding which consisted of heavy steel was
delivered to the building site at 10 West Circular Street,

Kimberley, on request of Khumbula Property Services.
At
various times between October 2008 and November 2008 various
deliveries of such formwork and scaffolding were made to the
building site. Subsequently Khumbula Property Services notified the
Applicant that it no longer required the formwork and scaffolding

and as a result the Applicant made the necessary arrangements to
have its equipment removed from the building site.
This occurred at various times namely on 12 February 2009, 19
February 2009 and 16 and 17 March 2009.
The
Applicant goes on further to explain annexure MJ
M
2 annexed to the Founding Affidavit which constitutes the record of
equipment which was delivered to the building site under
the
reference “DL” and the equipment which was returned and
recovered from the building site as “BR”. Malan explains
that,
having regard to page 3 of such document, there are six columns
reflected therein which reflects the formwork and scaffolding

belonging to the Applicant which is still on the building site in
Kimberley. At no stage prior to deposing to this affidavit
was the
Respondent provided with a similar record or explanation and
consequently not made aware of the specific equipment delivered
on
site or in respect of which the Applicant had reacquired possession.
The
Applicant avers that on 16 and 17 March 2009 it gained acces
s
to the building site and was able to remove certain of the formwork
and scaffolding without hindrance from anybody. These arrangements

were made with the representatives of Khumbula Property Services.
However, on 20 March 2009, after further arrangements had
been
concluded with Khumbula Property Services, the Applicant’s staff
were unable to enter the building site to remove further
of the
formwork and scaffolding. The driver of the vehicle was told that
he could not enter the premises and this was on the
instructions of
the Respondent.
Subsequently
Rudi Botha, a
n
employee of the Applicant, was advised telephonically by Mr M
Motingoe of the Respondent that the building site was closed and

that no further formwork and scaffolding could be removed from the
building site. This according to the Applicant was after
Rudi Botha
had explained to Motingoe that the Applicant was the owner of the
equipment that was on the site. Motingoe advised
Botha to provide
proof of ownership of the formwork and scaffolding which it wanted
to remove from the building site.
The
Applicant avers subsequently
,
but does not state the date it faxed such documents, indicating
ownership to Motingoe. It indicated that it subsequently followed

this up with a telephone call to Motingoe, but does not state the
date upon which such telephone call was made to Motingoe.
However,
Motingoe refused to allow Applicant access to the building site to
remove its equipment. Motingoe, the Applicant says,
responded by
indicating that the Applicant should get a Court order to allow it
to remove the equipment from the building site.
As
a result of what it termed
to
be the unreasonable attitude of Motingoe the Applicant then
consulted with his attorneys who sent annexure MJM 4 to the
Respondent
on 2 April 2009. Motingoe responded to such letter by
way of annexure MJM 5 on 3 April 2009.
The
Applicant makes much of this letter and indicated that such letter
confirms what it termed the Respondents obstructive and
unreasonable
attitude to its request for the return of its equipment. The
Applicant avers that the replacement value of its
equipment is some
R1 121 103.49 and that there is no adequate security on the building
site. In Malan’s experience the formwork
and scaffolding which is
on the premises can easily be removed. In addition, as a result of
this equipment lying in disuse on
the building site, it is unable to
generate an income and hire out the equipment. In reply Malan
estimated that the Applicant
was losing the sum of R 120 000,00 per
month.
During
the course of argument Adv Klopper for the Applicant indicated that
insofar as the aspect of urgency was concerned he
was specifically
relying on paragraphs 21, 25 and 29 of the Founding Affidavit. In
essence he was of the view that there was
inadequate security on the
building site and this was indicated by the fact that the
Applicant’s employees were able to gain
access to the site on 16
and 17 March 2009 and remove some of the Applicant’s equipment.
Secondly, the fact that the formwork
and scaffolding could easily be
removed and carried out and thirdly that it was losing approximately
R120 000,00 a month in that
it was unable to hire out the formwork
and scaffolding.
I
must add that the matter was initially enrolled for hearing at
10h00. Subsequently I was advised by Adv Klopper that he had
just
received the Respondent’s opposing affidavit and needed time to
consider what his attitude to same was. I was then advised
by the
Applicant’s representative that they wished to respond to such
affidavit and file a reply. Such reply was delivered
to me just
before lunch and the matter proceeded at 14h00.
The
Respondent in opposing the application raised 3 preliminary issues
namely - the fact that the application was not urgent,
secondly
the non-joinder of Khumbula Property Services as a party to the
application and thirdly requested me to strike out
certain portions
of the founding affidavit on the basis that same constituted
hearsay.
T
he
Respondent confirmed that it had concluded a building contract with
Khumbula Property Services for the building of the Kimberley

