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[2024] ZAKZPHC 55
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Barloworld Equipment Southern Africa A Division of Barloworld South Africa (Pty) Ltd v Mekgopaze Nkosi Trading Enterprise (Pty) Ltd and Others (9952/2023) [2024] ZAKZPHC 55; [2024] 4 All SA 127 (KZP) (18 July 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
REPORTABLE
CASE
NO:
9952/2023
In
the matter between:
BARLOWORLD
EQUIPMENT SOUTHERN AFRICA
A
DIVISION OF BARLOWORLD SOUTH AFRICA
(PTY)
LTD
Applicant
(Registration
Number: 1946/021661/07)
and
MEKGOPAZE
NKOSI TRADING ENTERPRISE
(PTY)
LTD
First
Respondent
(Registration
Number: 2018/197495/07)
KGOPA
MINING AND RESOURCES (PTY) LTD
Second Respondent
(Registration
Number: 2018/611239/07)
MALONJENI
BEE INVESTMENTS (PTY) LTD
Third
Respondent
(Registration
Number: 2022/556737/07)
JUDGMENT
NOTYESI
AJ:
Background
facts
[1]
On 4 July 2023, the applicant (hereinafter referred to as
“Barloworld”), instituted
an application against the
respondents mainly seeking an order, in the form of the
rei
vindicatio
,
that the applicant or its agent(s) be authorised to take into
possession the applicant’s equipment
[1]
in the possession of the third respondent (hereinafter referred to as
“Malonjeni”). This application will hereinafter
be
referred to as the main application.
[2]
Barloworld
alleges that it is the sole licenced
distributor of Caterpillar machinery, equipment, trucks and parts in
Southern Africa. According
to Barloworld, it is also the only
preferred and authorised agent to maintain and repair Caterpillar
equipment. It is further alleged
that Barloworld's scope of business
is leasing/renting, retail, servicing, repair and maintenance of new
and pre-owned earthmoving
equipment, allied machinery as well as
providing spares.
[3]
According to Barloworld, it owns the machinery and equipment.
Ownership of the equipment is allegedly
acquired through an exclusive
right to purchase from its international Caterpillar supplier in the
United States of America and
Switzerland. The equipment would
thereafter be supplied to the rental division to be rented or leased
to potential customers. When
acquiring the purchased equipment from
Caterpillar, it would be issued with a certificate of registration in
respect
of
new vehicles for each machine. On these facts, Barloworld submits
that it is the owner of the machines and the equipment as it
had
purchased the machines, equipment and trucks.
[4]
In its
founding
affidavit, Barloworld has alleged that
in April 2022, it entered into a written application for a trading
account (hereinafter referred
to as “the agreement”) with
the first respondent (hereinafter referred to as “Mekgopaze”),
the material
terms of which were:
“
13.1
The customer must pay the full amount owing in terms of the trading
account to Barloworld without deduction within 30
days from the date
of invoice (viz. clause 5.1);
13.2
If the customer fails to pay any amount payable to Barloworld by the
due date for payment, then all amounts
owing to Barloworld by the
customer from any cause whatsoever will become immediately payable
and Barloworld may:
13.2.1
stop/deactivate the Equipment and thereby render the Equipment
incapable of operation (viz. clause 10.1(c));
13.2.2
withhold or immediately suspend the performance of any service and/or
TES to the customer (viz. clause 10.1(d));
13.2.3
suspend the performance of any of its obligations to the customer in
terms of the contract and any other contract with the
customer (viz.
clause 10.1(e));
13.2.4
restrict and/or stop access to any TES Telemetry Device, website,
application program and/or software (viz. clause 10.1(f));
13.2.5
immediately terminate and/or suspend the trading account and/or any
other trading facility granted to the customer, whether
under the
contract or not (viz. clause 10.1(g));
13.3
Notwithstanding anything to the contrary contained in the contract,
Barloworld may terminate the contract
for convenience by giving the
customer not less than 14 days prior written notice (viz. clause
14.1);
13.4
Without limiting its other rights or remedies, Barloworld shall be
entitled to forthwith cancel the contract
and/or claim immediate
payment, and/or performance by the customer of all the customer
obligations whether or not the due date
for payment and/or
performance shall have arrived, by giving written notice to the
customer, if the customer:
13.4.1
breaches any term or condition of the contract and such breach cannot
be remedied or if such breach can be remedied it fails
to remedy that
breach within 5 days after receipt of a written notice from
Barloworld to do so (viz. clause 14.3.b);
13.4.2
being a juristic person, becomes unable to pay its debts as they fall
due (c viz. clause 14.3.e);
13.5
Without limiting the rights or remedies of Barloworld, on termination
or cancellation of the contract for
any reason:
13.5.1
the customer shall return all of Barloworld’s material or
equipment which have not been paid for in full by the customer.
If
the customer fails to do so, then Barloworld may enter the customer’s
premises and take possession of them. Until they
have been returned,
the customer shall be solely responsible for their safekeeping and
will not use them for any purpose whatsoever;
(viz. clause 14.4.b);
13.5.2
For the purpose of exercising its rights in terms of clause 14.4.b,
the customer irrevocably and in rem suam authorises and
appoints
Barloworld with full power of substitution to sign all and any
documents in the customer’s name or on the customer’s
behalf and to do all such things as may be necessary or desirable to
enable Barloworld to give effect or to enforce its rights
under
14.4.b (viz. clause 14.5.a).
13.6
The equipment shall at all times remain the property of Barloworld
and the customer shall have no right,
title or interest in or to the
equipment (save the right to possession and use of the equipment
subject to these conditions) (viz.
clause 45);
13.7
The customer may not cede/transfer its rights, delegate/transfer its
obligations, assign/transfer both rights
and obligations or
subcontract all or any of its rights and/or obligations in terms of
this contract, without Barloworld’s
prior written consent (viz.
clause 24.1);
13.8
The customer agrees to hire, and Barloworld agrees to rent the
equipment specified in the hire schedule on
the terms and conditions
specified in the contract (viz. clause 34.1);
13.9
The customer must, before collecting the goods, advise Barloworld in
writing of the address where the Goods
will be used and stored,
provided that the customer shall not be entitled to move the
equipment to a new address unless it has
obtained the prior written
consent of Barloworld for the change of that address; (viz. clause
40.1.a);
13.10
Ensure that at all times the equipment remains identifiable as
belonging to and owned by Barloworld and wherever possible
shall
ensure a visible sign to that effect is attached to the equipment
(viz. clause 40.3);
13.11
The Customer must not allow the goods to be subject to any claims by
third parties or to be attached by any -person,
including the Lessor,
and immediately notify Barloworld of any attempt to attach the goods
(viz. clause 40.10);
13.12
The customer must not cede, assign, delegate, encumber, alienate or
transfer any of its rights or obligations in respect
of the goods to
any other person, without the prior written consent of Barloworld
(viz. clause 40.20);
13.13
The customer acknowledges that Barloworld may be entitled to remotely
stop/deactivate the operation of the equipment
by written notice to
the customer where the customer fails to make immediate payment of
any amount that is due to Barloworld within
24 hours of receipt of
the written demand to do so, or where Barloworld cancels the contract
under circumstances contemplated in
clause 14.3 (viz. clause 43.1);
13.14
The stoppage notice will remain in force until all overdue rentals,
including interest, are received in full by Barloworld
(viz. clause
43.1);
13.15
The customer acknowledges that the right to stop/deactivate the
operation of the equipment is a right in addition to,
and not in
substitution of any other rights which may accrue to Barloworld upon
breach or cancellation of the contract and/or hire
schedule (viz.
clause 43.4).”
