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[2024] ZANCHC 26
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Bright Ideas Projects 860 CC and Another v Matsapa Trading 647 CC and Others (631/2024) [2024] ZANCHC 26 (2 April 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case
No: 631/2024
Heard: 22 March 2024
Judgment delivered
electronically: 02 April 2024
Reportable YES /
NO
Circulate to Judges: YES
/
NO
Circulate to Regional
Magistrates: YES /
NO
Circulate to Magistrates:
YES /
NO
In the matter between: -
BRIGHT IDEAS PROJECTS
860 CC
FIRST APPLICANT
(REGISTRATION NUMBER
2005/045268/23)
JOHANNES CHRISTIAAN
REITZ
SECOND APPLICANT
and
MATSAPA TRADING 647
CC
FIRST RESPONDENT
(REGISTRATION NUMBER
2008/242592/23)
CHESLYN MICHAEL EDWARD
MOSTERT
SECOND RESPONDENT
PETRI VAN DER
COLFF
THIRD
RESPONDENT
JUDGMENT
STANTON J
INTRODUCTION
:
-
[1]
On 12 March 2024, the applicants,
Bright Ideas Projects 860 CC
(“Bright
Ideas”)
and Mr JC Reitz
(“Mr JC Reitz”)
filed an urgent spoliation application, requesting the following
relief, namely that: -
1.1
The first respondent, Matsapa Trading 647 CC
(“Matsapa”)
,
the second respondent, Mr CME Mostert and third respondent, Mr P van
der Colff
(
collectively
“
the respondents”)
,
and all those holding under them, be ordered to immediately restore
to the applicants and/or the applicants’ representatives,
peaceful, undisrupted and undisturbed possession and control of all
the businesses and the premises situated at Erf 6[...], K[...]
Northern Cape Province
(“the
property”)
, and better known
as the Puma fuel station business, as well as the OK shop conducted
from the premises
(“the
businesses and the premises”)
;
1.2
The Sheriff for the relevant district be ordered to do what is
necessary to
be done and to generally assist the applicants and their
duly authorised representatives to immediately procure peaceful,
undisrupted
and undisturbed control and possession of the premises
and the businesses; and
1.3
The respondents, jointly and severally, the one paying the other to
be absolved,
be ordered to pay the applicants’ costs on the
scale as between attorney and own client, such costs to include the
costs
of two counsel.
[2]
The respondents opposed the application on the following grounds: -
2.1
The application is not urgent, and particularly not sufficiently
urgent to force a hearing
on 22 March 2024;
2.2
Numerous disputes of fact exist that cannot be resolved on the
papers;
2.3
The applicants failed to lay a basis for final relief; and
2.4
The applicants failed to establish the two jurisdictional
requirements for a spoliation
order.
[3]
Two
going concern
businesses situated on the property, the Puma fuel filling station
business
(“the
Puma business”)
and
the OK grocery business
(“the
OK business”)
form
the subject matter of this application.
URGENCY:
-
[4]
It is common cause that the conduct that the applicants allege
constitutes the unlawful
spoliation took place on 05 March 2024 and
was completed on 06 March 2024.
[5]
Mr JC Reitz contacted the respondents telephonically on 05 March 2024
whereafter Werksmans
Attorneys, acting on behalf of the respondents,
(“
Werksmans”
) addressed two letters to the
applicants, dated 05 March 2024 and 06 March 2024 respectively, the
essence of which was to convey
that the Mr CME Mostert and Matsapa
revoked any and all powers and/or authority granted to Mr JC Reitz
and any and all general
and special powers of attorney that may have
previously been issued to Mr JC Reitz, Mr G Reitz or Bright Ideas;
and as a consequence
that Bright Ideas may no longer conduct any
business operations of Matsapa, including, but not limited to the
Puma business.
[6]
On 08 March 2024, the applicants, in writing, requested an
unconditional and unequivocal
undertaking, to be provided before
13:00 on Monday, 11 March 2024, in terms of which the respondents had
to immediately surrender
their “annexation” of the
business and surrender the return of the business to Bright Ideas and
Mr JC Reitz, failing
which, an urgent spoliation application would be
launched.