Conference Centre. Such building contract was regulated by the
Joint Building Contracts Committee (JBCC) and the JBCC issued

standard contract forms which were incorporated into all building
contracts.
At
the hearing of the matter I was provided with an example of a
principal building agreement together with the voluminous tender

documents.
In
essence
the Respondent’s defence to the application was the following:
In
terms of Clause 36 of the principal building agreement, the
building contract with Khumbula Property Services was cancelled.
A
copy of the letter of cancellation is annexed as MS1 to the
opposing affidavit.
Such
cancellation was done pursuant to the provisions of Clause 36 of
the principal building agreement. Clause 36 of the principal

building agreement provides for cancellation by an employer where a
contractor is in default of the agreement.
The
agreement defines a contractor as … “
the
party contracting with the employer for the execution of the works
as stated in schedule.
”
An employer is defined as “
the
party contracting with the contractor for the execution of the
works as stated in the schedule
.”
It was common cause that the works referred to the building of the
Kimberley Conference Centre.
Material
and goods is defined as “
material
and goods delivered to the contractor or his subcontractors for
inclusion in the works whether stored on or off the
site or in
transit but not yet part of the works.”
Where
the agreement is cancelled in terms of Clause 36 the following
further conditions apply namely, Clause 36.5.1 provides
that the
employment of the contractor shall be cancelled and execution of
the works shall cease. The contractor shall vacate
the works and
the site subject to the provisions of clause 36.5.6. The
contractor shall remain responsible for the works in
terms of
clause 8.1 until possession is relinquished to the employer.
Clause
36.5.6 further provides as follows
:
”
The
employer may use the contractors material and goods, temporary
buildings, plant and machinery on the site for proceeding
with the
works.”
I
n
essence the Respondent averred that it had a right of retention of
the formwork and scaffolding in terms of the provisions
of clause
36.5.6.
The
Respondent further confirms the telephonic conversation which took
place between Motingoe and Botha of the Applicant. The
Respondent
denies that it was obstructive and further denies that it advise
d
the Applicant to obtain a Court Order. It was unaware of the
contract between Khumbula Property Services and the Applicant.
The
Respondent avers that
certain
documents were faxed by the Applicant on 25 March 2009. These
documents are annexed as MS 2. According to the Respondent
the fax
bore the letterhead of RMD, an illegible application for credit made
by Khumbula Property Services, a long list of equipment
and an
acknowledgment of debt signed by Khumbula Property Services. One is
unable to determine from the documents the identity
of the person
who sent the fax and no covering letter was attached explaining the
relevance of the documents.
The
Respondent confirms that Botha subsequently telephoned to enquire
whether the fax had been received. Motingoe confirmed receipt
of the
fax but indicated that he could not make sense of the documents as
no letter of explanation was attached. Hence he requested
Botha to
send a letter explaining the Applicant’s claim.
The
copy
of
the credit application sent through via fax to the Respondent
differs markedly from that put up by the Applicant in its founding