[5]
The agreement was concluded, so alleges Barloworld, at it’s
rental branch
situated
at Corner Quarry Park Close and 1[...]
Q[...] N[...] Drive, Riverhorse Valley, Durban. The same equipment
was delivered to Mekgopaze
over the period 25 to 28 October 2022.
Upon delivery, possession of the equipment passed to Mekgopaze.
According to Barloworld,
the delivery of the equipment took place at
the premises of Malonjeni.
[6]
Against this background, the main application was launched.
The
main application
[7]
Barloworld avers that on 3 January 2023, Mekgopaze breached the
agreement. Mekgopaze’s trading
facility fell into arrears of
R1 455 795.50. According to Barloworld, the arrears were in
respect of the outstanding
balance
of the rental deposit and overdue
rentals for November and December 2022. In terms of the agreement,
Mekgopaze was given a formal
notice to remedy the breach and also
advised of the consequences for failing to remedy the breach.
Mekgopaze allegedly failed to
remedy the breach. It is apposite to
refer to the contents of the letter dated 3 January 2023 issued by
Barloworld to Mekgopaze.
The relevant part of the letter reads:
“
NOTICE
OF NON-PAYMENT AND STOPPAGE OF MACHINES
We
would like to remind you that according to the Standard Trading Terms
and Conditions (Trading Facility for the Rental) of Barloworld
Equipment a division of Barloworld South Africa (Pty) Ltd (Barloworld
Equipment) executed by yourselves that the payment terms
are within
30 (thirty) days from the date of invoice.
We
note that your Trading Facility for the Rental is behind with the
payment, for the amount of R1 455 795-50 (One Million
Four
Hundred and Fifty-Five Thousand Seven Hundred and Ninety-Five Rand
and Fifty Cents), and the total amount outstanding is R1 678 056-11
as per the breakdown below.
Rental
Deposit
R437 551-00 Overdue
November
2022 (Rental Invoices) R1 018 244-50 Overdue
December
2022 (Rental Invoices) R222 260-61 Due on the 31
st
of
January 2023
Kindly
be advised that if the payment of R1 455 795-50 is not
received by the 9
th
of January 2023 the equipment will be
stopped on Monday the 9
th
of January 2023 at 18H00.
Please
be advised that in the terms of the above mentioned agreements,
Barloworld Equipment is entitled to charge interest for any
overdue
payments, and that we reserve our right to enforce same for any
overdue payments. Such right shall be enforced for all
the overdue
payments as at 1
st
of January 2023.”
[8]
It is further alleged, in the founding papers, that Mekgopaze failed
to comply with the notice
as no payment was made.
The
agreement was cancelled and the machines
were remotely disabled from operating. Barloworld demanded the return
of the equipment.
Consequently, a notice to that effect was issued,
by Barloworld’s legal representatives to Makgopaze on 12
January 2023.
The notice is worded as follows:
“
On
3 January 2023, Mekhopaze (first respondent) were formally advised by
our client of its contractual breach as it failed to meet
its payment
obligations in terms of the Agreement, with its current and overdue
arrears up to December 2022 amounting to R1 455 795-50
(of
which R437 551 relates to the deposit) and a further R222 260-61
for the December 2022 rental payable by 31 January
2023.
Our
client has subsequently exercised its rights to remotely lock the
machines, rendering it immediately non-operational. This was
done
following a “stoppage notice” that was issued on 3
January 2023, and we now demand that the machines be returned
to our
client as the lawful owners by close of business on Friday 13 January
2023.
As
the mine, where the machines are currently stored, has been
uncooperative in granting our client access to its property to
collect
the machines, we hereby demand that Mekgopaze urgently liaise
with the mine management for the release of the machines from its
site. Any further delay in releasing the machines will exponentially
increase our client’s risk and potential for further
damages.”
[9]
On 12
January
2023, Barloworld received a letter from
Mekgopaze.
The letter is addressed to the second respondent
(hereinafter referred to as “Kgopa”) by Malonjeni’s
legal representatives.
For what will follow, I
deem it necessary to quote relevant passages from the letter. It
reads:
“
3.
We herewith confirm that on 14 October 2022, your office and our
client entered into a contractorship
agreement, the terms of which
you are fully appraised with and a copy of which you are in
possession of.
4.
We further confirm that in terms of the contractorship agreement you
have supplied 5 Machines
(the details of which are already in
possession of ) to our client to date. With regard to the machines
you have supplied to our
client, it has come to our clients’
attention that due to the fact that you have not furnished the
finance agreement held
between you and the supplier of those
machines, those machines have been disabled.
5.
Accordingly, our client is unable to make use of those machines at
all as a result of your
failure, alternatively, your refusal to
properly attend to your obligations.
6.
We further confirm that five more machines were due to be delivered
to our clients’
site in terms of the contractorship agreement,
which you have failed to attend to.
7.
In addition to the above mentioned breaches, it also appears that
despite having an obligation
to pay the operators of the machines on
our clients’ site, you have also not attended thereto.
8.
Accordingly, you have failed at all to act as per your obligations in
the contractorship
agreement, the result of which being that our
client has suffered immense damage as a direct result of your
actions. It is our
instruction that our client stands to suffer
damages in the amount of R600,000,000-00 (six hundred million rand)
as direct losses
for failure to meet the terms of its offtake
arrangements, we note that our clients’ rights in respect of
the damages suffered
are reserved.
9.
However, should you not settle all financial obligations owed to the
supplier of the 5 machines
in our clients’ possession by no
later than 13h00 on even date, and ensure that all machines are
functional by no later than
14h00 on even date, our client will
proceed with legal action against you for the recovery of our
clients’ damages, which
we submit is liquidated.
10.
Furthermore, you are herewith notified that in these circumstances,
you are to deem this correspondence
as notice in terms of section 345
of the Companies Act 61 of 1973, that should you not settle the
amount of R600,000,000-00 (six
hundred million rand) within 21 days
from date hereof, it will be deemed that your office is unable to
meet its debts as and when
they become due and that your office is
indeed insolvent, in which case liquidation proceedings will be
instituted against you.
11.
Lastly, you are herewith further notified that under these
circumstances our client shall exercise its
option to hold all
machinery in our clients’ possession as security for the debt
pending resolution of the issues.”