[7]
No such undertaking was provided and this application was issued on
12 March 2024.
The respondents were called upon to file any answering
affidavit by 12:00 on 15 March 2024. The application was, however,
only
served by the sheriff on 15 March 2024 and the respondents filed
their answering affidavit on 19 March 2024. The applicants filed
their replying affidavit on 21 March 2024.
[8]
The requirements for urgency in applications
have been dealt with numerous times by the courts.
Rule 6(12)(b) of
the Uniform Rules of Court provides: -
“
In
every affidavit or petition filed in support of any application under
para (a) of this subrule, the applicant shall set forth
explicitly
the circumstance which he avers render the matter urgent and the
reasons why he claims that he could not be afforded
substantial
redress at a hearing in due course”.
[9]
There are thus two requirements that must be set forth in the
founding affidavit in
order to satisfy the requirements of the
rule.
[1]
Whether an applicant
has succeeded in satisfying the requirements for urgency must be
determined by the contents of the founding
affidavit.
[2]
[10]
According to the applicants: -
10.1
There is a risk that cash may be misappropriated and/or not properly
accounted for;
10.2
The value of the large quantity of stock in the form of fuel and the
items on the shelves of the OK
shop, paid by Bright Ideas, cannot be
adequately protected by an undertaking from Matsapa that the stock
would be satisfactorily
accounted for; and
10.3
If the matter is enrolled in the normal course, damages of millions
of rands and reputational damage
to the Puma fuel business would have
resulted, which would lead to irreparable harm.
[11]
According to the respondents, the applicants failed to satisfy the
requirements that it would suffer
real loss or damage if the
application is to be heard in accordance with the normal procedure;
and that the deviation from the
prescribed procedure would not unduly
prejudice the respondents. Furthermore they assert that the urgency
is self-created.
[12]
In
Luna
Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin’s
Furniture Manufacturers)
,
[3]
Coetzee J held with reference to Rule 6(12)(b) that: -
“
Mere
lip service to the requirements of Rule 6(12)(b) will not do and an
applicant must make out a case in the founding affidavit
to justify
the particular extent of the departure from the norm, which is
involved in the time and day for which the matter be
set down.’
[13]
In
Vermaak
v Taung Local Municipality
,
[4]
the
Court confirmed that: -
"The
consideration of the first requirement being why is the relief
necessary today and not tomorrow, requires a Court to be
placed in a
position where the court must appreciate that if it does not issue a
relief as a matter of urgency, something is likely
to happen. By way
of an example if the Court were not to issue an injunction, some
unlawful act is likely to happen at a particular
stage and at a
particular date."
[14]
In
the matter of
East
Rock
Trading
7
(Pty) Ltd & another v Eagle Valley Granite (Pty) Ltd &
others
,
[5]
with regard to the reasons why an applicant claims that he cannot be
afforded substantial redress at a hearing in due course, the
Court
remarked as follows: -
“
It
is important to note that the Rules require absence of substantial
redress. This is not equivalent to the irreparable harm that
is
required before the granting of an interim relief. It is something
less. He may still obtain redress in an application in due
course but
it may not be substantial. Whether an applicant will not be able
obtain substantial redress in an application in due
course will be
determined by the facts of each case. An applicant must make out his
cases in that regard.”
[15]
It is trite, as enunciated by the Court in the matter of
Moila
v Elaxandra and others
,
[6]
that a spoliation remedy is inherently urgent because of the
underlying purpose that no resort to self-help should be tolerated
to
ensure the respect of the rule of law.
[16]
Mr KW Lüderitz, on behalf of the respondents, relied on the
judgment of the Supreme Court of Appeal
in the matter of
Murray
and Others NNO v African Global Holdings (Pty) Ltd and Others (“AGH”)
[7]
in support of his argument that this application was similarly
brought on an extremely urgent basis with significant truncated
time
periods, and should accordingly be struck from the roll. I do not
agree. This application is distinguishable from AGH as the
applicants
therein lodged their application, with extreme truncated periods,
after waiting for a total period of 3 weeks.
