ATM Solutions (pty) Limited v OLKRU Handelaars CC and Another (13362 /07) [2007] ZAWCHC 63; 2008 (2) SA 345 (C); (7 November 2007)

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[2007] ZAWCHC 63
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ATM Solutions (pty) Limited v OLKRU Handelaars CC and Another (13362 /07) [2007] ZAWCHC 63; 2008 (2) SA 345 (C); (7 November 2007)

in
the high court of South Africa
(cape
of good hope provincial division)
Case
No /07
In
the matters between:
ATM
SOLUTIONS (PTY) LIMITED
and
OLKRU
HANDELAARS CC First Respondent
ABSA
BANK LIMITED
Respondent
judgment
delivered: 7 November 2007
Griesel
J:
Introduction
This
is an urgent application for a spoliation order. The applicant
conducts the business of installing and maintaining automated
teller
machines (ATM’s) at the premises of various retailers, of which
the first respondent’s con­venience store, trading
as
Kwikspar
Breedevallei
in Worcester, is one. In terms of a written
agreement with the first respondent which took effect on 1 June
2007, the applicant
was allowed to install one of its ATM’s within
the first respondent’s premises ‘at a mutually agreed location’.
In addition,
the first respondent provided an electricity supply to
the applicant’s ATM device. Clause 1.1 of the agreement provided:
‘
ATM
Solutions shall use and occupy such premises for the sole purpose of
placing and operating therein, an Automated Teller Machine
(ATM) on
the terms and conditions recorded herein.’
In
clause 2.1 of the agreement, after providing that the ATM shall be
installed ‘at a mutually agreed location’, it was further
agreed
as follows:
‘…
The
ATM shall remain installed at the Premises in the same location for
the duration of this Site Location agreement’ [i.e. 48
months as
from 1 June 2007].
The
installation took place by way of shop-fitting with wooden panels
around the ATM device, which was affixed to the floor by bolts
and
connected to the electrical output facilities of the premises. Until
19 September 2007, the appli­cant’s ATM remained
situated in
the agreed position at the entrance to the first respon­dent’s
shop, where it was easily accessible to potential
cus­tomers. In
addition, the first respondent provided the necessary electricity
supply to the ATM.
On
or about 19 September 2007 the first respondent – without the
consent of the applicant – disconnected the electricity supply
and
removed the applicant’s ATM to a storeroom on the premises, where
it is inaccessible to customers. At the same time, an ATM
device
belonging to the second respondent, ABSA Bank Limited, was installed
in the place and position previously occupied by the
applicant’s
device.
This
conduct gave rise to the present application. facts set out above
are undisputed. The applicant claims that the first respondent’s
conduct amounts to spoliation. It accordingly claims an order ‘that
the respondents forthwith restore the installation of a 9960
ATM
device–multi with serial number 8210797 to the position and in the
manner it formerly occupied on the premises of the first
respondent’. (At an earlier stage of the proceedings, the
applicant sought contractual relief as an alternative to a
spoliation
order. At the hearing before me, however, the claim for
contractual relief was expressly abandoned and the applicant’s
claim
was restricted to spoliatory relief.)
Both
respondents oppose the relief claimed and have advanced various
explanations for the events giving rise to the present application.
Due to the nature of these proceedings, however, those explanations
are not presently relevant and were not canvassed during oral
argument. The crux of the matter is the respondents’ defence that
the applicant has failed to establish the essential prerequisite
for
a
mandament van spolie
, namely the element of possession.
Possession
In
its founding affidavit, the applicant made the bald statement that
at all material times prior to the events of 19 September,
it was
‘in peaceful and undisturbed possession’ of the ATM device.