[10]
In relation to the above - quoted letter, Barloworld avers that
Malonjeni expressly admitted that it is in
possession of the
machines. According to Barloworld, Malonjeni is also aware that the
machines belong neither to Mekgopaze nor
Kgopa. Barloworld alleges
that, on the strength of the letter issued on behalf of Malonjeni
referred to above, it caused a letter
to be addressed to Malonjeni.
In that letter, Malonjeni was informed that the agreement between
Barloworld and Mekgopaze had been
cancelled. In the same letter,
Barloworld sought possession of the machines held by Malonjeni.
Malonjeni however refused to release
the machines.
[11]
Barloworld now seeks to regain possession of the machines
alleged
to be in
possession of Malonjeni. Barloworld
contends that the retention of the machines by Malonjeni is unlawful.
I quote the relevant passage
from the letter addressed to Malonjeni
by Barloworld on 20 February 2023. Insofar as it is relevant, the
letter is worded:
“
4.
We once again place on record that:
4.1
Our client has previously terminated its rental agreement with your
contractor, Mr Thabo Maripane, whereafter
a stoppage notice was
issued and the leased machines then remotely deactivated.
4.2
These machines now form the subject matter of imminent litigation in
the form of a vindicatory action
and a simultaneous urgent
application for a preservation order.
4.3
The unlawful and unauthorised activation and continued operation of
these machines and trucks has and
will cause further wear and tear,
depreciation and possible irreparable damage to sensitive onboard
electronics and safety features
installed on these multimillion-rand
machines.
4.4
This state of affairs is completely unacceptable and viewed in a very
serious light by our client, who
stands to suffer enormous damages,
as a direct result of involvement by the mine employees,
alternatively, a gross breach of your
client’s duty of care to
our client in relation to the machines.
5.
Our client demands that immediate and definite action will be taken
to ensure that all operations
involving our client’s machines
are ceased forthwith and an undertaking that there will no further
tampering with the machines
systems to render them operational.”
[12]
In a letter dated 21 Ferbuary 2023, Malonjeni responded:
“
1.
The above matter and your letter dated 20 February 2023 bears
reference.
2.
Kindly take note that our client has absolutely no dealings with your
client and we suggest that
your office address any issues it may have
with the persons it contracted with. We would request that you direct
your threats to
the appropriate recipient in future, being the party
whom contracted with your office.”
[13]
Mekgopaze and Kgopa have not opposed the main application; they seek
to abide the decision of this court.
Only Malonjeni has
opposed. The relevant notice to oppose was filed on 25 July 2023. In
pursuit of such opposition, an answering
affidavit was delivered on 7
August 2023 wherein the main application is opposed on a number of
bases, the first of which is that
it constitutes an abuse of court
process. In this regard, it alleged that Barloworld had previously
instituted proceedings against
the respondents under case number
4030/2023P, which had been brought on an urgent basis, and was struck
off the roll. In the view
of Malonjeni, that application has not been
finalised.
[14]
Secondly, it is contended that Barloworld has always known, from the
papers filed in the urgent application,
that there was a dispute of
fact which cannot be resolved on the papers. In these circumstances,
the application ought to be dismissed.
[15]
The third ground of opposition is that this court has no jurisdiction
to entertain the application. In this
regard, Malonjeni contends that
Barloworld has wrongly alleged that Malonjeni’s principal place
of business is Transasia
Minerals Site, Dundee, KwaZulu-Natal,
whereas, the principal place of business 4[...] 1[...]
th
Street, Menlo Park, Pretoria. It is Malonjeni’s further
contention that none of the other respondents have their principal
place of business located in this court’s area of jurisdiction.
There are no other jurisdictional factors, so it is further
contended, that establish this jurisdiction.
[16]
The fourth ground of opposition is that the equipment was never
delivered to Malonjeni’s premises.
Malonjeni has no control
over Transasia Minerals Site as it lost access after Kgopa failed to
perform its obligations under their
curatorship agreement
as
a result of the actions of Barloworld.
[17]
Finally, Malonjeni further contends, that the agreement between
Makgopaze and Barloworld was not lawfully
cancelled,
alternatively,
the alleged cancellation was contrary to public
policy and the Constitution.
[18]
Barloworld’s replying affidavit was delivered on 22 August
2023.
The
interlocutory proceedings
[19]
Whilst all the papers in the main application had been delivered, and
the matter ripe for hearing, Malonjeni,
on 25 August 2023, served
Barloworld with a notice in terms of rule 35(12) of the Uniform Rules
(the Rules).
[2]
In the notice,
Malonjeni requested the production of certain listed documents. On 8
September 2023, Barloworld filed a notice of
objection alleging that
the documents were confidential and irrelevant.
[20]
I interpose here to mention that certain documents had been delivered
as annexures to the founding
affidavit in the main
application
.
[21]
On 11 September 2023, Malonjeni served a notice in terms of rule 30A
seeking compliance with rule 35(12)
issued by Malonjeni. On 27
September 2023, Barloworld wrote a letter to Malonjeni. In the
letter, it was contended that all relevant
and available documents
were furnished to Malonjeni and an indulgence of 21 days within which
to consider the remainder, if any,
of the required documents was
requested. Malonjeni did not take the matter any further.
[22]
Meanwhile, on 16 November 2023, Barloworld set down the main
application for hearing for 10 May 2024. Malonjeni
thereupon launched
an application, in terms of Rule 30A, to compel compliance with the
rule 35(12) notice, on 29 January 2024 (the
first interlocutory
application).
[23]
On 31 January 2024, Barloworld filed a notice to oppose the first
interlocutory application. No answering
affidavit was delivered.
Malonjeni proceeded to enrol the first interlocutory application for
hearing on 18 March 2024.
[24]
On 7 March 2024, Barloworld supplemented its discovered documents. It
also requested that Malonjeni withdraw
its first interlocutory
application.
[25]
Malonjeni responded to the request by way of a letter dated 12 March
2024, which, in part, reads as follows:
“
1.
The above matter and your correspondence dated Friday 8 March 2024
delivered at 14h45, as well
as 12 March 2024 delivered at 18h10 bears
reference.
…
4.
Therefore, the matter remains unopposed and as such no reason exists
for our offices not
to proceed on the unopposed motion roll on 18
March 2024, in the absence of a condonation application. In fact, if
your client
persists in its opposition to the costs aspect (being the
only issue remaining in
this
interlocutory
application), we will request that the court make an order that your
client must file its condonation application
within 5 days of the
hearing and that the wasted costs occasioned by the removal be paid
by your client.
5.
However, in view of bringing
this
interlocutory
application to finalisation we note that there exists two options:
5.1
Option 1:
5.1.1
Your client tender the costs of the interlocutory application on a
party-party scale and
this
interlocutory application
can be laid to rest on that basis.
5.1.2
Our office will attend to court on 18 March 2024 and make the agreed
draft order an order of court.
5.2
Option 2:
5.2.1
Firstly, your client incur further costs by filing a substantive
condonation application, our client will reply
and enrol the matter
on the opposed motion roll for costs only.
