Chopper Worx (Pty) Ltd and Another v WRC Consultation Services (Pty) Ltd (3172/2008) [2008] ZAWCHC 17; 2008 (6) SA 497 (C) (17 March 2008)

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[2008] ZAWCHC 17
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Chopper Worx (Pty) Ltd and Another v WRC Consultation Services (Pty) Ltd (3172/2008) [2008] ZAWCHC 17; 2008 (6) SA 497 (C) (17 March 2008)

Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
REPORTABLE
CASE No: 3172/2008
In the matter between:
CHOPPER WORX (PTY) LTD
First Applicant
PENINSULA EXECUTIVE
HELICOPTERS (PTY) LTD Second Applicant
and
WRC CONSULTATION
SERVICES (PTY) LTD Respondent
_____________________________________________________________________
JUDGMENT
DELIVERED : 17 MARCH 2008
________________________________________________________________________
MOOSA, J:
Introduction
[1]
This
is the return day for the confirmation of the rule nisi and interim
interdict granted by
Waglay J
on 21 February 200 in an
ex parte
application for
mandament van spolie
.
Applicants alleged in their founding papers that they were in the
peaceful and undisturbed possession of a Robinson R44 helicopter
with
registration number ZS-HAG. They further alleged that, on 16
February 2008, respondent’s representative, one Enzo Kuun (Kuun),
removed the helicopter from their possession, wrongfully and
unlawfully and thus committed
mandamant
van spolie
.
The Defences
[2]
The
respondent resisted the application on a number of grounds. They
comprised both technical and substantive grounds. The technical
grounds were firstly, that the applicants had no
locus
standi
to bring the application and
secondly, that the form in which the application was initiated, is
irregular in that the application
was brought
ex
parte
and without notice to the
respondent. During the course of argument, counsel for respondent
indicated that he is not persisting
with the first technical ground.
With regard to the second technical ground, the respondent did not
dispute the urgency of the application
or the grounds advanced by
applicants for such urgency. It, however, contended that the
applicants had failed to advance reasons
why the application was of
such extreme urgency that justified them dispensing with the giving
of notice. I will deal firstly with
that proposition.
The
Ex Parte
Application
[3]
It
is customary to bring a spoliation application
ex
parte,
but applicants do so at their
peril.
Ex parte
applications are usually accompanied by a rule nisi to give the
respondent an opportunity to show cause why the rule nisi should
not
be confirmed. The rules of court do not expressly provide for the
granting of a rule nisi, but such practice is firmly embedded
in our
procedural law, particularly where notice has been dispensed with due
to certain circumstances. In this regard the
dictum
of
Corbett
JA
, (as he then was) in
Safcor
Forwarding (Johannesburg) (Pty) Ltd v National Transport Commission
1982 (3) SA 654
(A) at 674 is apposite
and reads:
“
The procedure of a rule nisi is usually
resorted to in matters of urgency and where the applicant seeks
interim relief in order adequately
to protect his immediate
interests. It is a useful procedure and one to be encouraged rather
than disparaged in circumstances where
the applicant can show,
prima
facie
, that his rights have been
infringed and that he will suffer real loss or disadvantage if he is
compelled to rely solely on the normal
procedures for bringing
disputes to Court by way of notice of motion or summons.”
[4]
In
casu
, applicants not only made out a
case for urgency as conceded by respondent, but also sought an
interim interdict to protect their
immediate interests. In addition
thereto, they showed,
prima facie
,
that their rights have been infringed and that they would suffer loss
and prejudice if they are not granted immediate relief. My
brother,
Waglay J
,
who granted the
ex parte
order, exercised a discretion in that respect and I have no reason to
interfere with the exercise of such discretion.
[5]
Counsel
for respondent secondly submitted that applicants had failed to take
the court into its confidence by not placing before it,
in its
ex
parte
applications, material facts
which could have influenced the court in its decision whether or not
to grant the application. In this
regard he submitted that
applicants were aware of the substantive defences of respondent and
should have disclosed such information
in its papers. It is a trite
principle of our law that good faith is a
sine
qua non
in an
ex
parte
application.
[6]
In
its papers the respondent raised two defences to defeat the claim for
mandament van spolie
.
The first, was that the applicants consented to the removal of the
helicopter and the second was that restoration is impossible
because
possession of the helicopter was
bona
fide
transferred to a third party. In
my view, applicants placed all the material facts, which were at
their disposal, before the court
when it sought the
ex
parte
spoliation order. It annexed to
their papers, all the correspondence that passed between applicants
and respondent immediately after
respondent took possession of the
helicopter. In such correspondence respondent did not state firstly,
that it had the necessary
consent to remove the helicopter
permanently from the possession of applicants or secondly, that it
was impossible for it to restore
possession of the helicopter to
applicants as it had transferred possession of the helicopter to Base
Four Aviation (Edms) Bpk (Base
Four). I am satisfied that, when
applicants approached the court for an
ex
parte
order, they were not aware that
respondent would raise these defences. They were raised for the
first time in its opposing papers.
