About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2024
>>
[2024] ZANCHC 17
|
|
QCK Lezmin 4791 CC and Others v Sikhova Importers CC and Another (CA & R 65/2022) [2024] ZANCHC 17 (23 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA,
NORTHERN
CAPE DIVISION, KIMBERLEY
Not
Reportable
Case
No: CA & R 65/2022
In
the matter between:
QCK
LEZMIN 4791 CC
FIRST APPELLANT
LORE
TRADE AND INVESTMENT (PTY) LTD
SECOND APPELLANT
DULOSTYLE
(PTY)
LTD
THIRD APPELLANT
And
SIKHOVA
IMPORTERS CC
FIRST RESPONDENT
RE
HARD ROCK MINInG (PTY) LTD
SECOND RESPONDENT
Neutral citation:
QCK Lezmin 4791 CC and Others v Sikhova Importers and Another
(Case no CA & R 65/22) (23 February 2024)
Coram:
PHATSHOANE AJP, NXUMALO J and OLIVIER AJ
Heard:
16 October
2023
Delivered:
23
February 2024
Judgment
Phatshoane
AJP
Introduction
[1]
This appeal, with leave of the court a quo (per Moses AJ), was
initially on a limited basis. It is now on
unqualified terms, with
leave of the Supreme Court of Appeal, against the whole of the
judgment and order of the court a quo in
which it had directed that
QCK Lezmin 4791 CC (QCK) and Dulostyle
(Pty) Ltd (Dulostyle), the first and third appellant, restore
to Sikhova Importers
CC (Sikhova), the first respondent, its peaceful
and undisturbed possession of a certain remainder of a farm known as
Koedoeskloof
602, Griekwastad, Northern Cape, including some machines
and equipment moved by Sikhova onto that property; ordering Sikhova
and
Re Hard Rock Mining (Pty) Ltd (Hard Rock), the second respondent
(the respondents), to pay the costs of Dulostyle in respect
of
the declaratory relief and dismissing
QCK and Lore
Trade and Investment (Pty) Ltd (Lore), the second appellant’s,
application to strike-out the whole of the
replying affidavit or the greater part of its paragraphs with costs
.
Dulostyle did not participate in this appeal.
Applications for
condonation
[2]
QCK and Lore defaulted in complying with rule 49
(6)
(a)
which
requires that within sixty days after delivery of a notice of appeal,
an appellant make written application to the registrar
for a date for
the hearing of the appeal and rule 49(7)(a) which provides in part
that simultaneously with the application for
a date for the hearing
the appellant file with the registrar three copies of the record on
appeal and furnish two copies to the
respondent. Therefore,
they seek condonation for non-compliance and the reinstatement of the
appeal insofar as it may be
deemed to have lapsed. In their
application seeking condonation they demonstrated that their
attorneys acted with due diligence
in an attempt to secure the appeal
record and had not adopted a supine attitude in prosecuting the
appeal.
[3]
The record which they sought to file, which delayed the prosecution
of the appeal, constitutes of oral
argument by counsel in the court a
quo which naturally ought not to have formed part of the appeal
record. The attorneys for
QCK
and Lore stated that they laboured under the misapprehension that the
filing of the record concerned was necessary and were
incorrectly
advised by the registrar’s personnel for that to be the case
which advise they bona fide accepted. It is so that
t
he
administration of justice is sometimes a demanding discipline that
even the most skilful practitioners do make mistakes.
[1]
In my view, t
he
forceful and prolix opposition to the reinstatement of the appeal by
Sikhova and Hard Rock is fastidious and not well-founded.
This is so
because the appeal lapsed on 25 August 2022 and the application for
condonation and reinstatement was brought on 23
September 2022,
merely a month later. The delay is not excessive and, in the interest
of justice, condonable. It follows that the
application for
condonation and the reinstatement of the appeal ought to be upheld
for the further reason that it has reasonable
prospects of success.
[4]
Sikhova and Hard Rock were also late with the filing of their heads
of argument, having delivered this
only 05 days prior to the hearing
of the appeal. Thus, they sought condonation which went unopposed.
Heads of argument are for
the convenience of the court and so their
application for condonation would have to succeed. There can hardly
be any prejudice.
The background
[5]
QCK is the owner of Farm Koedoeskloof 602 (the farm). At all relevant
times Lore held a prospecting
right over a portion of the farm.
The
disputes between appellants and the respondents have their origin in
two agreements. First, the so-called Surface Use, Access
and Mining
Royalty Agreement (Surface Use Agreement) allegedly concluded during
mid-August 2019 in terms of which Sikhova and Hard
Rock aver that,
QCK, being the registered owner of the farm, inter alia
,
purportedly granted Sikhova access to the farm so as to prospect
for, dig, mine, win, remove, for its own benefit and to dispose
of
manganese ore and iron ore. Furthermore, Sikhova and Hard Rock allege
that QCK granted Sikhova an unrestricted right of access
to the farm
and to bring any plant, machinery or equipment reasonably required to
exercise an exclusive right to prospect for and
remove the minerals
mentioned from the farm for its own benefit and account.