5.2.2
Our client will pursue costs on an attorney-client scale against your
client, on the basis that it forced the
matter to proceed on an
opposed basis without their (sic) being any merit in your clients
defence against our clients entitlement
to costs, our client should
not be out of pocket in this regard.
5.2.3
Thereafter, and what can be seen as perhaps worse case scenario for
our client, is that our client obtains party-party
costs against your
clients, however those costs shall include the costs of a full blown
opposed motion, including the costs of
senior counsel.
6.
Kindly let us have your clients decision in relation to the above two
options on or before
15 March 2024 so that our client can take the
requisite steps.
7.
Unless we have your response to the above, the matter shall remain on
the unopposed motion
roll, which our client is entitled to do in the
absence of any proper opposition.”
[26]
On 15 March 2024, in line with the contents of the letter of 12 March
2024, Malonjeni removed the first interlocutory
application from the
roll of 18 March 2024. The costs were reserved.
[27]
It bears mentioning that the main application, throughout the brawl
about the first interlocutory application,
had remained set down for
10 May 2024. The notice of set down, in that regard, had been served
on 16 November 2023.
[28]
On 10 April 2024, despite having formally confirmed in its letter of
12 March 2024 that all issues regarding
the first interlocutory
application, save for the issue of costs, the rule 35(12) application
had been resolved, Malonjeni issued
another interlocutory application
(the second interlocutory application). In that application,
Malonjeni sought the same documents
that were the subject of its
first interlocutory application. Upon launching the second
interlocutory application, Malonjeni addressed
a letter to
Barloworld’s attorneys in which they advised that the main
application should be removed from the roll. Malonjeni’s
contention was that the second interlocutory application should be
resolved first. The request was declined by Barloworld, with
contention that there was no basis for the removal of the main
application from the roll of 10 May 2024.
[29]
On 19 April 2024, Malonjeni launched a substantive application for
the postponement of the main application
(the postponement
application), the basis of which was that the existence of the second
interlocutory application was sufficient
for the removal of the main
application. On 22 April 2024, Malonjeni delivered a notice of set
down of the second interlocutory
application which was set down for
10 June 2024 on an unopposed basis.
[30]
The main application served before this court on 10 May 2024. This
court directed that the second interlocutory
application and the main
application be heard simultaneously. Resulting from this, the parties
entered into an agreement regulating
the future conduct of the
proceedings, which was made an order of court. The applications were
postponed to be heard together on
17 May 2024 and the costs
occasioned by the postponement were made to stand over for
determination in the second interlocutory
application.
[31]
It became common cause between the parties that the substantial
relief under the first interlocutory application
had been resolved
and that the only issue that remained in the first application was
that of costs. In respect of the second interlocutory
application,
Malonjeni indicated that there were about 5 documents that were still
outstanding.
Issues
for determination
[32]
The following are the
issues
for determination by this court:
(a)
whether the court has jurisdiction to entertain these proceedings;
(b)
whether there is a dispute of fact;
(c)
whether a proper case has been made out for the relief sought in the
second interlocutory application;
(d)
in the event of the above issue being determined against Malonjeni,
whether the relief sought
in the main application should be granted
;
and
(e)
what costs orders should be made in respect of the first and second
interlocutory applications,
and the main application.
Legal
framework
Jurisdiction
[33]
Jurisdiction in civil cases either follows the defendant or the
action. What this means is that the court
that has jurisdiction must
either be the court in which the cause of action arose or the court
which has territorial jurisdiction
over the area in which the
defendant resides or is employed.
[34]
Barloworld adduced evidence to establish jurisdiction. First,
Barloworld has alleged that Malonjeni is conducting
business at
Transasia Minerals Site, Dundee, KwaZulu-Natal. In response,
Malonjeni has “noted” the allegations. This
does not
constitute a denial of an averment. All that Malonjeni placed in
dispute was the allegation that it has a registered address
and
principal place of business at Transasia Minerals Site, Dundee,
KwaZulu-Natal. If this is anything to go by, the denial is
bare, bold
and general. It cannot stand in view of the overwhelming evidence to
the contrary. I accept that Malonjeni conducts
business at Transasia
Minerals Site, Dundee, KwaZulu-Natal. This is borne out by the
assertions made by Malonjeni in its answering
affidavit.
[35]
Barloworld has also averred that the agreement was concluded at
Barloworld’s rental branch situated
at Corner Quarry Park Close
and 1[...] Q[...] N[...] Drive, Riverhorse Valley, Durban. Malonjeni
has not disputed that allegation
either. There is no answer to the
averments made by Barloworld in this regard. Malonjeni only has this
to say:
“
Barloworld
failed to disclose all the relevant facts and circumstances
surrounding the conclusion of its agreements with Mekgopaze.
Barloworld did this even though it knew that Malonjeni contested the
lawfulness of its purported cancellation of the rental agreement
(and
ultimately now, the Trading Agreement also). It knew that a dispute
of fact would arise that cannot be determined on the papers
before
the Court.”
[36]
In my view, the cause of action arose within the KwaZulu-Natal area
of jurisdiction. The contract was concluded
and the breach occurred
in Durban, within this court’s area of jurisdiction.
[37]
A further basis regarding the jurisdiction of the court is that the
machines are located at Transasia Minerals
Site, Dundee,
KwaZulu-Natal. In my view, that would be sufficient to confirm the
jurisdiction of the court. I further take into
account that the
machinery is operating in KwaZulu-Natal.
[38]
In view of the aforegoing, this court has the necessary jurisdiction
and this matter is properly before it.
Is
there a dispute of fact?
[39]
I turn to consider whether this case is beset by a dispute of facts.
[40]
These are motion proceedings. Mr
Stoop
,
who appeared for Malonjeni, correctly so in my view, submitted that
the principles set out in
Plascon-Evans
[3]
should
apply. ‘According to this rule, an application for final relief
must be decided on the facts stated by the respondent,
together with
those which the applicant states and which the respondent cannot
deny, or in relation to which its denials plainly
lack credence and
can be rejected outright on the papers.’
[4]
[41]
The undisputed facts are that Barloworld is the lawful owner of the
earthmoving equipment, machinery and
trucks which have been described
in Barloworld’s founding affidavit. The equipment, machinery
and trucks were rented out
in terms of an agreement to Makgopaze. The
agreement between Barloworld and Makgopaze was terminated. In my
view, the termination
of the agreement entitles Barloworld to the
equipment, machinery and trucks in the absence of a valid right of
the possessor to
retain them. Malonjeni has placed no evidence
regarding its dispute of lawful termination. The statement was just
made in general.
In my view, it was not open to Malonjeni to contest
the termination of the agreement as it is not a party to the
agreement.
[42]
I accordingly find that there is no dispute of fact. Because this
issue is inextricably interwoven with the
merits, more about it is
said later in this judgment.
Rule
35(12)
[43]
As stated in
Erasmus
:Rule
35(12) authorizes the production of documents and tape recordings
which are referred to in general terms in a party’s
pleadings
or affidavits: the terms of the rule do not require a detailed or
descriptive reference to such documents or tape recordings.
