ISC Projects (Pty) Ltd v Siemans Ltd and Others [2005] ZAFSHC 35 (10 March 2005)

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[2005] ZAFSHC 35
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ISC Projects (Pty) Ltd v Siemans Ltd and Others [2005] ZAFSHC 35 (10 March 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No. : 406/2005
In
the matter between:
ISC
PROJECTS (PTY) LTD
Applicant
and
SIEMENS
LTD
First
Respondent
ROOFING
GUARANTEE (PTY) LTD
Second
Respondent
SASOL
TECHNOLOGIES (PTY) LTD
Third
Respondent
CORAM:
EBRAHIM
J
JUGDMENT:
EBRAHIM
J
HEARD ON:
24
FEBRUARY 2005
DELIVERED ON:
10
MARCH 2005
[1] This is an
application for spoliatory relief. The applicant claims the
following relief.
“
1. That
the Applicant’s failure to comply with the provisions of the Rules
of Court pertaining to service and process, be condoned
and this
matter be heard as an urgent application in terms of the provisions
of Rule of Court 6(12).
2. That a
Rule
Nisi
be issued calling upon
the Respondents to furnish reasons, if any, on
4
MARCH 2005
AT 09H30, or as
soon thereafter as this matter may be heard, why:
2.1 Applicant’s
possession of and control over the Highbay Warehouse near SASOLBURG
and to the extent that it, as sub-contractor
responsible for the
cladding of such warehouse, was in possession thereof and exercised
control over such structure, be restored
forthwith and, more
particularly, the FIRST RESPONDENT shall not refrain from employing
any other contractor or sub-contractor to
clad such warehouse;
2.2 The
FIRST RESPONDENT should not be ordered to pay the costs of this
application;
2.3 Such
other Respondents as may choose to oppose this application shall not,
jointly and severally with the FIRST RESPONDENT, be
ordered to pay
the cost of this application;
2.4 Such
further and/or alternative relief as may be deemed expedient,
necessary or reasonably, should not be granted to the Applicant.
3. That
the relief provided for in sub-paragraph 2.1 above shall serve as
interim relief and an interim interdict with immediate effect.
4. That
service of this application and this order be effected on SECOND and
THIRD RESPONDENTS by the Sheriff in terms of the Rules
of Court.
[2] This
matter was initially brought by way of urgency and postponed to allow
the filing of papers by the respondent and the applicant
and the full
ventilation of the issues. Urgency was not argued before me and in
any event it is trite that the nature of the relief
generally lends
itself to urgency. The parties proceeded to argue the matter before
me as to whether or not final relief should
be granted. In any
event, I am disposed to deal with this matter as one of urgency.
[3] It is long settled
that there are two essential requirements to be satisfied in order to
obtain a spoliation order. The applicant
must prove possession and a
forced/wrongful/unlawful deprivation. Possession is a matter of fact
and is not generally proved by
recourse to the agreement relating to
the underlying merits of the dispute between the parties.
[4] In the present case
the applicant alleges possession of a warehouse. Such possession
must be established on the evidence. The
applicant shows that he was
a subcontractor engaged to do cladding work on the warehouse which it
is common cause was in the process
of being erected by the first
respondent on behalf of third respondent.
[5] Respondent alleges
that the contract on which the applicant places reliance did not
entitle the applicant to possession of or
control over the entire
warehouse, but only to “access to and use of a qualified or
restricted area or section of the warehouse
at any one time”. What
is in the contract is not relevant for the determination of this
application, because whether or not there
was possession is a fact to
be determined irrespective of what the contract provides. If as a
matter of fact the applicant’s possession
and use was restricted
only to that provided in the contract, the applicant will have failed
to establish possession and control
over the entire site of the
warehouse. Conversely if the facts show that the applicant exercised
de facto
possession and control notwithstanding the limited provision of the
contract, it would have satisfied the first requirement of possession
for a spoliation order.
[6] In the founding
affidavit the applicant concedes partial possession in paragraph 6.1
where the following is stated:
“
The
purpose of this application is to claim restoration of the
Applicant’s, albeit partial, possession of and/or control over a
partly completed warehouse situated near SASOLBURG and within the
area of jurisdiction of this Honourable Court.”
[7] The applicant further
contends in sub-paragraph 6.4 of its founding papers that it has been
“
unlawfully
deprived of the possession of and control over the relevant structure
and which it enjoyed due to its contractual obligation
towards the
FRIST RESPONDENT to clad the structure as aforesaid and that it is,
consequently, entitled to the restoration of such
possession and
control”.
[8] First respondent is
the main contractor for the erection of what applicant contends is a
“gigantic warehouse”. The applicant’s
role in the construction
of this warehouse is limited to cladding or the application of an
outer skin. The applicant established
itself on site together with
its own sub-contractors. A dispute then erupted between the
applicant and first respondent over the
quality of applicant’s
performance. First respondent refused to pay applicant and deprived
applicant’s employees from further
access to the site. In addition
first respondent removed applicant’s containers in which its site
offices and equipment were housed
from the site. This gave rise to
spoliation proceedings in which an order was granted in applicant’s
favour. In the present proceedings
the first respondent has
respected the applicant’s possession of its site offices and
equipment which had been restored to the
applicant pursuant to the
earlier order granted in respect of prior application proceedings
brought by the applicant for the restoration
of same. Pursuant to
the granting of that order, the first respondent employed the second
respondent to complete the work.
[9] A close scrutiny of
the founding affidavit does not review any facts to support the
submissions made by the applicant that it
had the complete control
and possession over the entire warehouse in respect of which it seeks
the relief of restoration of possession.
It is clear that the
applicant was in possession of its offices and storage facilities and
the highwatermark of its founding papers
is:
“
12.5 the
structure was placed at the disposal of the Applicant for purposes of
cladding same and the Applicant did commence therewith”.
That does not show
factual possession and control of the Highbay Warehouse. At best it
can be concluded that the applicant was given
contractual access
which first respondent has at present effectively denied the
applicant by the employment of a replacement sub-contractor
- that is
the second respondent.
[10] Accordingly, in my
view, the applicant has failed to establish either possession of the
Highbay Warehouse or that it was unlawfully
deprived thereof and the
application must therefore fail.
[11] I
make the following order:
The application is
dismissed with costs including those consequent on the employment
of two counsel, where employed, such costs
to include the costs
occasioned by the postponement on 8 February 2005.
_____________
S. EBRAHIM, J
On
behalf of applicant: Adv. M.H. Wessels SC
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of first respondent: Adv. J.P. de Bruin SC and
Adv.
J.Y. Claasen
Instructed
by:
E
G Cooper & Sons Inc
BLOEMFONTEIN
/sp