The respondent’s contention,
that applicants had failed to place the substantive defences of
respondent before
Waglay, J
,
is accordingly without substance.
The Undertaking
[7]
The
third allegation that applicants’ attorney undertook to give notice
to respondent’s attorney should the court be approached,
is also
without foundation. In support of such contention, respondent
annexed to his affidavit, its attorney’s contemporaneous
notes
relating to a telephonic conversation between him and applicants’
attorney, and which was confirmed by Mr Truter, the respondent’s
attorney. The relevant portion of the cryptic note reads:
“Ek
vra kennis as wel aansoek bring. Hy meld op pad na Counsel”.
This is consistent with the version of applicants’ attorney, Mr
Van der Hoven
: “Ek het nie onderneem
om enigsins kennis te gee van die aansoek nie an slegs ges
ê
dat ek op pad is na die advokaat en sal instruksies neem…”.
The version of respondent with regard to such undertaking is, in my
view, inherently improbable and is accordingly rejected.
Findings on
Points
in limine
[8]
Respondent’s
contention firstly, that the manner in which the application was
brought amounted to an abuse of the court’s process
as no facts
were placed before it to justify an
ex
parte
order and secondly, that the
possible defences of respondent were not placed before it, is not
tenable. I accordingly conclude that
the points raised
in
limine
, for reasons given, are without
merit.
The Law
[9]
Before
I turn to discuss the substantive defences raised by respondent to
applicants’ application for
mandament
van spolie
, it is appropriate, at this
stage, to set out the law. The law is succinctly summarised in a
passage of the case
Scoop Industries
(Pty) Ltd v Langlaagte Estate and GM Co Ltd
(In Vol Liq)
1948 (1) SA 91
(W) at 98-99 as follows:
“
Two factors are requisite to found a claim for
an order for restitution of possession on an allegation of
spoliation. The first is
that applicant was in possession and the
second, that he has been wrongfully deprived of that possession and
against his wish. It
has been laid down that there must be clear
proof of possession and of the illicit deprivation before an order
should be granted.
(See
Rieseberg
v Rieseberg
(1926, WLD 59
, at
65).) It must be shown that the applicant had had free and
undisturbed possession (
Hall v
Pitsoane
(1911, TPD 853).)
When
it is shown that there was such possession, which is possession in
physical fact and not in the juridical sense, and there
has been such
deprivation, the applicant has a right to be restored in possession
ante omnia
.
On a claim for such restoration it is not a valid defence to set up
a claim on the merits.”
[10] The
dictum
of
Innes CJ
in
the case of
Nino Bonino v De Lange
1906 TS 120
, sets out the principles at 122 as follows:
“
It is a fundamental principle that no man is
allowed to take the law into his own hands; no one is permitted to
dispossess another
forcibly or wrongfully and against his consent of
the possession of property, whether movable or immovable. If he does
so, the Court
will summarily restore the status
quo
ante
, and will do that as a
preliminary to any enquiry or investigation into the merits of the
dispute.”
The question of onus has been set out
in
Yeko v Qana
1973 (4) SA 735
(A) at 739E as follows:
“
In order to obtain a spoliation order the onus
is on the applicant to prove the required possession, and that he was
unlawfully deprived
of such possession.”
[11]
Erasmus
on
Superior Court Practice
at E9-10 says:
”
When an applicant seeks a spoliation order, it
is not sufficient for him to make out merely a
prima
facie
case for the order, he
must ‘prove the facts necessary to justify a final order – that
is, that the things alleged to have been
spoliated were in his
possession , and that they were removed from his possession forcibly
or wrongfully or against his consent’.”
[12] Where a final order is sought in an
application and there are disputes of fact on the papers, then the
matter can be resolved
on the facts stated by respondent together
with the admitted facts in the applicants’ affidavits. (
Tamarillo
(Pty) Ltd v B N Aitken (Pty) Ltd
1982
(1) SA 398
(A) at 430-431;
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634.) In the first paragraph of the Headnote in
the case of
Nienaber v Stuckey
,
1946 AD 1049
, the test is set out as follows:
“
Where the applicant asks for a spoliation order
he must make out not only a
prima
facie
case, but must satisfy the
Court on the admitted or undisputed facts, by the same balance of
probabilities as is required in every
civil suit, of the facts
necessary for his success in the application.”