[6]
QCK and Lore intimated that the Surface Use Agreement was designed to
be a tripartite agreement which
would involve QCK, Lore and Sikhova.
It is not in dispute that Lore was not a signatory to the said
agreement because it says that
at no stage did it agree to any of the
terms of the Surface Use Agreement with either QCK or Sikhova. Lore
went on to say that
its involvement in the said agreement is a legal
substratum to its lawful existence. Absent its participation, it
argued, the agreement
was not validly entered into.
[7]
Sikhova and Hard Rock allege that a prospecting right, similar to the
one described above, was granted
to the joint venture between Lore
and Sikhova which had been defined in the Surface Use Agreement as
the “Unincorporated
Hard Rock Mining Koedoeskloof Joint
Venture”. The operation of the agreement would allegedly
continue until Hard Rock Mining
Koedoeskloof Joint Venture or Hard
Rock as its successor-in-tittle had completed its exploration of the
minerals.
[8]
In exchange for the rights granted by QCK under the Surface Use
Agreement, Sikhova was required to pay
R30 000 monthly
occupation fee on or before the 15
th
of each month for the
first six months of the mining activities and thereafter a royalty to
the extent described in the agreement.
In the event of failure by the
“Joint Venture” or Hard Rock, as the joint venture’s
successor-in-tittle, to pay
the amounts due in terms of the agreement
or in the event of, inter alia, a material breach of the
agreement and failure
to remedy such breach within 90 days, QCK
would be entitled to cancel the agreement and resume possession of
the prospecting
area without prejudice to its claim of the arrear
amounts owing or damages it may have suffered by reason of the
breach.
[9]
The second agreement, the joint venture (JV), was allegedly concluded
on 16 August 2019 between Sikhova
and Lore, as the holder of the
prospecting rights. The JV is to the effect that “the company”,
which Sikhova
and Hard Rock submit is Hard Rock, would locate,
prospect, explore, mine and market the minerals for an indeterminate
period unless
the JV was mutually cancelled by the parties. According
to Sikhova and Hard Rock, Lore had to apply for the extension of the
prospecting
rights or for the granting of mining rights in respect of
all minerals available on the farm which obligation would survive any
termination of the JV. Sikhova would hold 700 shares of the issued
share capital whereas Lore 300 shares. Any of the parties who
wished
to withdraw from the JV would be required to give the other party
three months’ written notice provided that such
party would not
be discharged from performing any obligation already due or becoming
due.
[10] QCK and
Lore intimated that the above JV was entered into so as to promote
and incorporate a company which would
exploit and exercise the
prospecting rights. They maintain that the JV in question did not
materialise because, inter alia, a company
which was to be “promoted”
to the JV was never registered or incorporated. According to them
Hard Rock is unknown to
Lore and denied that it was the company
envisaged by the JV. They submitted that it was incorporated by
Sikhova acting on a frolic
of its own and that none of the terms of
the JV were given effect to.
[11] In the
exercise of the rights conferred upon Sikhova in terms of the above
agreements Sikhova and Hard Rock state
that as from mid-August 2019
they gained access to the farm and commenced extensive prospecting
operations on the identified portion
of the farm (the prospecting
area). They further claim that various tests were conducted to
determine the existence not only of
manganese ore and iron ore but
also other minerals. They further contend that they had been in
peaceful and undisturbed possession
of the prospecting area. It is
not in dispute that Sikhova had moved various machinery and equipment
on the farm such as one Hitachi
Front End Loader, two Kamatsu PC 600
Excavators and various components of the crushing and screening
Plant.
[12] Sikhova
and Hard Rock state that about four months later, during mid-December
2019, they temporarily ceased operations
because various heavy
machinery and equipment, meant for further exploration on the
property, could not be moved thereon because
of an embargo on
vehicles carrying abnormal heavy loads on the roads during the
festive season. On Sikhova’s and Hard Rock’s
return to
the farm during January 2020, to continue with their mining
activities, they claim, QCK refused them access into
the farm
including access to their machinery and equipment in that QCK
replaced the locks mutually used by them with theirs.
[13] As
support for their contention that they had been despoiled, Sikhova
and Hard Rock heavily relied on a letter
dated 25 January 2020 from
Ms J M Labuschagne, the erstwhile legal representative for QCK. The
translated relevant part reads:
“
..Our
instructions are that our clients had a partially oral, partially
written agreement which terms and conditions were breached
by your
client in that your client had fallen in arrears with two months’
occupation fee in the amount of R60 000.00….your
client has
failed to perform in terms of the partially oral and partially
written and wilfully ceased exploration operations, which
actions are
to the detriment of our clients and have placed them in a financial
predicament.
