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[2009] ZAKZPHC 18
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Zululand Gas and Outdoor CC v Morris Centre (Pty) Ltd and Another (14275/08) [2009] ZAKZPHC 18 (13 May 2009)
IN THE
HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL,
PIETERMARITZBURG
CASE NO
:_14275/08
In
the matter between:
ZULULAND GAS AND OUTDOOR CC
Applicant
and
MORRIS CENTRE (PTY)
LIMITED
First Respondent
CHEVRON SOUTH AFRICA (PTY)
LIMITED
Second Respondent
JUDGMENT
Delivered
on : 13 May 2009
SKINNER,
AJ:
1
On 30
October 2008 the applicant launched an urgent application against the
respondents. The matter was set down for hearing
on 31 October
2008 at 3 p.m. and notice of the application was given to the
first respondent’s attorneys at 08.05 a.m.
that morning.
(I should add that no relief was sought against the second respondent
who was cited by virtue of having an
interest in the matter).
2
Although
the actual court order granted on 31 October 2008 was not placed
before me but only a copy of the consent order prayed,
it would
appear to be common cause that a
rule nisi
was granted on 31
October 2008 in terms of paragraph 2 of the notice of motion
returnable on 10 November 2008 “when
the interim relief
will be argued”. Mr Acker SC on behalf of the first
respondent drew my attention to the fact
that a consent order was
granted on 10 November 2008, a copy of which appeared in the
application papers before me. There
is no reference in such
order to the
rule nisi
granted on 31 October 2008 being
discharged but by necessary implication that must follow since the
order of 10 November 2008 granted
a very different
rule nisi
.
In terms of the latter order the first respondent was called upon to
show cause why the following order should not be granted
:
“
(a)
The first respondent is interdicted from commencing with the
construction of a wall/fence
on the northern boarder [sic] of the
applicant’s property (from the approximate location of the
diesel tank depicted on annexure
“B” to the founding
affidavit) to where the servitude road boarder [sic] intersects with
Second Street.
(b)
The
first respondent is directed to reinstate that portion of the wall
location on the western boarder [sic] of the applicant’s
property that the first respondent demolished.
(c)
The
first respondent is to pay the costs of the application and the
counter application; alternatively
(d)
The
applicant is to pay the costs of the application and the counter
application.”
3
The
order further contained a second paragraph reflecting various
undertakings by the parties pending the return date of the
rule
nisi.
The original notice of motion had sought far wider
relief but Mr Snyman on behalf of the applicant correctly and
properly
conceded that the issues before me were limited to whether
the
rule nisi
granted on 10 November 2008 should be confirmed
or discharged together with the ancillary issues of the counter
application brought
by the first respondent as well as an application
to strike out certain passages brought by the first respondent.
4
The
origins of the present dispute between the parties lay in a road
servitude which the first respondent has over a portion of
the
adjoining property of the applicant. The servitude is 12
metres wide running along and parallel to the
whole of the northern boundary of the applicant
’
s
property. In addition to the use by the first respondent, the
applicant itself utilised such area to provide access to the
trucks
of its customers which entered the applicant
’
s
property to obtain diesel and LP gas. The dispute arose when on
30 October 2008 the first respondent through its employees
or
contractors commenced demolishing the western boundary of the
applicant
’
s property and allegedly
“
also breaking up the tar surface in
front of the applicant
’
s office which
is on the applicant
’
s property
”
.
This had been preceded by an e-mail from the first respondent to the
applicant on 16 October 2008 in which it
inter
alia
indicated that it intended to
proceed immediately to build a wall which would be along the southern
border of the road servitude
area.
5
Mr Acker SC although not
addressing any argument on the issue, persisted with what was set out
in his heads of argument to the effect
that no case had been made out
to justify the applicant in moving the court when it did and on less
than a day
’
s notice to the first
respondent. He relied on the well known case of
Luna
Meubel Vervaardigers (Edms) Beperk v Makin and Another
1977 (4) SA 135
(W) to the effect that a party seeking to move the
court as a matter of urgency is required to make the case not only
that the
matter should not be heard in the ordinary course but that
the degree of relaxation of the Rules of court is no greater than the
exigency of the case demands. While it is clear that each case
must depend on its own circumstances (
20th
Century Fox Film Corporation v Anthony Black Films (Pty) Limited
1982 (3) SA 582
(W) at 586 G), no real case was made out by the
applicant in the present matter for the degree of urgency on which
the application
was brought. While it is of course trite as Mr
Snyman for the applicant pointed out that an application for a
mandament van spoile
is to be a speedy remedy, this does not mean that a party relying on
such cause of action can without further ado bring the application
as
a matter of urgency.