papers. Apart from the terms and conditions being illegible, this
application for credit appears to have been made on 16 July
2008.
In addition annexed to such credit application are documents which
are referred to as a picking list.
It
was for this reason that
Motingoe
wrote annexure MJN 5 to the Applicant’s attorneys in which he
asked that the Applicant stipulate how according to him
its
ownership to the equipment was established, as submitting invoices
made out to Khumbula was insufficient for such purposes.
In fact the
letter specifically requests the Applicant to “…..
explain
their claim to the Head of Department, which claim may be supported
by the documents they have sent to me. It has never
been the
attitude of the department to deny any party access to equipment to
which they are lawfully entitled, but such title
must be properly
established and communicated.”
The Applicant
responded by way of MJM7 on 3 April 2009 at 15:22.
REI VINDICATIO
In order to succeed in
such an application an applicant must allege and prove:-
ownership of the
item/s in question;
that
the
respondent was in possession of the item/s at the time of the
commencement of the application;
that the item/s in
question is still in existence and clearly identifiable.
See:
Silberberg and Schoeman’s, The Law of Property, 5
th
Edition at pages 243 and 244.
35.
In
DREYER
AND ANOTHER NNO v AXZS INDUSTRIES (PTY) LTD
2006 (5) SA 548
(SCA)
,
Brand
JA held as follows at paragraph 4 ….”
A
party who institutes the rei vindicatio is required to allege and
prove ownership of the thing. Since one of the incidents of
ownership
is the right to possession of the thing, a plaintiff who establishes
ownership is not required to prove that the defendant's
possession is
unlawful. In that event, the onus to establish any right to retain
possession will rest on the defendant, as long
as the plaintiff does
not go beyond alleging ownership. But if the plaintiff fails to
establish ownership, the possessor is to
be absolved. This principle
was recognised in Voet 6.1.24 and has been consistently applied by
our Courts, at least since Kemp
v Roper NO
(1886) 2 Buch AC 141
(at
143) which was decided in 1886. (See also Ruskin NO v Thiergen
1962
(3) SA 737
(A) at 744; B Chetty v Naidoo
1974 (3) SA 13
(A) at 20A
- C; Van der Merwe Sakereg 2 ed at 347 et seq; Badenhorst, Pienaar
and Mostert Silberberg and Schoeman The Law of Property
4 ed at 255
et seq.)”
The
onus rests on an applicant to prove ownership on a balance of
probabilit
ies.
The
Applicant has succeeded in discharging the onus on a balance of
probabilities of proving it is the owner of the formwork and

scaffolding. I come to this decision based on my reading of the
terms and conditions together with annexure MJM2 and the explanation

provided in the papers of MJM2.
I now propose to deal
with the issues raised by the Respondent in opposition to the
application.
NON JOINDER OF
KHUMBULA PROPERTY SERVICES
Having
regard to the principles in cases that I have considered regarding
joinder of parties it would appear that same is dependant
on the
extent to which the order I would make may affect the interests of
third parties.
The
test as highlighted in Erasmus Superior Court Practice is whether or
not a party has a
direct
and substantial interest
in
the subject matter of any order that the Court might make, or such
an order cannot be sustained or carried into effect without

prejudicing that party, unless the Court is satisfied that he or she
has waived his or her right to be joined.
I am of the view that
Khumbula Property Services does not have a direct and substantial
interest in the subject matter of this
litigation nor is it a party
that may be affected prejudicially by any judgement I may make in
this matter. This view is reinforced
by having regard to the
Replying Affidavit of the Applicant to which is attached a letter
from Khumbula Property Services. Such
letter is dated 8 April 2009
and reads as follows.
“
Re:
Collection of materials on KCC site
This
is to certify that the materials on the abovementioned project in
Kimberley is not currently in use and can be collected by
yourselves
with immediate effect.
”
There was therefore no
need to join them in these proceedings.
APPLICATION TO
STRIKE OUT HEARSAY EVIDENCE
In
urgent matters a court is entitled to admit hearsay
evidence
in an affidavit provided that the belief in the truth of such
affidavit are stated as well as the source of such information.
It
was never disputed by the Respondents that the Applicant was at
various times after the cancelling of the contract with Khumbula

Property Services able to remove certain of the formwork and
scaffolding. In addition neither was it disputed that the
Applicant’s
driver was denied access to remove the rem
ainder
of the formwork and scaffolding.
It is for this reason
that I cannot uphold the second point in limine.
URGENCY
The
principles which an applicant ought to consider when bringing an
urgent application were highlighted in the matter of
LUNA
MEUBEL VERVAARDIGERS (EDMS) BPK v MAKIN AND ANOTHER (t/a MAKIN'S
FURNITURE MANUFACTURERS)
1977 (4) SA 135
(W).
These
principles have been consistently followed by our Courts.
During
the course of argument Advocate Knoet
se
for the Respondent referred me to an unreported judgment in the Free
State Provincial Division of
PALO
PHANUEL MODIBEDI EN DEPARTEMENT VAN KORREKTIEWE DIENSTE,
Case
number 2958/2005 delivered on the 4 August 2005. In such judgment
Kruger J dismissed the application with costs based on
inter alia
the aspect of urgency. Having regard to such judgment it would
appear the Applicant was also in the wrong forum which
may have also
influenced him in dismissing the application.
Our
courts have held that urgency can exist in relation to commercial
matters. See in this regard
TWENTIETH
CENTURY FOX FILM CORPORATION V ANTHONY BLACK FILMS (PTY) LTD
1982
(3) SA 582
(W)
and
BANDLE
INVESTMENTS (PTY) LTD V REGISTRAR OF DEEDS
2001 (2) SA 203
(SECLD).
For
reasons which will become evident hereinafter I will not make a
finding in regard to this aspect.
It
is my view that at the time the Applicant was denied access to the
site the Respondent’s officials were entitled to refuse
them
access to the premises to remove the formwork and scaffolding in
light of the fact that the Respondent was not aware of
the contract
between Khumbula Property Services and the Applicant. Until such
time as the Applicant established its ownership
of the formwork and
scaffolding the Respondent was entitled to deny the Applicant access
to the site and prevent the Applicant
from removing the formwork and
scaffolding.
In
light of the fact that an illegible copy of the terms and conditions
was supplied to the Respondent it was not in a position
to
adequately determine and satisfy itself of the Applicant’s
ownership of and therefore entitlement to the formwork and

