Safari Adventures Co. Ltd v Oertel and Others (3192/2007) [2007] ZAFSHC 100 (27 September 2007)

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[2007] ZAFSHC 100
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Safari Adventures Co. Ltd v Oertel and Others (3192/2007) [2007] ZAFSHC 100 (27 September 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 3192/2007
In
the case between:
SAFARI ADVENTURES
CO. LTD
Applicant
and
TREVOR CRAIG OERTEL
First
Respondent
SA
NATIONAL BIRD OF PREY CENTRE
Second Respondent
WILDTHINGZ
ANIMAL PARK (PTY) LTD
Third Respondent
JUDGEMENT:
VAN DER MERWE, J
_____________________________________________________
HEARD ON:
6 SEPTEMBER 2007
_____________________________________________________
DELIVERED ON:
27 SEPTEMBER 2007
_____________________________________________________
[1] This application
concerns four young cheetahs identified by the inordinately long
microchip identification number set out in the
notice of motion.
[2] The applicant is a
company registered and incorporated in the Republic of Mauritius. It
is averred that the directors of the
applicant are Mr. Graeme Bristow
and Mr. Jano Labat. The first respondent is a businessman and farmer
of Vrede, Free State. The
first respondent is also a director of the
second respondent, and association not for gain incorporated in terms
of section 21 of
the Companies Act, No. 61 of 1973. The first
respondent and the second respondent make use of the same place of
business. The first
respondent deposed to the answering affidavit in
this application in his personal capacity as well as in his capacity
as representative
of the second respondent. No relief is claimed
against the third respondent and the third respondent was not
represented before
me.
[3] The
cheetahs are presently in the possession of the first respondent
and/or the second respondent. Unless the court indicated
otherwise,
a reference hereinafter to the respondents, must be understood as a
reference to the first respondent and/or the second
respondent.
[4] The application was
launched on an urgent basis on 18 July 2007 for claiming firstly an
order prohibiting the respondents from
cancelling the export permit
in respect of the cheetahs issued by the Free State Department of
Environmental Affairs and Tourism
and secondly an order that the
respondents deliver the cheetahs forthwith to Mr. Vivian Bristow, the
farther of Mr. Graeme Bristow,
and in the event of the respondents
failing to do so, an order authorising the sheriff to take possession
of the cheetahs and deliver
them to Mr. Vivian Bristow. On the
direction of the presiding judge, the application was postponed to 19
July
2007 in order to affect service of the application. The application
was duly served on 18 July 2007 on all three respondents.
On 19 July
2007 an order was made by agreement between the applicant and the
respondents. In terms of this order the application
was postponed to
2 August 2007, the respondents were to file answering affidavits on
or before 15h00 on Monday 23 July 2007 and the
applicant was to file
its replying affidavit on or before 12h00 on Friday 27 July 2007.
Answering and replying affidavits were duly
filed. On 2 August 2007
however the matter was postponed to 10 August 2007 on account thereof
that the papers were not indexed properly
or timeously and on 10
August 2007 the matter was again postponed by the same presiding
judge as the judge acquired additional heads
of argument on behalf of
the applicant. The hearing before me on 6 September 2007 counsel for
the respondents nevertheless argued
that I should refuse to hear the
application due to an alleged lack of urgency. I find this stance
quite unacceptable. It is not
disputed that on the information
available to the applicant at the time, the cancellation of the said
export permit was immediately
eminent. In any event in terms of the
order made by agreement on 19 July 2007, the respondents filed a
comprehensive answering affidavit
and the applicant replied thereto.
It is in my opinion clearly in the interest of the parties that at
least some of the disputes
between them be prejudicated upon an order
to advance the finalisation of the matter. If I would exceed to the
request to refuse
to hear the application, the application could in
terms of this court, simply be enrolled for hearing during the next
week. This
seems to me to be wasteful in the extreme.
[6] It is probable that
the permit referred to in the notice of motion was already cancelled
on 18
th
July 2007. In the light hereof and in the light of what follows, I
do not believe that it will serve any useful purpose to now make
an
order in this regard.
[7] On the view that I
take of the matter, it is necessary to firstly determine whether on
their own version and evidence, the respondents
have established that
they obtained the ownership of the cheetahs as alleged. If not, the
issue arises whether the respondents are
entitled to withhold
delivery of the cheetahs in terms of an
ius
retentionis
as security for the claim for unnecessary and useful expenses in
respect of the care of the cheetahs and their improvement by way
of
training.