[17]
I am satisfied, despite truncating the period for the filing of the
notice of intention to oppose
and the answering affidavit, that: -
17.1
The applicants were not dilatory in first attempting to resolve the
dispute without immediate legal action;
17.2
The urgency was not self-created in view of the judgment in the
matter of
Nelson
Mandela Bay v Greybenhouw
[8]
where the Court held as follows: -
“…
In
my view it approached its statutory duty of safeguarding the rights
and interests of ratepayers in a responsible manner by seeking
to
persuade the respondents to comply and only then approaching the
court for relief. In these circumstances it cannot be said
that the
first applicant has been dilatory in bringing the application. There
is consequently no merit in this point.”
and
17.3 The
applicants adequately justified the necessity to circumvent the
ordinary time periods as set out in the Uniform
Rules of Court having
regard to the inherent urgency of spoliation applications; and
17.4
T
he deviation from the prescribed procedure did
not unduly prejudice the respondents as they were able to file a
comprehensive answering
affidavit.
[18]
I accordingly condoned the non-compliance in respect of the ordinary
forms and time periods and adjudicated
the matter on an urgent basis.
MANDAMENT
VAN SPOLIE: -
[19]
The policy of the law is neatly summed up in the
maxim,
spoliatus
ante omnia restituendus est
.
In
Nino
Bonino v De Lange
,
[9]
Innes CJ stated that: -
"spoliation
is an illicit deprivation of another of the right of possession which
he has whether in regard to movable or immovable
property or even in
regard to a legal right".”
[20]
In order to obtain a mandament van spolie, the applicant must prove
that: -
20.1
He
or she was in peaceful and undisturbed possession of the property or
the right;
[10]
and
20.2
He
or she was unlawfully deprived of such possession.
[11]
[21]
An applicant who seeks to invoke the Mandament van Spolie is
therefore required to establish
the two requirements for such relief,
subject to test articulated in
Plascon-Evans
Ltd v Van Riebeeck Paints (Pty) Ltd
.
[12]
AD
PEACEFUL AND UNDISTURBED POSSESSION: -
[22]
It is not in dispute between the parties that: -
22.1
Matsapa is the registered owner of the property;
22.2
Mr CME Mostert signed a resolution on 12 March 2018 on behalf of
Matsapa in terms of which it was resolved:
-
“
1.
Dat
Johannes Christiaan Reitz ID: 8[...] gemagtig word om as Openbare
Beampte en gevolmagtigde van die BESLOTE KORPORASIE, alle
sake van
die BESLOTE KORPORASIE te hanteer en te bedryf.
2.
Hy sal geregtig wees om o.a alle dokumente te teken, ‘n
rekening by ‘n
finansiele instelling te open en om alle
aankope, verkope en kontrakte van die BESLOTE KORPORASIE te
onderhandel, te magtig en
te onderteken.
3.
Hy sal ook geregtig wees om wysigings aan die lederegister van die
BESLOTE KORPORASIE
te magtig en te onderteken.
4.
Hierdie totale volmag, soos hierin aan hom verleen, sal geldig wees
totdat dit
skriftelike deur die bestaande Lede van die BESLOTE
KORPORASIE herroep word.”
(“the
resolution”);
22.3
Matsapa executed a general power of attorney that appointed Mr JC
Reitz as its authorised attorney of record
and lawful agent “
in
performing all necessary actions for managing and transacting the
business of the Close Corporation within the Republic of South
Africa
for and on behalf of the Close Corporation…
”. The
power of attorney granted Mr JC Reitz extensive powers of management
and control (“
the power of attorney”)
;
22.4
During May 2018, Matsapa procured a retail licence (R/2018/0157) to
sell licenced petroleum products from
the property (“
the
retail licence”
) and a site licence (S/2018/0042”)(“
the
site licence”
);
22.5
Bright Ideas and OK concluded an agreement to conduct a grocery store
from the premises under the OK brand.