Reference
by mere deduction or inference does not, however, constitute a
“reference” as contemplated in the rule. (
Footnotes
omitted.)
A
party is entitled only to those documents to which reference is made.
In
Centre
for Child Law v Hoërskool
Fochville
and Another,
[5]
the Supreme Court of Appeal (SCA) held:
“
Therefore,
I hold that, upon a proper interpretation of rule 35(12), a party
called upon to comply with rule 35(12) is excused from
so doing, if
that party shows that the document sought is irrelevant to the issues
in the matter, or is privileged, but cannot
refuse on the grounds of
confidentiality.”
[44]
The SCA, in
Hoërskool
Fochville
,
[6]
after an analysis of the relevant case law, stated:
“
This
being an application, I would say that the
onus
is to be
discharged on the usual basis, ie that the applicant bears the
overall
onus
of satisfying the Court that the respondent is
obliged to produce the document….Where the respondent files an
opposing affidavit…
and either denies relevance or avers that
he is on ground of privilege not obliged to produce a document…the
applicant would,
in order to succeed, have to satisfy the Court on a
balance of probabilities that the document is indeed relevant or not
privileged.”
[45]
Mr
Stoop
correctly conceded that rule 35(12) includes, in its sweep, documents
directly or indirectly referred to in an affidavit or its
annexures.
In
Democratic
Alliance and Others v Mkhwebane and Another
[7]
it was stated:
“
To
sum up: It appears to me to be clear that documents in respect of
which there is a direct or indirect reference in an affidavit
or its
annexures, that are relevant, and which are not privileged, and are
in the possession of that party, must be produced. Relevance
is
assessed in relation to rule 35(12), not on the basis of issues that
have crystallised, as they would have had pleadings closed
or all the
affidavits filed, but rather on the basis of aspects or issues that
might arise in relation to what has thus far been
stated in the
pleadings or affidavits and possible grounds of opposition or
defences that might be raised, and on the basis that
they will better
enable the party seeking production to assess his or her position and
that they might assist in asserting such
a defence or defences. In
the present case we are dealing with defamatory statements and
defences such as truth and public interest
or fair comment that might
be raised. The question to be addressed is whether the documents
sought might have evidentiary value
and might assist the appellants
in their defence to the relief claimed in the main case. Supposition
or speculation about the existence
of documents or tape recordings to
compel production will not suffice. In exercising its discretion, the
court will approach the
matter on the basis set out in the preceding
paragraph. The wording of rule 35(12) is clear in relation to its
application. Where
there has been reference to a document within the
meaning of that expression in an affidavit, and it is relevant, it
must be produced.
There is thus no need to consider the submission on
behalf of the respondents in relation to discovery generally, namely
that a
court will only order discovery in application proceedings in
exceptional circumstances.”
[46]
I, however, disagree Mr
Stoop’s
reliance on
confidentiality as the basis for objecting to the production of the
required documents. In reply to the rule the 35(12)
notice,
Barloworld advanced three bases of objection. First, that some of the
documents are not relevant. Second, that some of
the required
information had already been furnished to Malonjeni as attachments to
the founding affidavit. Third, the other unspecified
documents
requested are confidential in nature. These contentions will be dealt
with separately.
[47]
Insofar as Barloworld alleges that the documents are irrelevant to
the issues, it is entitled to object on
that basis. I agree that
‘confidentiality’ cannot be a valid defence to a request
made under rule 35(12). This question
was settled in
Centre
for Child Law v
Hoërskool
Fochville.
[8]
[48]
Whilst I agree with Mr
Stoop
regarding the principle enshrined
in rule 35(12), the conduct of Malonjeni is unsatisfactory. Upon
receipt of supplementary documents
from Barloworld, Malonjeni issued
a letter on 12 March 2024 incorporating these terms:
“
Therefore,
the matter remains unopposed and as such no reason exists for our
offices not to proceed on the unopposed motion roll
on 18 March 2024,
in the absence of a condonation application. In fact, if your client
persists in its opposition to the costs
aspect (being the only issue
remaining in
this
interlocutory application), we will request that the court make an
order that your client must file its condonation application
within 5
days of the hearing and that the wasted costs occasioned by the
removal be paid by your client.”
[49]
In my view, this letter conclusively confirms that the issue of the
discovery of documents was settled. This
conclusion is beyond doubt
when regard is had to the following statement :
“
[i]n
fact, if your client persists in its opposition to the costs aspect
(being the only issue remaining in
this
interlocutory
application)…”
[50]
Following the letter of 12 March 2024, Malonjeni, on its own, had
removed the application from the roll of
18 March 2024. That
was consistent with the letter of 12 March 2024. The costs were
reserved, which serves as confirmation
that it was the only
outstanding issue. In my view, the dispute about the production of
documents was resolved on 12 March 2024.
The rule 35(12) notice was
therefore complied with.
[51]
The second interlocutory application should fail. To begin with, the
initial application was preceded by
a rule 35(12) notice, followed by
a rule 30A notice and thereafter an application. A supplementary
discovery of documents was made.
On receipt of the supplemented
discovery, Malonjeni became satisfied and removed the first
interlocutory application from the roll.
When removing the
application, a concession was made that the rule 35(12) notice had
been complied with. Malonjeni became unhappy
with the issue of costs.
In my view, had Malonjeni sought have further discovery under
rule 35(12), the correct procedure
ought to have been followed. The
procedure would have been to issue a notice under rule 35(12),
followed by a rule 30A notice and
ultimately an application under
rule 30A. That was not done.
[52]
For these reasons, I agree with Mr
Nxusani
, counsel for
Barloworld, that rule 35(12) only envisages a notice to produce for
inspection, and by seeking to reissue the same
application, Malonjeni
compromised its application when accepting the response offered and
agreeing that the only issue remaining
for consideration was that of
costs. Therefore, Malonjeni is precluded from raising this issue
again. It does not matter that it
sought to reserve its rights, which
rights were not even explained. If this were so, it would have issued
a fresh notice and sought
inspection of the documents that were
neither provided nor included in the supplementary discovery.
[53]
In
Hoërskool
Fochville
[9]
it was stated that:
“
In
general terms, the rules exist to regulate the practice and procedure
of the courts. Their object is to secure the “inexpensive
and
expeditious completion of litigation before the courts” and
they are not an end in and of themselves. Ordinarily,
strong
grounds would have to be advanced to persuade a court to act
outside the powers provided for specifically in the rules.
Here,
having given notice in terms of rule 35(12) that has not been
complied with, it was for the School to give notice in terms
of rule
30A that it intended, after the lapse of 10 days, applying for an
order that its rule 35(12) notice be complied with. That
the School
did not do. Nor did it apply to court in terms of rule 30A to compel
production of the documents sought. That,
in and
of itself, may have been fatal to the
application.” (Footnotes omitted.)
[54]
I conclude, on this aspect, that Malonjeni’s failure to deliver
further rule 35(12) and 30A notices
prior to launching the second
interlocutory application was fatal. Consequently, the second
interlocutory application must fail.