6
Events have however overtaken the
matter. As I have indicated a consent order was granted which
had the effect of restricting
the ambit of the relief sought and the
first respondent has had opportunity to file an opposing affidavit.
In those circumstances
it does not appear to me to be in the
interests of justice to dispose of this matter on the grounds of lack
of urgency when the
merits of the respective claims are ripe for
hearing.
7
The existence of the road
servitude formed in my view merely the background to the dispute
between the parties. The first
respondent does not purport to
justify its actions as flowing from its rights under the servitude.
It does however contend
that it was entitled to act as it did and as
it intends to do in terms of an agreement between the parties.
Accordingly the
existence or otherwise of such agreement is
fundamental to a resolution of the present dispute
–
if
there is an agreement in the terms contended for by the first
respondent then its actions could neither constitute spoliation
(since any deprivation was not unlawful) or give rise to an interdict
for similar reasons.
8
Mr Snyman laid great store on two
annexures to the founding affidavit. The one was the e-mail to
which I have already referred.
In addition to indicating the
intention to proceed to construct the wall the e-mail stated
“
the
conditional proposals we extended to your clients at the meeting on
the 30 September 2008 (as set out below) are hereby retracted
”
.
I should point out that no proposals at all were set out
“
below
”
in the e-mail. Mr Snyman argued for a very
broad interpretation of the word
“
retracted
”
as meaning
“
withdrawal
”
and
“
cancellation
”
and in so doing he referred to the meaning
appearing in a recognised English/Afrikaans dictionary. In the
Shorter Oxford English
Dictionary (3rd Edition)
“
retract
”
is defined as
“
to
withdraw, recall, revoke, rescind (a decree, declaration, promise
etc.) and
“
to withdraw
”
(a statement, etc.) as being erroneous or
unjustified
”
. There is no
reference to the word meaning
“
cancellation
”
.
In any event, even if
“
retract
”
could mean
“
cancel
”
the wording of the e-mail in question clearly
refers to retracting only the conditional proposals extended at the
meeting on 30
September 2008. Annexure
“
G
”
to the founding affidavit was an e-mail from the
first respondent to the applicant
’
s
attorney dated 30 September 2008 and purporting to set out a summary
of the meeting held between the parties on the same date.
It
commences with the words
“
I refer to
our meeting with your client (Zululand Gas) and confirm that (sic)
following
”
. On my reading of
this document the only conditional proposal that I can ascertain from
it is that the first respondent would
consider erecting a temporary
fence
“
abutting the proposed curb
stones of the road (as indicated in pencil during the meeting) in
order to give your clients an opportunity
to move the bowser and/or
tank to a more suitable location on the site
”
.
This was conditional on the applicant giving
“
a
timing that is acceptable
”
in
relation to the moving of the bowser and/or tank. It was common
cause that the bowser encroached approximately 1 metre
onto the road
servitude area while the northern end of the applicant
’
s
diesel tank was situate
“
right on
”
the road servitude line.
9
In my view these documents read
together cannot be taken as meaning that the first respondent
withdrew or cancelled all and any
agreements reached previously
between the parties. Accordingly any agreement reached would
still be of full force and effect.
10
It is perhaps opportune at this
stage to deal with the application to strike out brought by the first
respondent. In an application
brought during February 2009 the
first respondent contended that certain paragraphs/sentences in the
replying affidavit of the
applicant should be struck out as
constituting an endeavour by the applicant to make out a case in
reply which in any event was
inconsistent with the case made out in
the founding affidavit and introducing evidence in the replying
affidavit which should have
been disclosed in the founding
affidavit. During his submissions Mr Acker SC limited various
of the passages which the first
respondent sought to strike out.
I do not propose to deal with all of these passages. To my mind
the only valid complaint
related to sub-paragraph 2.1 and paragraph
29 of the replying affidavit. The first of these is an averment
by the applicant
that the construction of a wall along the 12 metre
servitude line was not necessary to enable the first respondent to
use the road.
I agree with the submission on behalf of the
first respondent that need or necessity had not formed part of the
applicant
’
s case in the founding
affidavits and should accordingly be struck out. The second
offending paragraph implies that an agreement
may have been reached
but if so it was under a mistaken belief affecting the consent of the
applicant. This too is a change
of stance. The other
passages which are alleged to be offending in my view relate to the
existence or otherwise of an agreement
between the parties and in
particular to whether the e-mail of 16 October 2008 (annexure
“
H
”
)
to the founding affidavit
“
retracted
”
all and any agreements. This was canvassed
in the founding affidavit as I have indicated and accordingly did not
constitute
either new material or a change in stance by the
applicant. I accordingly do not believe that such passages need
be struck
out. In the light of this, the first respondent has
been successful on certain aspects of the application to strike out
but
not on others and cannot be said to have been largely successful
in such application. In my view therefore it would be
appropriate
to make no order as to costs in respect of the
applicantion to strike out.