Matsapa, however, alleges that
the agreement had to be concluded with Matsapa and not with Bright
Ideas;
22.6
Purchases made in respect of fuel are administered into a separate
bank account designated for that purpose;
and groceries or goods that
are purchased at the OK business are administered with another
different bank account;
22.7
Bright Ideas employed all the staff, including Mr van der Colff, at
the premises from 2018 until 05 March
2024; and paid their salaries;
22.8
Mr JC Reitz’s powers and authority, granted in terms of the
resolution and the power of attorney, were
unilaterally revoked on 05
March 2024 in writing; and the applicants were informed that Matsapa
shall continue to operate the Puma
business itself; and
22.9
From 05 March 2024, Bright Ideas’ employees are being employed
by Matsapa.
[23]
According to the applicants they were in undisturbed and peaceful
possession of the businesses
and station premises until 05 March
2024, which possession was taken away by the respondents without
recourse to a court of law;
and without any agreement.
[24]
The applicants allege that they were in undisturbed possession and
control of all the businesses
and the premises for the following
reasons: -
24.1
Mr CME Mostert never managed the businesses or the premises, directly
or indirectly as same was managed by
Bright Ideas;
24.2
The resolution and the power of attorney granted extensive powers of
management and control to Mr JC Reitz
during 2018 in terms of which
he managed the businesses and the premises for a period of more than
6 years;
24.3
Mr CME Mostert made no financial contribution to acquire the
property;
24.4
Mr Reitz senior and Mr JC Reitz, as Matsapa’s authorised agent,
negotiated and concluded the dealer
agreement with Puma Energy South
Africa (Pty) Ltd (“Puma”);
24.5
Bright Ideas employed and appointed Mr P van der Colff as the site
manager and paid his salary. Mr JC Reitz,
although he was not present
at the businesses on a daily basis, was in daily contact and
communication with Mr P van der Colff;
24.6
Bright Ideas employed and paid the salaries of all the other
employees of the businesses; and
24.7
Puma was aware that Bright Ideas managed the Puma business.
[25]
The respondents deny that the applicants were in peaceful possession
of the Puma business and
the premises based on the allegation that
the Puma business, as a going concern, is made up of the following
elements, all of which
a person is required to possess in order to
operate Matsapa’s business as a going concern: -
25.1
Matsapa’s retail licence and the rights granted to Matsapa by
the Department in terms thereof;
25.2
Matsapa’s dealership contract concluded with Puma and the
rights granted to Matsapa by Puma in terms
thereof;
25.3
Matsapa’s property, more specifically the portion of the
premises from which the Puma business is operated;
25.4
The goodwill attaching to the business; and
25.5
The employees necessary to conduct the Puma business.
[26]
The
respondents aver that t
he
purported, but terminated, management agreement relied on by the
applicants does not create rights of a nature protectable by
the
Mandament van Spolie. Their reasons for this allegation can be
summarised as follow: -
26.1
Matsapa is the possessor of the Puma business and Mr JC Reitz merely
managed same; and therefore, Matsapa
was never dispossessed of its
Puma business;
26.2
The applicants cannot be in possession of the right to conduct a fuel
retailer business from the premises
as the retail licence was issued
to Matsapa and not to the applicants; and without the right to sell
fuel, there is no fuel station
business;
26.3
The Puma dealership contract was concluded between Matsapa and Puma
and the rights and obligations provided
for therein secures fuel for
Matsapa to sell, and not to the applicants;
26.4
Bright Ideas and Mr JC Reitz have not been deprived of their access
to the property or the business premises;
26.5
Bright Ideas and Mr JC Reitz never had exclusive access to the
property and the business premises, but managed
the Puma business of
Matsapa “remotely”; and
26.6
Bright Ideas and Mr JC Reitz were never in possession of any
employees, nor in respect of any right to the
employees.