Your client’s
actions therefore leave our client no choice but to cancel the
consent to surface and the agreement and we confirm
our instructions
that the agreement is hereby cancelled and our client specifically
cancels access to the surface.
Our instructions are that
our client exercise their retention rights on the assets of Sikhova
Importers CC held on Farm Koedoeskloof,
Griekwastad, and exercises
same until such time as the arrears of R60 0000.00 occupation fee had
been settled in full.
Our instructions are that
should your client unlawfully remove the assets our client will bring
a special application, the costs
of which your clients will be held
liable.”
[14] Sikhova
and Hard Rock submitted that what can be distilled from the letter
above is that the denial of access had
been on two bases. First, that
Sikhova owed QCK R60 000 occupation fees and had deliberately
ceased exploration activities
on the property. Secondly, that the
Surface Use Agreement was summarily cancelled consequent upon the
alleged breaches, thus Sikhova
and Hard Rock were informed that QCK
was exercising its right of retention over all Sikhova’s assets
until the arrear of
R60 000 had been paid.
Sikhova
and Hard Rock maintain having paid the arrear on 28 January 2020 and
denied having ceased exploration activities.
[15]
As already discussed, QCK and Lore dispute the existence, validity
and enforceability of the JV and the
Surface Use Agreement
.
To the extent that the JV may be said to have been valid, which QCK
and Lore deny, they intimated that Sikhova and Lore were joint
parties to the agreement
and further t
hat
the rights arising from the said agreement (if any) accrued to the
said parties jointly and could not be exercised by Sikhova
to the
exclusion of Lore. They further deny that the
Surface Use
Agreement
gave the respondents access to the
farm to exploit mineral resources, for their own benefit. They assert
that the
Surface Use Agreement
was
cancelled not only because of the breach but also on the basis that
Lore was never a party thereto. They further contended
that the
payment by Sikhova, which was for past access, was made following the
cancellation of the
Surface Use Agreement
,
to the extent that it existed, which QCK and Lore deny.
[16]
Reference is also made in the papers to a “new joint venture
agreement” concluded between Dulostyle
and Lore (the third
agreement) which concerned
the exercising of
the prospecting rights in issue by Dulostyle which also took
occupation of the portion of the farm for that purpose.
It is on that
basis that
Sikhova and Hard Rock claim that Dulostyle equally
despoiled them, alternatively that it occupied the farm unlawfully
and had to
vacate the prospecting area.
The relief sought in
the court a quo
[17]
Sikhova and Hard Rock sought an order in the court a quo
directing QCK to restore to them,
ante omnia
, immediate
peaceful and undisturbed possession of the farm, including their
machinery and equipment that were still on the farm.
The same
spoliatory relief was sought against Dulostyle, alternatively, that
Dulostyle vacate the property. They also sought a
declarator that the
JV between Lore and Dulostyle was unlawful and of no force and
effect. Further consequential relief pertaining
to costs of the
application against QCK but also against Lore and Dulostyle, in the
event of opposition, was sought. In addition,
QCK, Lore and Dulostyle
sought an order striking
out the whole of the
replying affidavit or the greater part of its paragraphs.
[18]
On the date of the hearing of the applications Sikhova and
Hard Rock abandoned the declaratory relief.
The
multifarious disputes regarding the validity and enforceability of
the JV and the
Surface Use Agreement
were largely central to the declaratory relief that Sikhova and Hard
Rock sought against Lore and Dulostyle. That relief, as already
mentioned, was aborted.
What thus remained for consideration
in the court a quo was the appellants’ application to strike
out; the respondents’
spoliation application and the ancillary
relief attendant to the costs of the applications.
The judgment of the
court a quo
[19]
In a judgment that stretches over 63 pages the court a quo found that
Sikhova gained access to the farm and its
prospecting area in
mid-August 2019 with its machinery and equipment; it conducted mining
activities on the farm from mid-August
2019 to December 2019 and had
been in peaceful and undisturbed possession of the portion of the
farm. The court held that Sikhova
was denied access to the farm from
January 2020 in that QCK, whom Lore made common cause with, refused
to open the gate(s) which
remained locked. The denial of access, the
court found, was manifested in the cancellation of the agreements,
which act was used
by QCK and Lore to prohibit Sikhova and Hard Rock
from accessing the farm and to remove the machinery. The court held
that the
acts were carried out without any court order authorising
the ejectment and that Sikhova had never consented to vacating the
farm.
Accordingly, so the court reasoned, the denial of access
amounted to wrongful dispossession of the farm. It rejected the
appellant’s
submission that Sikhova and Hard Rock had abandoned
the farm as speculative and unsustainable.
[20]
As regards Dulostyle, the court a quo
held, that it “gained
possession of the mining area based on a “new joint venture”
between [itself] and [Lore]
with the permission and authority of
[QCK] . . . [it] literally [stepped] in and [gained] the benefit of
the spoils”. The
bona fides of Dulostyle’s occupation of
the prospecting site, it held, were questionable. It was on the
aforesaid bases that
the court a quo granted the spoliation order
against QCK and Dulostyle.