The Facts
[13] I now turn to
the facts of this case. It is common cause that applicants, at the
time of the alleged spoliation, were in possession
of the helicopter
in terms of a Lease Agreement between respondent and applicants
dated 12 December 2007 (the Lease). It is also
common cause that the
helicopter was removed from their possession by the respondent. The
respondent alleges that it had the consent
of the applicants to
remove the helicopter, but should the court find that no such consent
existed, then it is impossible for respondent
to restore possession
of the helicopter to applicants as it had transferred possession
thereof,
bona fide,
to a third party before it became aware of this application.
[14] I will first deal with the question of consent. It is common
cause that on 16 February 2008, Kuun, the director and
shareholder of respondent, approached Victor Rottcher (Rottcher), a
pilot and an employee of applicants, and informed him that he
wanted
to take the helicopter for a test flight and would return the
helicopter thereafter. Kuun flew the helicopter to the premises
of
Base Four at the Cape Town International airport. Kuun later ‘phoned
Rottcher and informed him that he would return the helicopter
the
following morning, that is, 17 February 2008, as the wind was too
strong to fly the helicopter back the same day. The following
day
respondent, instead of returning the helicopter, delivered a letter
to applicants in terms of which it cancelled the Lease, demanded
the
immediate return of the helicopter and said it will take control of
the helicopter. It is common cause that the helicopter was
never
returned to applicants.
Evaluation
[15] Applicants contended that respondent obtained possession of
the helicopter under the false pretences that it wanted to take
the
helicopter for a test flight. Respondent conceded that the consent
to remove the helicopter from applicants’ possession was
not
expressly asked for and not expressly given. However, respondent
submitted that such consent was tacitly given. I will accept
in
respondent’s favour, without making a formal finding that
applicants acquiesced or consented in giving the helicopter to
respondent
for the purpose of taking it on a test flight. The next
question the court has to answer, was such acquiescence or consent
obtained
by false pretences in order to deprive applicants
permanently of possession of the helicopter? Counsel for respondent
conceded that
should the court find that such acquiescence or consent
was obtained under false pretences, then the dispossession would be
wrongful.
I will now examine that proposition.
[16] In
Stocks
Housing (Cape) (Pty) Ltd v Chief Executive Director,Department of
Education and Culture Services and Others
1996
(4) SA 231
(C) at 240B-C the court said:
“
The element of unlawfulness of the
dispossession which must be shown in order to claim a spoliation
order relates to the manner in
which the dispossession took place,
not to the alleged title or right of the spoliator to claim
possession. The cardinal enquiry
is whether the person in possession
was deprived thereof without his acquiescence and consent.
Spoliation may take place in numerous
unlawful ways. It may be
unlawful because it was by force or by threat of force or by stealth,
deceit or theft…”
[17] It is common cause that the Lease provides
that the applicants
“shall at all
reasonable times, allow the Lessor
(respondent)
his (sic) representative reasonable facilities for inspecting the
Helicopter whilst being operated by the Lessee”.
The Lease does not provide for the respondent to take the helicopter
for a test flight. Applicants contend that neither respondent
nor
Kuun are qualified Aircraft Maintenance Operators (AMO’s) to carry
out inspections. Clause 14 of the Lease provides that the
respondent
shall have preferential use of the helicopter during the duration of
the lease under certain circumstances, but it is
subject to
respondent giving the applicants 24 hours notice of its intention to
use the helicopter. No such notice was given and
it is clear that
respondents did not exercise its rights in terms of clause 14 of the
Lease.
[18] Kuun undertook to
return the helicopter the same day after the alleged test flight, but
it is common cause that it was not
returned. The reason given was
that the wind was too strong that particular day and the helicopter
would be returned the next morning.
This undertaking was given by
Kuun despite the fact that he had knowledge that there was a play
with the main mast. It is clear
that at that stage he did not regard
the problem as serious enough either, not to return the helicopter
the next morning to applicants,
or to send it for repairs.
[19] The helicopter was then parked overnight at
the premises of Base Four who usually rendered maintenance and repair
services
to the helicopters of respondent. According to Kuun, he
thought about the matter overnight and the following morning decided
to
ground the helicopter because of the play in the main mast and
hand over the helicopter to Base Four for purpose of repairs. This
was in direct contrast to the undertaking he gave to return the
helicopter the following morning. If we accept that the helicopter
required repairs, as Kuun alleges, and there was no ulterior motives,
one would have expected him to inform applicants accordingly.