[27]
In
Yeko
v Qana
,
[13]
the
Appellate Division reaffirmed that: -
“
The
very essence of the remedy against spoliation is that the possession
enjoyed by the party who asks for the spoliation order
must be
established. As has so often been said by our Courts
the
possession which must be proved is not possession in the juridical
sense; it may be enough if the holding by the applicant was
with the
intention of securing some benefit for himself.
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.” (my emphasis).
[28]
The Court in the matter of
Bennet
Pringle (Pty) Ltd v Adelaide Municipality
,
[14]
furthermore laid down the following definitive principles with regard
to type of possession that is required to found a claim for
a
spoliation order: -
28.1
The possession which he claims to be deprived of does not need to
have been exclusive;
28.2
A spoliation claim will lie at the suit of a person who holds jointly
with others;
28.3
It is not necessary that the possession should be continuous, either
by the claimant or his servants, if
the nature of the operations
which he conducts do not require his continuous presence;
28.4
A disturbance of possession, without deprivation of the whole of is,
is sufficient;
28.5
With reference to
The
South African Law of Property, Family Relations and Succession
,
[15]
“
the
remedies given by this section (including a spoliation order) are
“available to any person who has control of a thing
and
exercises the control; in his own interest
or
as agent for another.
”
;
(my emphasis)
28.6
Terms as “
control”
, “
use and enjoyment”
and “
holding”
of property should be determined
based on the facts of the matter; and
28.7
The possession must still consist of the intention of securing some
benefit; and the holding for itself.
[29]
The following statement made in the letter from Werksmans to the
applicants on 05 March 2024
refutes the respondents’ argument
that the applicants could and did not have possession of the premises
and business: -
“
10.
Matsapa has furthermore resolved to the extent necessary and ex
abudante cautela, to notify
Bright Ideas, as Matsapa hereby
does, that Bright Ideas
may
no longer conduct any business
operations
of Matsapa, including but not limited to the Puma Fuel Station
Business. Matsapa hereby notifies Bright Ideas that Matsapa
will
forthwith continue to operate the Puma Fuel Station, itself, with
effect from Tuesday 5 March 2024.” (my emphasis)
[30]
In applying the above established legal principles, I can come to no
other conclusion than that
the applicants proved that they were in
undisturbed possession of the businesses and the premises on 5 March
2024.
AD
DISPOSSESSION: -
[31]
In the second instance, an applicant must prove an act of spoliation,
namely that he or she has
been wrongfully deprived of his or her
possession.
[32]
It is trite law that violence, stealth, fraud or force is no longer
necessary for an act of spoliation.
[16]
[33]
Deprivation is wrongful if it takes place without undue process of
law
[17]
or without a special
legal right to oust the possessor.
[18]
[34]
The Court in the matter of
Elastocrete
(Pty) Ltd v Dickens
,
[19]
with reference to Maasdorp,
[20]
provided the following valuable and succinct explanation of when
dispossession can be regarded as wrongful: -
“
…
I
think that the construction to be placed on the word "wrongfully"
where it occurs in Bonino's case and in the other
authorities dealing
with this subject means nothing more than "without any special
legal right to oust the possessor from
possession"…”
[35]
Should a respondent deny that what it did amounted to spoliation it
can“…
claim
that in doing what he did was legally justified.”
[21]
[36]
I do not agree with Mr JG van Niekerk SC, on behalf of the
applicants, that the revocation of
the resolution and the power of
attorney is irrelevant to the determination of the application. The
resolution specifically provided
for unilateral revocation thereof.
In my view, this granted the respondents a legal right and a legally
justifiable basis to oust
the applicants from the possession of the
Puma business. I accordingly find that the applicants failed to prove
the second requirement
to obtain a spoliation order in respect of the
Puma business.