[21]
Turning its attention to the appellant’s application to strike
out the whole of the replying affidavit or
the greater part of its
paragraphs that court reckoned that the affidavit in issue had three
parts. The first part, it found, was
a fair and necessary exposition
of the status of the case because it outlined the chronology of the
process followed from the date
of service of the application. The
layout assisted the court in revisiting the various allegations set
out in the papers. The second
part, the court concluded, was
necessary as it addressed the allegations made by QCK and Lore which
were denials of a general and
vague nature. This, the court found
helpful in determining where the balance of probabilities laid.
The third part, albeit
repetitive, the court held were responses to
the answering affidavit and had been within permissible limits.
[22]
The court a quo went on to hold that the averments in the replying
affidavit contradicted many of the allegations
contained in the QCK
and Lore’s answering affidavit and was of the view that QCK and
Lore ought not to have complained of
prejudice in the circumstances
where their assertions were corrected and shown to have been
untenable. Accordingly, the court dismissed
the application to strike
out with costs.
[23]
Finally, the court a quo awarded costs to Sikhova for its success
with the spoliatory relief. In respect of the
aborted declaratory
relief the court ruled that Sikhova and Hard Rock bear Dulostyle’s
costs. It made no similar order in
favour of Lore, which had also
opposed the declarator. The court reasoned that Mr Jan Erasmus, the
sole member of Sikhova and the
sole director of Hard Rock, deposed to
the founding papers on behalf of both entities and there was no one,
who independently deposed
to an affidavit, representing Hard Rock.
Insofar as Hard Rock was incorporated around January 2020, the court
was of the view,
it could not be mulcted in costs save for costs in
respect of the abandoned declaratory relief.
Discussion
on the application to strike-out
[24]
As already alluded to, QCK, Lore and Dulostyle brought an application
in the court a quo to strike out Sikhova
and Hard Rock’s
replying affidavit in its entirety as constituting an abuse of court
process. In the alternative, they sought
an order that the greater
portions of the affidavit be struck out as impermissible and or
vexatious. The founding and the answering
affidavit comprise 27 and
36 pages, respectively, appendices excluded, whereas the replying
affidavit occupies a staggering 56
pages, appendices excluded,
(almost as long as the founding and answering affidavit combined).
[25]
It
is trite that t
wo
requirements must be met before an application to strike out can
succeed in terms of rule 6(15) of the uniform rules. First,
the
matter sought to be struck out must be scandalous, vexatious or
irrelevant; and secondly, the court must be satisfied that
if such a
matter is not struck out the party seeking such relief would be
prejudiced.
[2]
In
Minister
of Environmental Affairs and Tourism and Others v Phambili Fisheries
(Pty) Ltd
[3]
Schutz JA made this poignant and apt observation:
“
In the great
majority of cases the replying affidavit should be by far the
shortest. But in practice it is very often by far the
longest - and
the most valueless. It was so in these reviews. The respondents, who
were the applicants below, filed replying affidavits
of
inordinate length. Being forced to wade through their almost
endless repetition when the pleading of the case is all but
over
brings about irritation, not persuasion. It is time that the Courts
declare war on unnecessarily prolix replying affidavits
and upon
those who inflate them.”
[26]
A respondent has the right to know what case he or she has to meet
and to respond thereto, thus the general rule,
although not absolute,
is that an applicant will not be permitted to make or supplement his
or her case in the replying affidavit.
In exceptional circumstances a
court may in the exercise of its discretion allow a new matter in a
replying affidavit.
[4]
The
primary purpose of the replying affidavit is to put up evidence which
serves to refute the case made out by the respondent
in its answering
affidavit.
[5]
This is
particularly so in spoliation proceedings where speedy relief is
given upon the simple facts of possession and dispossession
which
involves, or should involve, short affidavits filed expeditiously on
those very limited issues.
[6]
[27]
It was not open to Sikhova and Hard Rock to regurgitate, in their
replying affidavit, by means of a prelude which
stretched over four
pages, the case put up in their founding papers. In my view, paras
2.2 to 2.3.6, the prelude or so-called brief
statement of Sikhova and
Hard Rock’s case, defeats the legitimate purpose of a replying
affidavit and falls to be struck
out.
[28]
In paras 2.4 to 2.11 of their replying affidavit (which comprised
about 12 pages) Sikhova and Hard Rock impermissibly
and extensively
subjected QCK and Lore’s answering affidavit to their own
argumentative and misdirected assessment prior
to refuting the
specific averments contained therein. The court a quo erroneously
lauded the approach adopted by Sikhova and Hard
Rock as having been
helpful to it. In my view, the specified paragraphs are argumentative
in nature and ought to be struck out.