11
In relation to the
“
northern
wall
”
(being the wall which was to be
built along the southern most border of the road servitude area), Mr
Acker SC submitted that there
could be no doubt that such an
agreement had been concluded and was still in existence. In
support of this submission he
brought my attention to the following
passages in the papers :
(a)
Paragraph 16 of the founding
affidavit where the applicant set out that the difficulty with
constructing the northern wall was the
location of the diesel tank
and bowser (pump). The passage referred to the fact that the
first respondent and applicant “have
been talking for quite a
number of years about the construction of a wall on the 12 metre
servitude line”. The submission
was that although the
passage did not state that an agreement had been concluded it equally
did not state that there was no agreement
in existence.
(b)
Annexure “F” to the
founding affidavit was a letter from the applicant’s attorneys
to the second respondent dated
30 October 2008 explaining why the
second respondent had been cited. It was pointed out that
approximately 10 months previously
an issue had arisen between the
applicant and first respondent with regard to the right of way
servitude and that the first respondent
had informed the applicant it
intended to exercise its rights in terms of the servitude. The
document then stated “due
to the health and safety concerns it
would be necessary for a new boundary wall to be constructed on the
12 metre servitude line
which would, as the tank and pump stands now,
effectively reduce our client’s business capacity with at least
50% as the
tank and pump is situated on the 12 metre servitude line.
In view of the aforementioned it is necessary for our client to
move
the pump and to install an underground storage tank”. The
applicant accordingly sought the approval of the second
respondent to
remove the pump and to place the tank underground. I agree with
the submission of Mr Acker SC that this letter
proceeds from an
assumption that there was an agreement to build the northern wall.
If no such agreement had been reached
there would be no point in the
applicant contending that it is necessary for a new wall to be
constructed and for the tank and
pump to be relocated.
(c)
Paragraph 19 of the founding
affidavit where the applicant averred that the first respondent was
insisting that the concrete wall
be constructed as soon as possible
and the applicant was requesting “extra time”. “The
parties however
attempted to settle their differences and the first
respondent agreed to give the applicant time to move the tank and the
pump”.
Again, such agreement is only consistent with
there being an underlying or preceding agreement that the northern
wall would be
constructed which would necessitate moving the tank and
pump.
(d)
In the e-mail of 30 September
2008 (annexure “G” to the founding affidavit) the first
respondent indicated that it was
at the request of the applicant
together with recommendations of the architect involved that the
northern wall be constructed.
(e)
Finally, my attention was drawn
to the answering affidavit in the application to strike out where the
applicant in relation to the
e-mail of 16 October 2008 (annexure “H”
to the founding affidavit) which indicated that the first respondent
intended
to proceed to build the northern wall stated :
(i)
“
the first respondent attempted
to rely on an agreement which was cancelled by its director Mark
Hathorn on 16 October 2008 (annexure
“H”) to the founding
affidavit”;
(ii)
“
by replying as I did in the
replying affidavit, I placed further facts on record to show that the
first respondent’s allegations
are false and incomplete because
the agreement was cancelled by the first respondent as mentioned
above”.
12
There are further indications of
such an agreement. Annexure
“
MH9
”
to the answering affidavit in the main application
was the handwritten minutes of the deponent to the first respondent
’
s
affidavit regarding a meeting held on 10 July 2008. The
document records that the party attending the meeting on behalf
of
the applicant
“
had no objection to a
1,8m prefab concrete wall to be constructed along boundary and
servitude (12m)
”
. In reply to
this the applicant in paragraph 2 of its replying affidavit stated
“
at the time when I had these
discussions with the first respondent, we were unaware of the fact
that the applicant needed the second
respondent
’
s
permission to move the fuel bouzer (sic). That was later
brought to our attention, and therefore nullified the applicant
’
s
initial consent that the first respondent could construct a wall
along the 12 metre servitude line. At that stage I was
under
the
bona fide
and wrong impression that a servitude was like
“
ownership
”
,
and that is why I conceded that the first respondent was entitled to
construct a wall along that boundary
”
.