The
first respondent took issue with this contention and showed
convincingly that the applicant had not been in actual physical
possession or control of the ATM. In this regard, the first
respondent pointed out,
inter alia
–
(a) that
the ATM and the floor area on which it stood were at all relevant
times in the first respondent’s possession and control,
to the
exclusion of all others – including the applicant;
(b) that
the first respondent held the device inside its premises, to which it
held all the keys, including the keys to the device
itself;
(c) that
the first respondent controlled all access to the ATM by the
applicant and its employees or agents;
(d) that
the first respondent stocked the ATM device daily with money, changed
paper rolls and operated the controls of the ATM in
order to download
and print information concerning transactions done by customers by
way of the ATM.
Recognising
the force in these arguments, the applicant’s stance was modified
somewhat in reply: it alleged that ‘the applicant
at all times had
peace­ful and undisturbed possession,
through the
installation and location of the ATM device
, of an agreed,
designated part of the first respondent’s premises’.
1
Elsewhere it claimed that, prior to the alleged spoliation, the
applicant ‘physically, through the ATM device, occupied an
identifiable
portion of the premises’.
2
In argument before me, the applicant further developed this stance
by squarely relying on the concept of
quasi possessio
.
Although
the respondents correctly pointed out that the applicant has not
endeavoured to make out a case for
quasi possessio
in its
founding papers, a party is, of course, entitled to make any legal
contention open to it on the facts as they appear on
the affidavits
and the court may decide an application on a point of law that
arises out of the alleged facts even if the applicant
has not relied
on it in its application.
3
I accordingly proceed to consider the applicant’s claim based on
quasi possessio
.
In
this context, the applicant placed great reliance on the judgment in
Shapiro v SA Savings and Credit Bank.
4
In that case the applicant, a medical doctor, had agreed with
the previous owner of immovable property where he held a tenancy
that
his nameplate advertising his presence could be installed on
another part of the property by affixing it to a wall. A new owner
of the building removed the nameplate without the applicant’s
consent. Roper J found that –
‘
the
applicant … was given a right by the owner of the premises as part
of the conditions of his tenancy to have his nameplate
upon a
defined portion of the wall. That is, he was given the right to
occupy the space covered by this nameplate. When the respondent
acquired the ownership of these premises he took them, of course,
subject to existing leases, whether they were written or oral,
or
partly written and partly oral. Therefore it seems to me that the
applicant had a contractual right as against the respondent
to have
his nameplate upon that defined portion of the respondent’s
premises. I can see no reason why this should not be capable
of
protection by a spoliatory order’.
5
Shapiro’s
case was referred to with approval by the Division in
Bon
Quelle (Edms) Bpk v Munisipaliteit van Otavi
,
6
where the court authoritatively reaffirmed the principle that the
exercise of an in­corporeal right can be the subject of

spoliation via the concept of
quasi posses­sio
. The court
held that in order to establish
quasi possessio
, an
appli­cant must show actual use (‘
daadwerklike
gebruik
’) of the right in question.
7
The court regarded
Shapiro’s
case, among others, as
an example where our courts had afforded protection to the
possession of rights.
8
Counsel
for the applicant also relied on
African Billboard Advertising
(Pty) Limited v North and South Central Local Councils,
9
where a Full Bench afforded spoliatory relief to a party that had
erected certain advertising signs on property owned by another
in
the Durban area, which signs had been unlawfully removed by the City
Council. Although the issue in that case was whether the
City
Council’s conduct was justified by the statutory provision under
which it purported to act, the court had no difficulty
in
recognising that the erector of the signs on property owned by
another was capable of being despoiled of possession, through
the
removal of the signs, without any physical presence on the property
on which the signs were erected.
On
the face of it, these decisions provide strong support for the
applicant’s stance herein. The respondents contended, however,
that the
manda­ment van spolie
is not the appropriate
remedy to be resorted to where specific performance of contractual
obligations is claimed. In support of
this proposition, they relied
inter alia
on two recent decisions of the Supreme Court of
Appeal, namely
Telkom SA Ltd v Xsinet (Pty) Ltd
10
and
First Rand Limited t/a Rand Merchant Bank
et al
. v
Scholtz NO
.