[29]
From paras 3 to 49 (the so-called part three of the replying
affidavit) Sikhova and Hard Rock set out responses
to specific
paragraphs of the answering affidavit and its two supporting
affidavits. QCK, Lore and Dulostyle urged that several
paragraphs, in
this part of the replying affidavit, in particular, paras 3.2, 33,
10.2, 12.2 to 12.5, 13.2 and its subparagraphs,
21.1.2, 25.2 and its
subparagraphs, 27, 29,30, 31,33 to 36, 40 and 48 and all their
subparagraphs, be struck out as they contain
only argumentative
matter; a new matter that should have been contained in the founding
affidavit; or inadmissible evidence that
ran counter to the parole
evidence rule.
[30]
Some of the assailed paragraphs in part three of the replying
affidavit relate to the abandoned declarator and
some, which seek to
refute the averments contained in the answering affidavit, for the
most part, are either argumentative, repetitive
or seek to introduce
new evidence. This ought to be strongly deprecated. However, I am
unpersuaded that the impugned paragraphs
should be struck out. It is
so that an applicant is entitled to file a replying affidavit. Even
though the averments are inelegantly
phrased it is to be borne in
mind that
Judges
do
disabuse
their minds of any vexatious, scandalous or irrelevant matter
contained in the affidavits.
[7]
For this reason
the
application to strike out the identified paragraphs in part three of
the replying affidavit ought to fail. It follows that the
application
to strike out should succeed only in part.
Discussion
on the spoliatory relief
[31]
The spoliation application was launched on 23 September 2020,
some nine months following the spoliatory event of early January
2020.
Although this ought not to be taken as
consistent with acquiescence in the dispossession,
the delay is inordinate.
The established
principle is that spoliation must be adjudicated upon
ante
omnia
and thus speedily.
[32]
The requirements for spoliation are
(a)
peaceful
and undisturbed possession of a thing; and
(b)
unlawful
deprivation of such possession.
[8]
As I see it, insofar as Sikhova had gained access to the farm and
conducted some mining operations, the determination of
possession
does not arise because it was established. What ought to be
considered is the unlawful deprivation of possession. On
this aspect
the evidence as contained in the affidavits raised disputes of fact
which QCK and Lore contended both in this Court
and in the court a
quo that they warranted to be interrogated through the prism of
the time-honoured rule in
Plascon-Evans.
[9]
[33]
The spoliation relief sought against QCK and Dulostyle was final in
effect. In terms of the
Plascon-Evans
rule,
where disputes of fact arise on the papers, subject to certain
exceptions, a court would ordinarily rely on evidence given
by the
deponents for the respondents, in this case QCK and Lore.
[10]
The approach was restated by Harms DP in
National
Director of Public Prosecutions v Zuma
[11]
as
follows:
‘
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve
factual issues because they are not designed to determine
probabilities. It is well established under the
Plascon-Evans
rule
[
Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A)
634 – 635] that where
in motion proceedings disputes of fact arise on the affidavits, a
final order can be granted only
if the facts averred in the
applicant's (Mr Zuma's) affidavits, which have been admitted by the
respondent (the NDPP), together
with the facts alleged by the latter,
justify such order. It may be different if the respondent's
version consists of bald
or uncreditworthy denials, raises fictitious
disputes of fact, is palpably implausible, far-fetched or so clearly
untenable that
the court is justified in rejecting them merely on the
papers.’
[34]
It is to be remembered that the event of spoliation, as
articulated in the founding papers, was that QCK denied Sikhova and
Hard
Rock access to the farm “by having removed the mutually
available key from the chain locks on the gate to the property and
replaced it with its own locks.”
[35]
QCK and Lore
contended that in the absence of prospecting
rights founded on a valid Surface Use Agreement being available to
Sikhova and Hard
Rock their conduct in giving effect to the Surface
Use Agreement was unlawful.
QCK stated that
Sikhova “probably abandoned the site where it had previously
prospected unlawfully when it could no longer
avoid the fact that its
conduct was unlawful.” More crucially, insofar as Sikhova
and Hard Rock had alleged that there
had been a mutually available
key for the lock on a single gate to the farm that was removed and
replaced by QCK, QCK demonstrated
that there was more than one gate
to the farm for the shared use by itself and Sikhova which fact was
acknowledged by Sikhova in
its replying affidavit. The true facts,
QCK stated, were that Sikhova had installed its own gate to gain
access to the portion
of the farm, which gate Sikhova had its own
key. It denied the existence of a mutually available key that could
be removed and
gainsaid that it replaced Sikhova’s lock with
its own.
[36]
There appears to be no good reason to regard as untrue QCK and
Lore’s version. More so because Sikhova
and Hard Rock did not
in their reply place in dispute that Sikhova had its own lock.
Instead, in their prolix replying affidavit
Sikhova and Hard Rock put
up a case at variance with the case they made out in their founding
papers. This is what their deponent,
Mr Jan Erasmus, intimated:
“
29.1
During the period mid-August 2019 to date on which the applicants
were denied access to the property
the arrangement between [Sikhova]
and QCK was that the keys to the locks at the various gates were
left, as mutually available
keys, hanging behind the gate post where
[Sikhova] could easily have reached it.