[55]
There is yet another reason why the second interlocutory application
should fail. In my view, the documents
sought are irrelevant.
The dispute between the parties involves the
rei vindicatio
.
In its letters addressed to Mekgopaze and Kgopa, Malonjeni
acknowledged that the equipment belonged to the supplier. It hardly
lies with Malonjeni to contest the manner of acquisition of the
equipment. The documents sought by Malonjeni, which Mr
Stoop
identified as five documents at the hearing, have no relevance in a
detemination of the main application.
The rei vindicatio
[56]
‘The principle that owners cannot be deprived of their property
against their wills means that an
owner
is
entitled to recover property from any person who retains possession
of it without his or her consent… one of the incidents
of
ownership is the entitlement to “exclusive possession of the
res
,
with the necessary corollary that the owner may claim his property
wherever found, from whosoever is holding it”.
[10]
The principle being that ‘whenever I find my property I assert
my claim to it’ (
ubi
rem meam invenio ibi vindico
).
[11]
[57]
Rei vindicatio
is the remedy through which an owner, who is
out of possession sues to recover possession of his property. It is
used both for
movable and immovable property.
[58]
An owner in
rei
vindicatio
proceedings is required to allege and prove that:
[12]
(a)
‘he or she
is
the owner of the thing;
(b)
the thing was in the possession of the defendant at the commencement
of the action; and
(c)
the thing so vindicated is still in existence and clearly
identifiable.’
[59]
In
Chetty
v Naidoo
[13]
the court held:
“
It
is inherent in the nature of ownership that possession of
the
res
should
normally be with the owner, and it follows that no other person may
withhold it from the owner unless he is vested
with some right
enforceable against the owner (e.g., a right of retention or a
contractual right). The owner, in instituting a
reivindicatio
,
need, therefore, do no more than allege and prove that he is the
owner and that the defendant is holding the
res
-
the
onus
being
on the defendant to allege and establish any right to continue
to hold against the owner
.”
[60]
In proving ownership for
rei
vindicatio,
‘the burden rests on the vindicator, in the absence of an
admission on the pleadings of his or her title, to prove it. Once
the
acquisition of ownership has been proved by the plaintiff on a
preponderance of probability, its continuation is presumed…
It
is not necessary for the vindicator either to allege or prove that he
or she has a personal right against the defendant to demand
the
return of the property or that the latter retains possession of it
“unlawfully” and “without his consent”.
It
follows that
the onus to establish any right to retain possession of the thing
always rests on the defendant as long as the owner does not go
beyond
alleging his or her ownership and the fact that it is in the
possession of the defendant.’
[14]
[61]
‘The defendant may, among other things, raise the defence that
the plaintiff is not the owner of the
thing concerned or that the
defendant was not in possession of the thing at the commencement of
the action. The defendant may also
prove the existence of some or
other right to possession (
ius
possidendi
)
in terms of a contract.
[15]
This defence can be defeated by the plaintiff proving that the
contract relied on by the defendant is invalid or has been
terminated.’
[16]
‘Owners
who have been deprived of their property against their wills are, as
a general rule, entitled to vindicate it from
any person who is in
possession of it. This is so irrespective of whether that person is a
bona
or
a
mala
fide
possessor or occupier and the owner need not compensate the possessor
for its value even where the latter has acquired it for consideration
(
ex
causa onerosa
).
In instances such as, for example by lending or leasing it to a
person who subsequently alienated or pledged the property it
to the ,
it is further more irrelevant whether the owner parted with the
possession of his or her property of his or her own
accorddefendant.’
[17]
[63]
It is on these principles, that I turn to consider the merits of the
main application.
[64]
Barloworldsubmitted that in the absence of opposition by Mekgopaze
and Kgopa, the question relating to its
ownership of the machinery
cannot arise. Mekgopaze and Kgopa elected to abide the decision
of the court. Mr
Nxusani
submitted that on this ground
alone, the application should be successful. He submitted that the
contract with Mekgopaze
was lawfully terminated.
[65]
Insofar as Malonjeni is opposing the grant of the
rei vindicatio
,
Mr
Nxusani
submitted that the opposition lacked merit. He
contended that this court should consider the admission by Malonjeni
that they were
in possession of the property, which admission is
underpinned by the acknowledgement that Barloworld had passed
possession to Mekgopaze
and Kgopa, who had, in turn, passed such
possession to Malonjeni. The submission in this regard was that on
the principles of settled
law, Mekgopaze and Kgopa could not pass any
more rights over the machines than the rights that they have. As I
understand the submission,
on Malonjeni’s own version,
Malonjeni is bound to accept that its own rights stem from
Barloworld’s initial right as
owner of the property.
[66]
Mr
Nxusani
further contended that the equipment is still in
existence and that it can easily be identified. The submissions that
all five
machines are visibly branded with Caterpillar branding and
logos; they are easily identifiable and their identification numbers
have been admitted by Malonjeni.
[67]
Mr
Nxusani
contended, regarding the control of the property by Malonjeni, that
Malonjeni had in several emails and letters acknowledged that
it was
utilising the equipment. It was pointed out during
MALONJENI
BEE INVESTMENTS (PTY) LTD
argument
that Malonjeni has admitted that it has physically overrode the
electronic mechanisms which enabled Barloworld to remotely
disable
the machines.
[68]
In summary, it wassubmitted that Barloworld has met all the
requirements for the grant of the
rei vindicatio
.
[69]
On the other hand, Mr
Stoop
contended that Barloworld failed
to discharge the onus resting upon it to prove ownership of the
equipment. He pointed out that
the documents that Barloworld relies
upon demonstrate a different entity known as Barloworld Equipment
(Pty) Ltd as the owner of
the machinery. He strenuously argued that
the discrepancy in relation to the registration certificates had not
been properly explained.
Insofar as Barloworld alleges that Malonjeni
was in possession of the equipment, Mr
Stoop
submitted that
Barloworld has dismally failed to adduce evidence that at the
commencement of the proceedings, Malonjeni was in
possession of the
property. In advancing that argument, Mr
Stoop
submitted that
Barloworld has merely relied on correspondence and emails exchanged
between the parties and their legal representatives.
[70]
Mr
Stoop
further submitted that in these proceedings, there is a material
dispute of fact and that motion proceedings were not appropriate.
Mr
Stoop
stressed
that the dispute of fact was foreseeable by Barloworld in view of the
previous court litigation involving the parties and,
accordingly, the
application should fail. He invited this court to invoke the
well-known
Plascon-Evans
[18]
rule.
[71]
Malonjeni gained possession of the machinery from Mekgopaze and
Kgopa. I agree with Mr
Nxusani
’s submission that in such
circumstances, Malonjeni cannot have more rights than the rights of
Mekgopaze and Kgopa. The case
of Malonjeni is not immediately clear.