scaffolding. However, once a clear and legible copy of the terms
and conditions was supplied, it would be obvious to any person

reading such document that the Applicant was the owner of the
formwork and scaffolding and was thus entitled to possession

thereof, unless the Respondent raised a defence like for example the
right of retention.
It
appears to be common cause that the Respondent is going to advertise
for t
enderers
for the completion of the Kimberley Conference Centre and appoint a
new contractor to complete the works.
Clause
36 of the agreement provides for the Respondent to retain the
ma
terials
and goods on the site for proceeding with the works. It is clear
from the Affidavit put up by the Respondent that it
is not intent on
proceeding with the works any time soon and is only intent on doing
so once a new contractor is appointed.
The
Applicant appears to have disregarded the contents of the letter
sent by the Respondent’s representative on the 3
rd
of April 2009. It has misconstrued the contents of that letter to
suit its own purposes, namely to bring the application as
a matter
of urgency. The letter from Motingoe clearly asks the Applicant to
establish its ownership and prove ownership of the
goods in
question. The Applicant’s response thereto was to initially send
a picking list together with the terms and conditions
which are not
legible and a copy if a credit agreement which differs to the one
put up in the Founding Affidavit.
In
addition the application papers w
ere
served on the same day as the Respondent was required to file its
notice of opposition and opposing affidavits. In addition,
when the
Respondent’s representative requested a clear and legible copy of
the terms and conditions, same was not provided
by the Applicant’s
attorney. It would have been a simple matter for the Applicant’s
attorneys to have enlarged the copy
in their possession and have
faxed same through to the Respondent’s representative. The
Respondent’s representatives were
required to draft the opposing
affidavit in the absence of such terms and conditions.
FINAL INTERDICT
There
are three requisites for the granting of a final interdict, all of
which must be present for an applicant to succeed
in obtaining such relief namely a clear right, an injury actually
committed or reasonably apprehended and the absence of any
other
satisfactory remedy.
As regards the aspect
of a clear right, the authorities have defined same to mean a right
established on a balance of probabilities.
The
Applicant for reasons mentioned above has established that it is the
owner of the formwork and scaffolding on a balance of
probabilities.
In
relation to whether or not an injury was committed or reasonably
apprehended the test to be applied is an objective one. What
is
required is proof of an actual injury committed or a well-grounded
apprehension that an injury will occur. Given the averments

contained in the founding affidavit I am of the view that the
Applicant has not objectively shown that its apprehension is well

grounded. It has merely asserted what its fears are. All the
Applicant says is that the formwork is such that it can be easily

removed and carried away by a person and in the same breath says
that the nature of the equipment is that it is heavy. In addition

the Applicant has not placed any facts before this court which
justifies the view that its formwork and scaffolding is in danger
of
being removed or stolen. It appears that from 20 March 2009, no one
has been allowed to gain access to the building site to
remove any
equipment from the site and that the Respondent has security in
place.
The
Applicant has also not convinced me that it has no other remedy. It
has the right to institute a vindicatory action as well
as a claim
for damages.
It is for these
reasons that I make the following order:-
The application is
dismissed with costs.
________________________
J I HENRIQUES
ACTING
JUDGE
NORTHERN CAPE
DIVISION
For the
Plaintiff:
Adv
Klopper
Instructed
by:
Engelsman
Magabane Inc, KIMBERLEY
For the
Respondent: Adv B Knoetse SC
On
behalf of
: State
Attorney, KIMBERLEY