29.2
However, on our return to the property during January 2020 it was
discovered that the keys
had been removed from where they were left
during the period [Sikhova and Hard Rock] were conducting their
operations on the property.
29.3
Having noticed that the keys were so removed I assumed that the locks
on the gate to the
property had been removed and replaced with
[QCK’s] own locks.”
[37]
Apparent from the above excerpt Sikhova and Hard Rock admitted that
there was more than one gate, reference is
made to “various
gates”. They mentioned, for the very first time in their
replying affidavit, that the keys were ordinarily
“left hanging
behind the gate post” where [Sikhova] could have easily reached
them. This new evidence was clearly prejudicial
to their opponents
who could not have filed a further affidavit in response without the
court’s leave. Sikhova and Hard Rock
also “assumed”
that the lock on the gate to the property had been removed and
replaced by QCK. That the antagonists
locked the gates, as stated in
the founding papers, was no longer factual but based on an
assumption.
[38]
A reading of the court a quo judgment shows that it was alive to the
existence of the disputes of fact on the crucial
evidence that
pertained to the alleged act of spoliation. This notwithstanding, the
court did not subject these disputes to closer
scrutiny. It impliedly
took a robust view of the matter and labelled QCK and Lore’s
version (the respondents’ in the
court a quo) as vague and
untenable without any substantiation.
[39]
The alleged act of spoliation and unlawful deprivation of
possession, in the present case, must also be viewed contextually
having
regard to the events that followed it. Some of the
contemporaneous written exchanges between the parties provide useful
exposition.
In a letter of 23 January 2020 by Sikhova’s
erstwhile attorneys, Odendaal & Kruger Attorneys, to Ms
Labuschagne, QCK’s
erstwhile legal representative, a proposal
was made to purchase the farm from QCK. More strikingly, no mention
is made of any spoliation,
an issue which was supposed to have been
the main point of contention at the time.
[40] In a
further letter of 28 January 2020, the attorneys for Sikhova
requested QCK’s attorneys to provide written
confirmation that
it would not prevent Sikhova from carrying on with the exploration
work. Once more no mention is made of any
act of spoliation. A letter
dated 17 March 2020 (which runs into five pages) by Sikhova’s
attorneys to Lore was apparently
meant to clear some
misunderstandings around the Surface Use Agreement and the attempt by
Sikhova to buy the whole farm from QCK.
The letter called for an
urgent meeting to resolve contractual disputes – again nothing
was said about spoliation, the matter
of the moment.
[41] It was
only 6 months later, on 26 June 2020, when Sikhova and Hard Rock’s
new attorneys took over, that it
was mentioned in their letter
directed to QCK attorneys, for the very first time, that Sikhova and
Hard Rock had been despoiled.
Still, nothing in this letter was said
regarding the alleged act by QCK to change the lock. Instead, the act
of spoliation was
said to have its genesis in the cancellation of the
Surface Use Agreement. It reads in part:
“
9.
In view of the aforegoing history of the issues involved in this
matter, it is in our
view apparent:
9.2
that your client has, contrary to, particularly clause 12 of the
Surface use, Access and
Mining Royalty Agreement, unlawfully denied
our client access to the farm and furthermore cancelled the Surface
Use Access and
Mining Royalty Agreement, which amounts to an unlawful
spoliation and has, in so doing, caused our client’s suffering
losses
amounting to millions of rand.”
[42]
The
above cancellation of the Surface Use Agreement through Ms
Labuschagne’s letter of 25 January 2020, in addition to the
alleged
changing of the lock, appeared to have weighed with the court
a quo as an act of spoliation although in its judgment on leave to
appeal the court stated that Sikhova did not rely on the cancellation
as constituting an act of spoliation. In its main judgment
the court
remarked:
“
Objectively
therefore, on the facts at the disposal of this Court, that gate to
the property remained locked and denied the first
applicant at least,
any access as from January 2020 until at least March 2020, and which
denial of access to the said property
was further manifested in their
[the respondents] respective “cancellation” of the two
agreements as afore-stated,
which cancellation was used by both the
first respondent and the second respondent to, in express terms,
prohibit the applicants…from
accessing the property..”
[43]
In
B
isschoff
and Others v Welbeplan Boerdery
[12]
reliance
had been placed on a letter which called for cancellation of a
contract for breach as constituting an act of spoliation.