On the documents and correspondences, Malonjeni does accept that the
machines did not belong
to Makgopaze or Kgopa. In this regard, I
refer to the extract of their letter of 12 January 2023, which reads:
“
We
further confirm that in terms of the contractorship agreement you
have supplied 5 Machines (the details of which are already
in
possession of ) to our client to date. With regard to the machines
you have supplied to our client, it has come to our clients’
attention that due to the fact that you have not furnished the
finance agreement held between you and the supplier of those
machines,
those machines have been disabled.”
[72]
The evidence is overwhelming that the supplier in question was
Barloworld. Barloworld has set out sufficient
evidence on how it
acquired the equipment and machinery. The issue about the
registration of the machinery and equipment and the
contradiction of
registration documents does not take Malonjeni’s case any
further. There is undisputed evidence under oath
that Barloworld
acquired ownership of equipment through an exclusive right to
purchase from its international Caterpillar suppliers
in the United
States of America and Switzerland. The evidence relating to the
purchasing of the identified machines was not disputed
in the
answering affidavit. There was not even a response to these
allegations. In my view, the evidence of purchase is sufficient
in
proving ownership. Accordingly, Barloworld has established ownership
of the equipment. Registration of Caterpillars is not a
legal
requirement and, therefore, registration documents on their own would
not confirm ownership more than proof of purchase.
[73]
The defence by Malonjeni that Barloworld is not the owner or has not
discharged the onus of proving ownership
must be rejected. From
Malonjeni’s own version, these machines were supplied to
Mekgopaze and Kgopa and they always knew
that the machines belonged
to the supplier hence they were disabled by the supplier when there
was non-payment. To borrow from
the case of
Plascon-Evans
,
the allegations of Malonjeni are ‘far-fetched or clearly
untenable that the court is justified in rejecting them right out
of
hand papers’.
[19]
[74]
I accept that the machines, at the time of the commencement of the
proceedings, were in the possession of
Malonjeni. I come to this
conclusion in view of the correspondence between Malonjeni’s
legal representatives and Barloworld.
In the correspondence, it
appears that, after the termination of the agreement between
Barloworld and Makgopaze, the machines were
disabled by Barloworld.
Malonjeni activated the machines. The correspondence from Barloworld
reads:
“
These
machines now form the subject matter of imminent litigation in the
form of a vindicatory action and a simultaneous urgent
application
for a preservation order.
The
unlawful and unauthorised activation and continued operation of these
machines and trucks has and will cause further wear and
tear,
depreciation and possible irreparable damage to sensitive onboard
electronics and safety features installed on these multimillion-rand
machines.”
[75]
The response by Malonjeni was:
“
Kindly
take note that our client has absolutely no dealings with your client
and we suggest that your office address any issues
it may have with
the persons it contracted with. We would request that you direct your
threats to the appropriate recipient in
future, being the party whom
contracted with your office.”
[76]
On a proper scrutiny of the correspondence and the conduct of
Malonjeni, I am satisfied that Malonjeni is
in possession of the
machines. It is evident that Malonjeni sought to retain possession as
a form of retention until its payment
by Makgopaze or Kgopa is made.
There is no objective evidence to support the denial of possession of
the five machines, equipment
and trucks. On this point, I find that
the machines, equipment and trucks are in possession of Malonjeni and
were in its possession
at the commencement of the proceedings.
[77]
Barloworld has identified the five machines with descriptions. All
five machines are branded with Caterpillar
branding and logos. The
identification numbers of the machines were not denied by Malonjeni.
I accept this evidence. In addition,
Malonjeni, in its own version
based on the letter of 12 January 2023, confirmed being in
possession of the equipment in the
following terms:
“…
We
further confirm that in terms of the contractorship agreement you
have supplied 5 Machines (the details of which are already
in
possession of ) to our client to date.
…
.
Lastly,
you are herewith further notified that under these circumstances our
client shall exercise its option to hold all machinery
in our
clients’ possession as security for the debt pending resolution
of the issues.”
[78]
There can be no doubt that the identified machines, equipment and
trucks are in the possession of Malonjeni.
I accept the version of
Barloworld in placing reliance on the authority of
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another,
[20]
where the SCA held:
“
A
real, genuine and bona fide dispute of fact can exist only where the
court is satisfied that the party who purports to raise the
dispute
has in his affidavit seriously and unambiguously addressed the
fact said to be disputed. There will of course be instances
where a
bare denial meets the requirement because there is no other way open
to the disputing party and nothing more can therefore
be expected of
him. But even that may not be sufficient if the fact averred lies
purely within the knowledge of the averring party
and no basis is
laid for disputing the veracity or accuracy of the
averment. When the facts averred are such that the
disputing party
must necessarily possess knowledge of them and be able to provide an
answer (or countervailing evidence) if they
be not true or accurate
but, instead of doing so, rests his case on a bare or ambiguous
denial the court will generally have difficulty
in finding that the
test is satisfied. I say “generally” because
factual averments seldom stand apart from
a broader matrix of
circumstances all of which needs to be borne in mind when arriving at
a decision. A litigant may not necessarily
recognise orunderstand the
nuances of a bare or general denial as against a real attempt to
grapple with all relevant factual allegations
made by the other
party. But when he signs the answering affidavit, he commits himself
to its contents, inadequate as they may
be, and will only in
exceptional circumstances be permitted to disavow them. There is thus
a serious duty imposed upon a legal
adviser who settles an
answering affidavit to ascertain and
engage with facts which his client
disputes and to reflect such disputes fully and accurately in the
answering affidavit. If that
does not happen it should come as no
surprise that the court takes a robust view of the matter.
”
[79]
To sum up, Barloworld has established that it is the owner of the
machines, equipment and trucks; which were
in possession of Malonjeni
at the commencement of the proceedings; and that they do exist and
are identifiable as five machines
branded with Caterpillar branding
and logos and bear identifying numbers. Malonjeni has not raised any
defence to justify possession
of these machines. On the authority of
Chetty
v Naidoo
[21]
and
the principles set out in
Silberberg
[22]
as
set out above, I am satisfied that Barloworld has made out a case.
I
also reject Malonjeni’s contention that Barloworld has abused
the court process. It is normal for parties to bring before
court
urgent applications and once those urgent applications are struck
from the roll, it would be open to a party to supplement
the struck
application or to institute a fresh application
.
That cannot be said to be an abuse of court process.
[80]
For all the reasons stated, Barloworld has made out a case for the
grant of the relief based on the remedy
provided by
rei
vindicatio
. Barloworld is entitled to possession of its own
property and therefore, possession must be restored accordingly.
Costs
[81]
I cannot think of any reason, and none has been suggested, as to why
the costs should not, as a general rule,
follow the result.
[82]
Both parties have sought costs of two counsel. I agree. The matter is
fairly complex and the employment of
two counsel was justified. The
costs should include those of the second interlocutory application.
Malonjeni should also be held
liable for the costs occasioned by the
postponement of 10 May 2024.