13
On a conspectus of all the affidavits,
I am in agreement with Mr Acker SC that there was an agreement
between the parties for the
first respondent to be allowed to
construct a wall along the southernmost servitude line. There
was a condition attached
to such agreement which related to the
applicant being given time to move the tank and pump. It is
common cause that these
have been moved. Accordingly such
condition has been fulfilled and the first respondent is entitled to
construct the northern
wall in terms of the agreement. For that
reason the application in respect of the northern wall (paragraph
1(a) of the
rule nisi
granted on 10 November 2008) must fail.
14
As regards the western wall being
the wall on the boundary of the applicant
’
s
property facing Second Street and in the vicinity of the road
servitude area, Mr Acker SC very fairly and properly conceded that
there were insufficient indications for me to be able to conclude
that an agreement had been reached between the parties which
will
allow the first respondent to act as it had. He further
submitted that in any event the applicant was in law not entitled
to
an order for reinstatement of the portion of the wall demolished by
the first respondent. In this regard he relied upon
Rikhotso
v Northcliff Ceramics (Pty) Limited and Others
1997 (1) SA 526 (WLD) at 535 A-B where the court held :
“
The
weight of authority supports the proposition that a spoliation order
cannot be granted if the property in issue has ceased to
exist.
It is a remedy for the restoration of possession, not for the making
of reparation”.
15
The
court declined to follow the approach in
Fredericks and Another v
Stellenbosch Divisional Council
1977 (3) SA 113
(C) at 117 H
where such court ordered the re-erection of informal housing that had
been demolished and said that if the original
sheets of corrugated
iron could not be found or had been so damaged as to be unusable
there was no reason why other sheets of similar
size and quality
should not be used. The court in
Rikhotso
supra at 534 D
correctly with respect found that this was an obiter remark which in
its context “was an observation made
by the learned Judge in
reply to an argument as to the practicality of restoring the
dwellings. I do not think that the learned
Judge intended by
this remark to hold that it was competent to order that possession be
restored by substitution”.
The Supreme Court of Appeal in
Tswelopele Non-Profit Organisation and Others v City of Tshwane
Metropolitan Municipality and Others
2007 (6) SA 511
(SCA)
criticized the approach in
Fredericks
supra and at 521
paragraph [24] held :
“
The
doctrinal analysis in Rikhotso is in my view undoubtedly correct.
While the mandament clearly enjoins breaches of the
law and serves as
a disincentive to self-help, its object is interim restoration of
physical control and enjoyment of specified
property – not its
reconstituted equivalent. To insist that the mandament be
extended to a mandatory substitution of
the property in dispute would
be to create a different and wider remedy than that received in South
African law, one that would
lose its possessory focus in favour of
different objectives”.
16
I
should add that I also have considerably difficulty with the claim by
the applicant for a final interdict. The requirements
for such
interdict are trite and in my view it has not been established that
there is no other suitable alternative remedy.
The applicant
contends that it will suffer a substantial reduction in trade and
accordingly a considerable loss of income if the
northern wall is
constructed. If however it is ever shown by the applicant that
no such agreement as I have found existed
did in fact exist, the
actions of the first respondent would naturally be unlawful and give
rise to a claim for damages.
On this aspect too I therefore do
not find that the applicant has made out a case.
17
In
the event however that my view of the law may be incorrect, I
nevertheless find that the applicant is not entitled to the relief
which it seeks. During argument Mr Snyman
albeit
rather
faintly and in response to a question from me submitted that if I
were to find that the e-mail of 16 October 2008 did not
constitute a
retraction/cancellation of all and any agreements, it would be
necessary to hear oral evidence as to whether any agreement
did in
fact exist in relation to the western wall. Mr Acker SC
submitted that this was not an application that the matter
should be
referred for the hearing of oral evidence but that in any event even
if it were to be regarded as such, I should refuse
to do so.
18
In
Kalil v Decotex (Pty) Limited and Another
1988 (1) SA 943
at
979 H-I, the court found that it had a discretion, in an
application for a provisional order of winding up, to allow the
hearing of oral evidence in an appropriate case. It held :
“
Naturally,
in exercising this discretion the Court should be guided to a large
extent by the prospects of
viva
voce
evidence tipping the balance in favour of the applicant. Thus,
if on the affidavits the probabilities are evenly balanced,
the Court
would be more inclined to allow the hearing of oral evidence than if
the balance were against the applicant. And
the more the scales
are depressed against the applicant the less likely the Court would
be to exercise the discretion in his favour.
Indeed, I think
that only in rare cases would the Court order the hearing of oral
evidence where the preponderance of probabilities
on the affidavits
favour the respondents”.
19
In
Bocimar NV v Kotor Overseas Shipping Limited
[1994] ZASCA 5
;
1994 (2) SA 563
(AD) at 587 A-G the court stated :
“
It
would seem that in the Court
a
quo
Bocimar’s
counsel simply applied informally and non-specifically for the
hearing of oral evidence, at the end of his
argument on the merits,
in the event of the Court holding that Bocimar had failed on the
papers to establish a genuine and reasonable
need for security.