It was
there held that the mere use of 'strong and unequivocal' words in a
letter, that a person should not trespass upon land,
does not
constitute deprivation, let alone unlawful deprivation, of possession
of the land. The SCA held that by instructing their
attorneys to
write to the respondent, the appellants did no more than exercise
their contractual rights of cancelling the lease
agreements. One of
the consequences of cancellation, as the appellants saw it, was that
the respondent was not entitled to remain
in possession of the
property. The SCA further quoted with approval the Namibian decision
in
The
Three Musketeers Properties (Pty) Ltd and Another v Ongopolo Mining
and Processing Ltd and Others
[13]
where it was said:
“
Describing
the contents of the letter . . . of 28 August 2006 or the addressing
of that letter to appellant as an act of spoliation
is, in my
opinion, stretching the meaning of the word spoliation beyond
permissible limits, grammatically speaking, or is an interpretation
beyond what common sense would allow. The most one can say of that
letter is that it constitutes a threat and appellant's remedy
for
that would be no more than to seek an interdict against Respondent,
as nothing done by the letter makes the principle
spoliatus
ante omnia restituendus est
applicable.”
[44]
The principles adverted to in the above decisions apply equally to
the present matter.
In
concluding as it did, the court a quo erred because spoliation
is
not available for threatened deprivation of possession. It is a
remedy aimed at the actual loss of possession.
[14]
Its finding with regard to Dulostyle, as already discussed, was that
its possession was questionable. Relying on the decisions
of the High
Court in
Malan
v Dippenaar
[15]
and
Painter
v Strauss
[16]
the
court a quo held that even a bona fide possessor of a spoliated
property may be ordered to restore possession of the property
so
spoliated. The view expressed in
Malan
and
Painter
is
certainly not definitive because there is a differing opinion to the
effect that spoliation does not lie in circumstances
where possession
of the property had passed into the possession of a bona fide third
party.
[17]
In
Monteiro
and Another v Diedricks
[18]
the SCA found it unnecessary to enter upon the terrain of the
academic controversy regarding the availability, in principle, of
the
remedy under those circumstances. It held:
“
That is so because
the
mandament
by its nature may involve either
mandatory elements, such as the delivery of movable property, or
prohibitory elements, as
in the case where a party is restrained from
preventing certain steps being taken to restore possession. Where
the order cannot
be carried into effect, it cannot, competently, be
granted. Whether the order can be carried into effect is a question
of fact
to be determined by the court asked to grant an order.”
[45]
On the very limited evidence available following the alleged
spoliatory incidents, Lore had concluded a new joint
venture
agreement with Dulostyle which took possession of the prospecting
area. Clearly, Dulostyle could never have been
the spoliator.
There is also no evidence to suggest that it did not become the new
possessor in good faith or took the law into
its own hands.
[46]
With regard to the machinery and equipment, the facts speak for
themselves. It is so that in a letter
dated 25 January 2020 by Ms
Labuschagne QCK purported to exercise its right of retention over
Sikhova’s assets subsequent
to Sikhova’s alleged breach.
However, i
n a letter dated 12 March 2020 by Lore to Sikhova,
Sikhova was notified that the JV was cancelled. More relevant for
present purpose,
Sikhova was also instructed to remove its equipment
from the property within a period of 21 days. It may well be that the
instruction
was absurd, as Sikhova and Hard Rock argued, because Lore
had no authority over the farm or machinery. However, by means of an
e-mail dated 22 July 2020, Ms Labuschagne informed Sikhova’s
attorneys:
“…
(Y)our
client [Sikhova] contacted our client directly to remove his
machinery from the property and was requested to arrange for
[the]
removal of the machinery through our offices…
You are requested to
furnish us with a list of machinery your client intent to remove from
our client’s property as well as
information on persons and/or
representatives who will assist in removing the machinery and
equipment”
Apparent from the above
correspondence, it remained open to Sikhova to collect its assets
from the farm. As for Hard Rock,
there could hardly have been
any act of spoliation against it because it was incorporated and
registered only on 21 January 2020,
following the alleged spoliatory
events.
[47]
On the aforegoing analysis, the court a quo erred in concluding that
Sikhova and Hard Rock had been unlawfully
deprived of possession. Its
order stands to be set aside on this score.
The
question of costs
[48]
On the conclusion I have come to, in respect of the application for
condonation and the reinstatement of the appeal,
in the normal
course, a party who seeks an indulgence from the court ought to bear
the costs. I have already found that the prolix
opposition to the
application for condonation and reinstatement of the appeal was
fastidious. Therefore, it follows that Sikhova
and Hard Rock ought to
pay those costs. The costs of the appeal itself including costs in
respect of the application for leave
to appeal present no difficulty
and must follow the result.
[49]
That leaves costs in the court a quo. An appeal court will not
lightly interfere with the exercise of the discretion of
a
court of first instance which granted costs, even where it is of
the view that it would itself have made a different order. It
will only interfere in the event of a misdirection or irregularity,
or if there was an absence of grounds on which a court, acting
reasonably, could have made the order in question.
[19]
As already alluded to, the declaratory relief was aborted on the
morning of the hearing of the application. It was contended for
Lore
that it had, like Dulostyle, opposed the abandoned declarator but the
court a quo awarded costs in respect of that relief
in favour of
Dulostyle excluding Lore. The differential treatment, so it was
argued, was unjustified.