[83]
The application for postponement was merely intended to delay the
hearing. Malonjeni had not filed its heads
of argument which would
have resulted in an unnecessary postponement. Malonjeni was furnished
with supplementary documents and
confirmed that the issue of the
first interlocutory application had been resolved. It then removed
the application from the roll
of 18 March 2024. In a bizarre and
unacceptable procedure, Malonjeni launched the second interlocutory
application, a few days
prior to the hearing of 10 May 2024. The
inference is irresistible that the application for postponement was a
stratagem to avoid
the hearing on 10 May 2024. In my view, that
conduct would have ordinarily attracted a punitive costs order.
Because such order
was not sought, I will award costs on the ordinary
scale.
Order
[84]
In the result, the following order is made:
1.
The applicant or its agent(s) or nominee(s), is hereby authorized and
directed, duly assisted
by the Sheriff of this Court, and where
necessary, members of the South African Police Service, to enter
Transasia Minerals Site
or wherever the applicant’s equipment
may be found in
Malonjeni
Bee Investments (Pty) Ltd
or
any other person’s possession, and forthwith take into
possession such equipment, machines and trucks, to wit–
(i)
2020 CATERPILLAR Dozer (D9), Model/Plant No. D9059
Serial
No: W[...],
Vin
No: C[...],
Colour:
Yellow,
Value:
R14 720 000.00 Incl. VAT;
(ii)
2022 CATERPILLAR Excavator, Model/Plant No. 352001,
Serial
No: H[...],
Vin
No: C [...],
Colour:
Yellow,
Value:
R8 108 650.00 Incl. VAT;
(iii)
2021 CATERPILLAR ART Truck (730), Model/Plant No. 730379
Serial
No: 3[...],
Vin
No: C [...],
Colour:
Yellow,
Value:
R8 660 650.00 Incl VAT;
(iv)
2021 CATERPILLAR ART Truck (730), Model/Plant No. 730373; Serial No:
3[...],
Vin
No: C[...],
Colour:
Yellow,
Value:
R8 660 650.00 Incl. VAT; and
(v)
2022 CATERPILLAR Loader (966), Model/Plant No. 966287,
Serial
No: E[...],
Vin
No: C [...],
Colour:
Yellow,
Value:
R8 355 900.00 Incl. VAT.
2.
The third respondent, their agent/s or nominee/s or any other
person/s holding the machines,
equipment and trucks referred to in
paragraph 1, is and/or are directed to release immediately the five
machines, equipment and
trucks to the applicant or its agent/s or
nominee/s who shall take possession forthwith upon release.
3.
In the event of the third respondent resisting the release of the
machines, equipment and
trucks to the applicant, its agent/s or
nominee/s, the Sheriff, duly assisted by members of the South African
Police Service, shall
seize the equipment, machines and trucks and
hand the same over to the applicant, or its agent/s or nominee/s.
4.
Malonjeni’s application in terms of rule 35(12) read with rule
30A launched during
April 2024 is dismissed.
5.
The third respondent shall pay costs of the main application, the
rule 30A application, and
the reserved costs occasioned by the
application for postponement on 10 May 2024, such costs to include
those of two counsel, where
incurred, and payable on scale C.
M
NOTYESI
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel
for the applicant:
J
Nxusani SC
(together with
P T Nortje
)
Instructed
by:
Ntuta,
Singh & De Jager Inc
Durban
c/o
Venn Nemeth & Hart Attorneys
Pietermaritzburg
Counsel
for the third respondent:
B
C Stoop SC
Instructed
by:
Hammond-Smith
Attorneys
c/o
Lister and Lister Attorneys
Pietermaritzburg
Heard
on:
17
May 2024
Judgment
delivered on:
18
July 2024
[1]
The
equipment
comprises
(I) 2020 CATERPILLAR Dozer (D9), Model/Plant No.
D9059
{Serial No: W[...], Vin No: C [...], Colour: Yellow, Value:
R14 720 000.00 Incl. VAT}; (II) 2022 CATERPILLAR
Excavator,
Model/Plant No. 352001, {Serial No: H[...], Vin No: C
[...], Colour: Yellow, Value: R8 108 650.00 Incl. VAT};
(III)
2021 CATERPILLAR ART Truck (730), Model/Plant No. 730379
{Serial No: 3[...], Vin No: C[...], Colour: Yellow, Value:
R8 660 650.00
Incl VAT}; (IV) 2021 CATERPILLAR ART Truck
(730), Model/Plant No. 730373; Serial No: 3[...], Vin No: C[...],
Colour: Yellow,
Value: R8 660 650.00 Incl. VAT} and (V)
2022 CATERPILLAR Loader (966), Model/Plant No. 966287, Serial No:
E[...], Vin
No: C [...], Colour: Yellow, Value: R8 355 900.00
Incl. VAT}.
[2]
The rule
provides:
‘
(a)
Any party to any proceeding may at any time before the hearing
thereof deliver a notice in accordance with Form 15 in the First
Schedule to any other party in whose pleadings or affidavits
reference is made to any document or tape recording to-
produce such document or
tape recording for inspection and to permit the party requesting
production to make a copy or transcription
thereof; or
…
(b)
Any party failing to comply with the
notice referred to in paragraph
(a)
shall not, save with the leave of the court, use such document or
tape recording in such proceeding provided that any other
party may
use such document or tape recording.’
[3]
Plascon-Evans
(Pty) Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-635C
…..
[4]
Democratic
Alliance (as Third Intervening Party): In re Electoral
Commission of South Africa v Minister of Co-operative
Governance and
Traditional Affairs and Others (African National Congress and Others
as Intervening Parties and Council for the
Advancement of the South
African Constitution and Others as amici curiae)
2022
(1) BCLR 1
(CC) para 40 fn 15,
[5]
Centre
for Child Law v Hoerskool Fochville and Another
2016
(2) SA 121
(SCA) para 17.
[6]
Ibid
para 18.
[7]
Democratic
Alliance and Others v Mkhwebane
and
Another
2021 (3) SA 403
(SCA) para 41.
[8]
Centre
for Child Law v
Hoërskool
Fochville
above
fn 4 para 17.
[9]
Ibid
para 17.
[10]
Silberberg
and Schoeman’s
The
Law of Property
6 ed (2019) at 269.
[11]
Ibid.
[12]
Ibid at 270.
[13]
Chetty
v Naidoo
1974
(3) SA 13
(A) at 20B-D.
[14]
See
Silberberg
above
fn 10 at 270-271;
Ndlovu
v Ngcobo; Bekker and Another v Jika
2003 (1) SA 113
(SCA) para 46.
[15]
Chetty
v Naidoo
above
fn 13.
[16]
Silberberg
above
fn 10 at 272;
Lourensford
Estates (Edms) Bpk v Grobbelaar
1996
(3) SA 350 (O).
[17]
Silberberg
ibid
.
[18]
Plascon-Evans
(Pty) Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-635C.
[19]
Plascon-Evans
above fn 18 at 635C.
[20]
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA) para 13.
[21]
Chetty
v Naidoo
supra
footnote 13
[22]
Silberberg
supra
footnote 10