No indication was apparently given of who should be required to give
evidence or submit themselves to
cross-examination nor was any
indication given of what evidence new witnesses would be able to
give”.
20
After
referring to the passage which I have quoted from
Kalil
supra,
the court indicated that :
“
these observations are, in my view,
pertinent to applications generally. In the present case, the
probabilities on the affidavits
....... tend to favour Kotor rather
than Bocimar. Moreover, the lack of any specific indication as
to what oral evidence
Bocimar had in mind increases the difficulty of
making a favourable assessment of the prospects of
viva
voca
evidence
tipping the balance in favour of Bocimar”.
21
I am in
agreement with the submission on behalf of the first respondent that
such indications as there are in the papers point to
an agreement in
respect of the western wall having been reached. In this
context I have regard to the following passages
:
(a)
Annexure
“G” to the founding affidavit where in relation to the
front gate (which is the area where the gate was to
be moved and a
wall constructed in its place), it is noted that “the front
gate access was discussed at length. It
was agreed that this
work should take place first. I would consult with Garth before
work commences”.
(b)
The
handwritten notation by Mr Hathorn of a meeting held on 22 September
2008 (annexure “MH 10 B”) where it is indicated
that a
meeting was held with Garth Holgate on behalf of the applicant and it
was “agreed on .......taking out fence at corner
(NW) and
removing part of fence”.
(c)
The
allegation in the answering affidavit that there was an agreement as
set out in the previous sub-paragraph to which the response
on behalf
of the first respondent is “what was agreed on at previous
meetings between the parties is of no force and effect
because the
first respondent decided on 16 October 2008 not to co-operate with
the applicant and to take the law into its own hands”.
22
Taking
all the aforegoing into account I find that the applicant has not
made out a case for the relief which it seeks in respect
of the
western wall.
23
What
remains to be considered is the counter application by the first
respondent. Such application was launched on 4 November
2008
and various relief sought the only portion of which is still relevant
and in terms of which an order is being sought is an
order
interdicting the applicant from in any way obstructing or hindering
the first respondent’s access, use and construction
on the road
servitude area. The counter application is not referred to in
the order of court dated 10 November 2008.
This would appear to
be inadvertent. It was not contended on behalf of the applicant
that the counter application had fallen
away. Since, unlike the
situation relating to the applicant’s notice of motion where by
necessary implication this
has been altered through the grant of the
order on 10 November 2008, there is no reference express or by
necessary implication
to the counter application, I can only conclude
that such counter application is still an issue before me.
24
The
applicant had acknowledged that there were certain vehicles or trucks
parked on the road servitude area but submitted that these
had been
removed on 31 October 2008 and accordingly there was no need for the
counter application to have been brought. In
response to a
query from me relating to photographs taken subsequent to that date
which still showed vehicles parked in the road
servitude area, Mr
Snyman submitted that these had no impact on the situation because
there was more than ample space for the first
respondent and its
vehicles to utilise the road servitude area. In my mind this is
no answer
–
the
first respondent is entitled to unencumbered and unrestricted use of
the entire area covered by the servitude. Further,
as Mr Acker
SC pointed out, the first respondent was not only concerned with
whether it and its vehicles could pass any vehicles
parked on the
road servitude area, but whether it would be able to continue with
its construction of the road itself on the servitude
area. He
submitted that this would be impossible if there were vehicles parked
because such would interfere with the construction.
In my view
there is much to be said for this.
25
I
accordingly make the following order :
(a)
The
rule nisi
granted on 10 November 2008 is discharged.
(b) The
applicant is directed to pay the costs of the
first respondent
occasioned by its opposition to the application.
(c) An
order is granted interdicting the applicant from
in any way
obstructing or hindering the first respondent
’
s
:
(i)
access to the road servitude;
(ii)
use of the road servitude;
(iii)
construction on the road servitude.
(d) The
applicant is directed to pay the costs of the first respondent
of the
counter application.
(e)
No order as to costs is made in respect of the application to strike
out.
_______________________
SKINNER,
AJ
Acting
Judge of the High Court
KWAZULU-NATAL,
PIETERMARITZBURG
Date of
hearing
: 8 May
2009
Date of
Judgment
: 13 May 2009
Counsel
for Applicant
:
Mr. C. Snyman
Instructed
by :
Delport de Coning
Bicker Inc
Counsel
for First Respondent :
Mr. B. Acker SC
Schreiber Smith
Attorneys