In
other words, he should have informed them that he had taken the
helicopter on a test flight, found certain problems and before
the
helicopter can take to the air, it requires certain repairs that he
had asked Base Four to do. Because of the contractual relationship
between the parties, this would have been a
bona
fide
and reasonable approach. It is
common cause that this did not transpire, but what followed were the
alleged cancellation of the
Lease and the repossession of the
helicopter.
[20] There is some ambivalence on the part of
the respondent as to the exact reason for the cancellation of the
Lease. Clause 21
of the Lease provides that the respondent is
entitled to terminate the lease with immediate effect if (a) any
payment is not effected
timeously; (b) if the insurance of the
helicopter is cancelled and (c) if the applicants commit any act
whereby respondent’s rights
are in jeopardy. On respondent’s own
version there appears firstly, to be a dispute with regard to the
payment of the rental;
secondly, the insurance was not cancelled,
but an endorsement was effected removing the name of second applicant
from the policy
at the instance of respondent
post
ex facto
and thirdly, respondent failed
to establish that applicants committed any act which would jeopardise
the rights of respondent. For
the purpose of this case, it is not
necessary to go into the merits of the case, but I am of the view
that the reasons given for
the cancellation is not only tenuous, but
appears to have been contrived to
post
ex facto
justify and reinforce the
illicit conduct of respondent in unlawfully depriving applicants of
possession of the helicopter.
[21] I am satisfied that, on the admitted facts,
respondent obtained possession of the helicopter from the applicants
under false
pretences. By its conduct, respondent wrongly and
without consent deprived applicants of the possession of the
helicopter that was
lawfully in their possession at the time the
spoliation was committed. The subsequent conduct of respondent, in
cancelling the Lease
and taking control of the helicopter, was aimed
to cover up its illegitimate conduct. I accordingly find that
respondent committed
mandamant of spolie
against applicants.
Restoration of Possession Impossible
[22] I now turn to the second defence raised by
the respondent. Respondent alleges that the possession of the
helicopter has been
transferred to Base Four for repairs. As it has a
right of retention for such repairs, restoration of possession to
applicants has
become impossible. In
Administrator,
Cape and Another v Ntshwaqela & Others
1990
(1) SA 705
(A) at 720G-H, the court said:
“
In the context of the
Mandamant
van spolie
, impossibility is a
question of fact, and when it is contended that an order should not
be granted because it cannot be complied
with, it must be shown that
compliance is impossible on the facts.”
[23] On the facts of this case, the defence is
legally untenable. The right of retention only endures while such
right is exercised
by Base Four and the repair costs remain unpaid.
There is a legal duty on respondent to pay for the costs of such
repairs as it
contracted with Base Four to affect the necessary
repairs. Nothing, however, prevents applicants from paying such
amount and obtaining
the termination of the
lien
over the helicopter. Applicants may then have right of recourse
against respondent, depending on which party is responsible for
such
repairs in terms of the Lease.
[24] In terms of the provisional order,
possession of the helicopter has been restored to applicants subject,
however, to the right
of retention in favour of Base Four. The
helicopter has not been alienated by respondent to Base Four. In
that event the defence
of respondent in this regard may have been
good. Counsel for respondent submitted that where a third party has
acquired possession
of the thing spoliated in a
bona
fide
manner, a
mandament
van spolie
cannot be granted. In
support of this submission, he relied on the case of
Bank
van die Oranje Vrystaat v Rossouw
1984
(2) 644 (C). That case is distinguishable from this case on the
facts and in fact lends support for the case of applicants
in that
they could obtain possession of the helicopter by paying Base Four.
In that case the Bank had obtained possession of a vehicle
after
paying and obtaining the release of the vehicle from the panel beater
who had the right of retention. The vehicle was subsequently
sold by
the Bank in good faith to the third party. In the present case the
helicopter has not been alienated in good faith to a
third party.
This is a fundamental difference between the facts in that case and
the facts under consideration. The same applies
to the facts of
Jivan v National Housing Commission
1977 (3) SA 890
(W) at 894G-H, which is likewise distinguishable from
the facts in this case.
Final Relief
[25] In this matter legal possession of the
helicopter was restored by the Sheriff to the applicants on 22
February 2008 in terms
of the interim order. Once the
lien
in favour of Base Four has been
discharged, factual possession of the helicopter will be vested in
applicants. In the circumstance
it is not necessary for me to decide
the question of whether respondent was allowed to come into
possession of the helicopter in
bad faith. I am satisfied that
applicants have made out a case for final relief on the papers. In
the circumstances the rule nisi
is confirmed save and except for
Clause 2.5 of the rule nisi and the final order is granted with
costs. To give effect to the interim
and final order of this court,
Base Four is required to give possession of the helicopter to
applicants as soon as its
lien,
if
any, in respect thereof expires.
…………………………….
E MOOSA