11
In
Xsinet
the SCA refused to accept a contention that the
quasi-posses­sion of a right to receive Telkom’s
telecommunication services
con­sisting of the actual use of
those services must be restored by the possessory remedy. In
rejecting this argument, Jones
AJA pointed out that this is ‘a
mere personal right and the order sought is essentially to compel
specific performance of a contractual
right in order to resolve a
contractual dispute. This has never been allowed under the
manda­ment van spolie and there is no
authority for such an
extension of the remedy’.
12
This
principle was reiterated in the
First Rand
case, where it was
stated that possession of ‘mere’ personal rights (or their
exercise) is
not
protected by the
mandement
13
van spolie
and where it was held that, in order to qualify for
such protection, the right held in
quasi possessio
must be a
‘gebruiksreg’ or an
incident
of the possession or control
of the property:
‘
The
mandement van spolie does not have a “catch-all function” to
protect the quasi possessio of all kinds of rights irrespective
of
their nature. In cases such as where a purported servitude is
concerned the mandement is obviously the appropriate remedy,
but
not where contractual rights are in dispute or specific performance
of contractual obligations is claimed
: its purpose is the
protection of quasi possessio of certain rights. It follows that the
nature of the professed right, even if
it need not be proved, must
be determined or the right characterised to establish whether its
quasi possessio is deserving of protection
by the mandement.’
14
[emphasis added]
On
the facts of the present case it is apparent that the applicant had
a
contractual
right to keep its ATM device on the first
respondent’s premises in the position as agreed and that it had
actually been exercising
that right at the time that the first
respondent removed its ATM. Its claim in these proceedings, in
essence, amounts to a claim
for specific performance of its
contractual rights – something which, according to the authorities
just referred to, is not permissible
by means of the
mandament
van spolie
. As a judge of first instance, I am, of course, bound
by those decisions, unless I am satisfied that they are
distinguishable from
the present matter. Counsel for the applicant
have been unable to persuade me that those decisions are in fact
disting­uishable,
nor am I able to distinguish them.
I
am accordingly driven to the conclusion – albeit not without some
reluctance – that the applicant has failed to establish
its
entitlement to spoliatory relief on the facts of this case. Bearing
in mind the underlying rationale for the existence of the
mandament,
viz to prevent people from taking the law into their own hands, this
may be regarded as an unfortunate result, but then
hard cases,
notoriously, make bad law.
In
these circumstances, it follows that the application must be
dismissed with costs.
B
M Griesel
Judge of the High Court
1
Record
p 83 para 10 [emphasis added].
2
Record
p 91 para 28.2.
3
Herbstein
& Van Winsen
The
Civil Practice of the Supreme Court of South Africa
4ed
(1997) 368 and authorities cited therein.
4
1949
(4) SA 985
(W).
5
Supra
at 991.
6
1989
(1) SA 508
(A) at 515D.
Bon
Quelle
was expressly approved and followed by the Supreme Court of Appeal
in
Impala
Water Users Association v Lourens NO & Others
2004 (2) All SA 476
(SCA) para 20, where Farlam JA described it as
‘carefully reasoned’ and ‘a scholarly judgment’.
7
At
514I.
8
At
515C–D.
9
2004
(3) SA 223
(N).
10
2003
(5) SA 309
(SCA).
11
[2007]
1 All SA 436
(SCA).
12
Para
14.
13
Note
the difference in terminology between the traditional
mandament
and
the court’s preference for
mandement
in
First
Rand
.
14
Supra
para [14] (other case references and footnotes omitted). See also
Kotze
v Pretorius
1971
(4) SA 346
(NC) at 350D–E;
Plaatjie
and Another v Olivier NO and Others
1993 (2) SA 156
(O) at 159J;
Shoprite
Checkers Ltd v Pangbourne Properties Ltd
1994 (1) SA 616
(W) at 623C.