[8] In the answering
affidavit the first respondent clearly stated that he purchased the
cheetahs for an amount of R160 000,00, on
behalf of and with money
supplied by Mr. Graeme Bristow and his partner Mr. Labat. On his own
evidence, the first respondent therefore
acted nearly as an agent for
Mr. Graeme Bristow and his partner. This was repeatedly confirmed by
the first respondent in e-mail
communications forming part of the
record. After the purchase of the cheetahs during August 2006, they
were transferred to Mr. Vivian
Bristow and/or the third respondent in
the Limpopo province. It was their condition of the permit that
allowed the entrance of the
cheetahs into the Limpopo province that
the cheetahs had to be exported from the Limpopo province by no later
than 31 December 2006,
failing which the cubs could be forfeited to
the state or ___________________. As the cheetahs could not be
exported to Mauritius
before 31 December 2006, the cheetahs were
returned to the care of the respondents during January 2007. The
answering affidavit
then proceeds as follows:
“
26.4 When the cheetah cubs were
returned to me from Vivian Bristow in Polokwane, I had a conversation
with Mr Vivian Bristow to the
effect that as the four cheetahs were
now almost adult, and would soon be adult cheetahs, I should take two
of the cheetahs, and
the other two could go to the Third Respondent
herein. During the conversation I suggested to Mr Vivian Bristow
that, should we
do this we should refund to Graeme and Jano Labat the
R160 000 (One Hundred and Sixty Thousand Rand) that had been paid by
them,
but Mr Vivian Bristow respondent to me that we could pay them
at some later date, if and when they asked for the return of their
money.
26.5 Accordingly, upon the four
cheetahs returning to my property in Vrede in the Free State
Province, I considered two cheetahs to
belong to me and the Second
Respondent, with the other two cheetahs belonging to the Third
Respondent, as was discussed between me
and Mr Vivian Bristow.”
[9] From the aforegoing
it is clear that according to the respondents’ version there is no
legal basis whatsoever for which a change
of the contraction
relationship between the respondents on the one hand and Mr. Graeme
Bristow and Mr. Labat on the other hand or
a transfer of ownership of
the cheetahs as alleged, could be founded. The arbitrariness and
unacceptability of the respondents’
contention is compounded by the
fact that the first respondent admittedly made an affidavit filed in
legal proceedings in the Natal
High Court stated that the cheetahs
belonged to the third respondent. Moreover, it is common cause that
the export permit required
from the South African authorities for the
export of the cheetahs to Mauritius, was arranged for by the first
respondent and that
up to the beginning of July 2007 the respondents
actively participated in the arrangements for the export of the
cheetahs. In my
opinion, on the respondents own case, the
respondents did not obtain ownership of the cheetahs. The third
respondent does not claim
ownership of any of the cheetahs.
[10] It does not, of
course, follow that the applicant has shown that it is the owner of
the cheetahs or that it is contractually
entitled to claim delivery
of the cheetahs. In the founding affidavit on behalf of the
applicant, deposed to by Mr. Vivian Bristow,
it was stated affectedly
that the applicant became the owner of the cheetahs when they were
purchased towards the end of 2006. In
the answering affidavit it was
pointed out that according to the registration number of the
applicant, it only came into existence
during the year 2007. If so,
so the respondents said, the purchase of the cheetahs could not at
the time have been made as agent
for the applicant. In an affidavit
by Mr. Graeme Bristow attached to the replying affidavit on behalf of
the applicant by Mr. Vivian
Bristow, Mr. Graeme Bristow said that the
applicant was indeed registered and incorporated as a company on 9
February 2007 but that
thereafter the agreement whereby the cheetahs
was purchased, was excepted by the applicant.
[11] In
the light hereof, the respondents made an application for the
striking out of these new allegations in their replying affidavit.

In the alternative, if the striking out application was not
successful, the respondents moved for relief to file further
affidavits
in respect of the new matter in the replying affidavit.
[12] There appears to be
no question that Mr. Graeme Bristow has at least a material interest
in the cheetahs. I must admit however
to a measure of uneasiness on
the question as to whether the gain as to be found as a fact that the
ownership or the right to claim
delivery of the cheetahs now vests in
the applicant. In the founding affidavit it is stated that the
applicant runs and conducts
the business of a wild life park and
sanctuary in Mauritius. It is common cause however that by e-mail
dated 14 September 2006 Mr.
Vivian Bristow contacted one Maurice
Koenig to assist in respect of commission from the Maurition
authorities to import the cheetahs.