[37]
With regard to the OK business, the respondents submit that: -
37.1
The OK business is not in issue
in casu
as the respondents
made clear at the outset that they did not assume sole management of
the OK grocery business;
37.2
The OK business is operated by the applicants in terms of a separate
dealer / franchise agreement concluded between
Bright Ideas and OK,
and not between OK and Matsapa;
37.3
The Puma business and the OK business are not inseparable intertwined
and commercially distinct;
37.4
The applicants are not deprived of their lawful access to the
property, nor of their management and control
of the OK business; and
37.5
Matsapa’s conduct does not impede Bright Idea’s operation
of the OK business and Mr JC Reitz
is not deprived of his rights to
lawfully access the premises for this purpose.
[38]
In support of these allegation, the respondents provided a site plan
that portrays the layout
of the commercial outbuildings that house
the two distinct retail enterprises. It is also common cause that the
revenue generated
by the Puma business and the OK business always
had, and remains deposited in 2 separate bank accounts, operated by
Bright Ideas
and Matsapa respectively.
[39]
Applying the Plascon-Evans test, I am not persuaded that the
applicants were dispossessed of
the OK business.
COSTS:-
[40]
The convention is that costs are awarded against the unsuccessful
party.
[41]
The respondents request that a cost order should be granted on an
attorney and client scale against
the applicants.
[42]
In my view, there was any vexatious or
mala fide
conduct on
behalf of the applicants that warrants a punitive cost order.
WHEREFORE
I MAKE THE FOLLOWING ORDER:-
The
application is dismissed, with costs, including the costs attendant
on the employment of two counsel.
STANTON
J
On behalf of
the applicants:
Adv. JG van
Niekerk SC
Adv. JL Olivier
On instruction of
Oosthuizen Sweetnam Reitz & Fourie
Care of Van de
Wall Incorporated
On behalf of
the respondents:
Adv. KW L
üderitz
SC
Adv. P Lourens
On instruction of
Werksmans Attorneys
Care of Engelsman
Magabane Incorporated
[1]
Salt And Another v Smith 1991(2) SA 186 (NM) at 187 A.
[2]
IL&B Marcow Caterers a Greatermans SA 1981(4) SA 108(C) at 111A.
[3]
977(4) SA 135(W) At 137F.
[4]
(JR315/13)
[2013] ZALCHB 43 (12 MARCH 2013) AT [12]; SEE ALSO EAST ROCK TRADING
(PTY) LTD & OTHERS V EAGLE VALLEY GRANITE
[2012] JOL 28244
(GJS)
AT [7] – [9].
[5]
[2012] JOL 28244
(GSJ) at [7].
[6]
[2023]
JOL 58661
(GJ) at paragraph [13].
[7]
[2020] 1 All SA 64
(SCA) at paragraphs [35] to [40].
[8]
CC
2004 (2) SA 81
(SE) at [34].
[9]
(1906
TS 120)
at page 122.
[10]
Impala
Water Users Association v Lourens NO [2004] 2 All SA 476 (SCA).
[11]
Nino Bonino v de Lange
1906 T.S 120
at 122.
[12]
[1984] ZASCA 51
;
1984
(3) SA 623
A at 634E-635C.
[13]
1973 (4) SA 735
(A) at
739D-G.
[14]
1977(1)
SA [E.C.D] 230 At 323H to 33H.
[15]
Lee
and Honore at page 8.
[16]
Sillo
v Naudé
1929 AD 21
; Nino Bonino v de Lange
supra
at 122. See also Ntai v Vereeniging Town Council
1953 4 SA 579
(A)
at 588.
[17]
Dönges v Dadoo 1950 2 SA 321.
[18]
Stocks Housing (Cape) (Pty) Ltd v Chief Excutive Director,
Department of Education & Culture Services
[1997] JOL 294
(C) at
page 15.
[19]
[1953]
2 All SA 105
(SR) at page 112.
[20]
Institutes
of South African Law, Volume II, 7
th
Edition
at page 31.
[21]
Scoop Industries (Pty) Ltd v Langlaagte Estate and GN Boerdery
Company Ltd (In Voluntary Liquidation)
[1948] 1 All SA 181
(W) at
page 188.