[50]
In its main judgment there is a dearth of reasoning by the court a
quo why Lore was deprived of its costs. However,
in the
leave-to-appeal judgment, the court a quo took issue, in the main,
that Lore made common cause with QCK and Dulostyle in
opposing the
whole application. The reasoning is unpersuasive and certainly does
not explain why Lore had to be deprived of its
costs. Lore, like
Dulostyle, having opposed the application, and in particular the
aborted relief, was entitled to its costs in
terms of the normal rule
which is to the effect that when relief is abandoned a party so
abandoning should pay the costs of the
other party. However, I am not
swayed that such costs should be on a punitive scale as contended for
by QCK and Lore. Insofar as
the court a quo made no costs order for
the benefit of Lore, in respect of the abandoned declarator, it did
not exercise its judicial
discretion properly which merits our
intervention.
Insofar
as I have determined that the application to strike out ought to have
succeeded in part, I am of the view, that each party
should bear its
own costs.
In
the result, the following order is made.
Order:
1.
The application for condonation and reinstatement of the
appeal is granted with costs;
2.
The appeal is upheld with costs including costs of the
application for leave to appeal and costs consequent upon the
employment
of senior counsel where so employed;
3.
The order of the court a quo is set aside and in its place is
substituted the following:
‘
1. The
application is dismissed with costs including costs consequent upon
the employment of senior counsel, where so employed.
2. The
applicants are ordered to pay the costs of Lore
Trade and Investment (Pty) Ltd
and
Dulostyle
(Pty) Ltd,
the second and third respondents, in respect of the
declaratory relief, including costs consequent upon the employment of
senior
counsel, jointly and severally the one paying the other to be
absolved.
3. The application to
strike out is upheld in part with no order as to costs.’
Phatshoane AJP
Nxumalo
J and Olivier AJ concur in the Judgment and order of Phatshoane AJP
Appearances
:
For
the appellants:
Adv
SD Wagener SC
Instructed
by Van De Wall Inc, Kimberley.
For
the respondents:
Adv
J Hershensohn
Instructed
by Haarhoffs Inc, Kimberley.
[1]
Albeit said in a different context, see the remarks by Steyn J in
Waar
v Louw
1977 (3) SA 297
(O) at 304F-G.
[2]
Beinash
v Wixley
[1997] ZASCA 32
;
1997
(3) SA 721
(SCA)
at
733B;
Helen
Suzman Foundation v President of the Republic of South Africa
2015
(2) SA 1
(CC)
para
27.
[3]
Minister
of Environmental Affairs and Tourism and Others v Phambili Fisheries
(Pty) Ltd; Minister of Environmental Affairs and
Tourism and Others
v Bato Star Fishing (Pty) Ltd
2003
(6) SA 407
(SCA) para 80.
[4]
Mostert
and Others v FirstRand Bank Ltd t/a RMB Private Bank
and
Another
2018
(4) SA 443
(SCA)
para
13.
[5]
Standard
Bank of South Africa Ltd v Sewpersadh
and
Another
2005
(4) SA 148
(C)
para
21.
[6]
Willowvale
Estates CC v Bryanmore Estates Ltd
1990
(3) SA 954
(W)
at
961E–F
[7]
Beinash
v Wixley
[1997] ZASCA 32
;
1997 (3) SA 721
(SCA) at 734A-C.
[8]
B
isschoff
and Others v Welbeplan Boerdery (Pty) Ltd
2021 (5) SA 54
(SCA) para 5.
[9]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A)
634
– 635
[10]
Thint
(Pty) Ltd v National Director of Public Prosecutions and Others;
Zuma v National Director of Public Prosecutions and Others
2009
(1) SA 1
(CC)
(2008
(2) SACR 421
;
[2008] ZACC 13)
para 8.
[11]
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA);
(2009
(1) SACR 361
;
2009 (4) BCLR 393
;
[2009] 2 All SA 243
(SCA)
para
26.
[12]
Ibid,
Fn 8.
[13]
NASC
SA 3/2007 ([2008] NASC 15).
[14]
Ibid,
Fn 8
B
isschoff
and Others v Welbeplan Boerdery
para
7.
[15]
1969
(2) SA 59
(O) at 65G – 66A.
[16]
1951
(3) SA 307 (O).
[17]
Burnham
v Neumeyer
1917
TPD 630
at 633;
Jivan
v National Housing Commission
1977
(3) SA 890
(W) at 894A – 896G.
[18]
2021
(3) SA 482
(SCA) para 21.
[19]
Vantage
Goldfields SA (Pty) Ltd and Others v Arqomanzi (Pty) Ltd
2023 (4) SA 568
(SCA) para 36; see also
Mngomezulu
v Ethekwini Metropolitan Municipality
[2019] JOL 42098
(SCA), para 25.