It is not disputed that
apparently as a result of this communication, Maurice Koenig issued a
letter dated 5 October 2006 on the
letterhead of The Medine Sugar
Estates Co Ltd, Bambous, Mauritius in the following terms:
¡°
This
is to confirm that Casela Nature and Leisure Park, a department of
the Medine SE Co Ltd., is in business partnership with Mr
G Bristow
of WildThingZ Animal Park concerning the importation of lions and
cheetahs for display in our park in Mauritius.
In
this concern we would appreciate authorization be given for the
transfer of the purchased cheetahs cubs from the Free State Province
to Mr Viv Bristow’s place in the Limpopo Province, for further
training up to December, time at which we are expecting them in
Mauritius.”
Attached to the founding
affidavit to the copy of the document that in terms of the contents
thereof is an import permits in respect
of the cheetahs dated 14 May
2007 and valid until 13 November 2007, issued by the Division of the
Veterinary Services, Ministry of
Agro-Industry & Fisheries,
Republic of Mauritius. Also attached to the founding affidavit is a
further document entitled “Import
Permit”. According to the
contents of this document it was issued on the 11
May
2007 by the National Parks and Conservation Service of the Ministry
of Agro-Industry & Fisheries of the Republic of Mauritius
in
respect of four cheetahs and valid to 11 November 2007. According to
the contents of this document it was issued in accordance
with the
Convention on International Trade in Endangered Species of Wild Fauna
and Flora (It is called “CITES”). This document
was however on
the face of it issued to Casela Limited, c/o Medine Sugar Estate
Bambous. In the founding affidavit it is stated
that in terms of the
provisions and regulations of CITES such permit had to be issued to
the owner of the property on which the animals
will be kept and that
is Casela Limited. That the CITES provisions and regulations so
provide, does not make a lot of sense and
is denied by the first
respondent who states that he had in the past obtained CITES permits
to import animals onto property that
he did not own. Moreover, the
allegation that the interest of Casela Limited is limited to
ownership of the land, does not seem
to be in accordance with the
lien quoted above.
[13] In the light hereof
I believe that it is in the interest of justice and of the parties
that I issued the claim to decide the
issue of the applicant’s
alleged ownership of the cheetahs. In the result there could be no
prejudiced to the respondents. I
also do not think that the
applicant will suffer any real prejudice. In the light of what
follows, further steps will in any event
have to be taken by the
applicant and in the process the applicant will have opportunity to
show that it is in fact the owner of
the cheetahs or that it has a
contractual right to claim delivery of the cheetahs.
[14] It is common cause
that it was expected that the cheetahs would have been exported to
Mauritius before 31 December 2006. It
is common cause or undisputed
that thereafter the respondents has lawful possessors, cared for and
trained the cheetahs. It is common
cause also that it is very
expensive to maintain and take care of the cheetahs. In the result I
am satisfied that the respondents
have lien against the whole world
so to speak which entitles them to retained possession of the
cheetahs until it has been compensated
for the necessary and useful
expenses incurred in respect of the cheetahs. From these expenses
must of cause be deducted from any
income that the respondents
derived from the cheetahs. On behalf of the applicant it was argued
that the respondents should not
be allowed to rely on a lien as they
failed as yet to quantify their claim for necessary and useful
expenses. I do not think that
this is a proper approach. The
respondents were confronted by an urgent application and in their
defence thereto they in the first
place relied on ownership of the
cheetahs and in the alternative on a use
ius
retentionis
.
As I have found that the respondents cannot rely on a ownership of
the cheetahs, it could be said that the proper time putting
forward
the claim for which the lien serves as security, has only now
arrived. I have therefore come to the conclusion that the
respondents are entitled in terms of the lien and withhold delivery
of the cheetahs to whoever would otherwise be entitled thereto.
[15] During argument it
was mentioned that the respondent should delivered the cheetahs
against the security of R100 000,00 paid into
the trust account of
his attorneys by Mr. Vivian Bristow. Apart from the questions
whether the nature and amount of the security
so offered are
sufficient, the respondents clearly cannot be expected to accept
security for their claim for necessary and useful
expenses from a
person that has no direct interest the matter.
[16] It
follows that the application cannot succeed.
[17] The
application is dismissed with costs including the costs of reserved
on 10 August 2007.
________________________
C.H.G.
VAN DER MERWE, J
On behalf of applicant:
Adv. A. J. R van Rhyn SC
Instructed by:
Naudes
BLOEMFONTEIN
On behalf of
respondents: Adv. P. R. Cronje
Instructed by:
Webbers
BLOEMFONTEIN
/em