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[2024] ZAKZPHC 60
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Transasia 1 (Pty) Ltd v Sherif of the High Court and Others (10895/2024P) [2024] ZAKZPHC 60 (26 July 2024)
Latest
amended version 30 October 2024.
FLYNOTES:
CIVIL PROCEDURE –
Sheriff
– Powers – Refusal of entry to premises to take
possession of property – Attach and remove Caterpillar
excavator – Police presence and use of locksmith to open
locked gate – In terms of court order – Sheriff
acting
in compliance and under authority of order – Valid court
order which remains valid until set aside – Applicant
has
failed to prove on balance of probabilities that conduct of
sheriff was unlawful – Application dismissed –
Uniform
Rule 45 and 46.
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
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NUMBER:
10895/2024P
In the matter between:
TRANSASIA 1 (PTY)
LTD
APPLICANT
AND
THE SHERIF OF THE HIGH
COURT, DUNDEE
FIRST RESPONDENT
CATERPILLAR FINANCIAL
SERVICES
SOUTH AFRICA (PTY)
LTD
SECOND RESPONDENT
MAHLANGUMGABADENI
TRADING ENTERPRISE CC
THIRD RESPONDENT
PHEZUKOMKHONO
COMMUNITY
PROPERTY ASSOCIATION
FOURTH RESPONDENT
JUDGMENT
P
C BEZUIDENHOUT J
:
[1]
Applicant brought an urgent application seeking the return of a
Caterpillar Large Excavator 395
with serial number S[...] from First
Respondent (the Sheriff of the High Court Dundee) and Second
Respondent. Further that
the costs be paid by First and Second
Respondent jointly and severally. The application was opposed
by First and Second Respondent.
[2]
It is common cause that in an application brought by Second
Respondent herein on 12 September
2023 an order was granted by Langa
J in the Mpumalanga Division Middleburg (Local Seat) that the said
Caterpillar Excavator amongst
others be delivered to the Sheriff by
Respondent therein which is Mahlangumgabadeni Trading Enterprise CC
(Third Respondent herein).
Paragraph 2 of the order reads as
follows:
“
In
the event of the Respondent failing to comply with 1 above, the
Sheriff of the High Court is authorised and ordered to take
possession of the units from wherever he/she may find them, and the
Sheriff is authorised to retain possession of the units until
delivered to the Applicant or its fully authorised representative.”
What further was not
disclosed by Applicant in its founding papers (but not disputed) was
that there is an application to
be heard in the Mpumalanga Division
on 2 September 2024 to have the said order of Langa J. rescinded.
[3]
It is common cause that the said Caterpillar Excavator was on 25 June
2024 found on the premises
of Applicant. It is set out in the
founding papers how Applicant came to be in possession thereof.
Second Respondent
contends that Applicant has provided different
reasons as to how it came to be in possession of the Caterpillar
Excavator and has
not proved on a balance of probabilities that it
was in possession thereof. In my view for the reasons set out
in this judgment
it is not necessary to make a finding in this regard
and it is accepted that Applicant was in possession of the
Caterpillar Excavator.
[4]
It is further common cause that Applicant refused to grant the
Sheriff (First Respondent) permission
to enter its business premises
where it wished to attach and remove the said Caterpillar Excavator
in terms of the court order.
First Respondent thereafter
obtained the assistance of a lock smith and armed guards and
requested the South African Police Services
to be present. The
Caterpillar Excavator was then removed from Applicant’s
premises. Applicant contends that
the locks and chains were
cut, that the gate was removed and that First Respondent then gained
entry and removed the said Caterpillar
Excavator from the premises
which was about 5 km from the main gate. Applicant contends
that First Respondent caused damage
to the property of Fourth
Respondent. Fourth Respondent did not oppose the application.
[5]
It was submitted on behalf of Applicant that the matter was urgent.
On 25 June 2024 Applicant
requested an attorney for assistance.
A letter was addressed to Second Respondent on 27 June 2024 stating
that the removal
of the Caterpillar Excavator by First Respondent was
unlawful. On 28 June 2024 Second Respondent replied that the
court order
was property executed and Applicant thereafter instructed
its attorney to brief counsel. It was recess and it found it
difficult
to obtain counsel and a letter of demand was sent for
payment by the Sheriff of R13 000 000.00 in respect of damages caused
to
Fourth Respondent’s property. Junior counsel was first
briefed and commenced drafting papers and then on 13 July 2024
Mr.
Sibuyi advised that senior counsel be instructed who then drafted the
papers
de novo
. Applicant was not dilatory to finalise
the papers and that spoliation proceedings are inherently urgent and
accordingly
that the matter is to be heard on an urgent basis.
[6]
It was submitted on behalf of First Respondent that in compliance
with the court order from the
Mpumalanga Division it on 25 June 2024
obtained the services of a lock smith and the police to remove the
Caterpillar Excavator
after he was refused entry by Applicant’s
employees. It was indeed one of the excavators described in the
court order.
This is not disputed. It was submitted that
there were no grounds of urgency. Applicant was aware of the
attachment
on 25 June 2024 but only issued its papers on Friday 12
July 2024 which was sent to First Respondent on 15 July 2024 who was
then
expected within a very short time to respond to the
application. It was therefore submitted that the application
ought to
be dismissed. It was further submitted that First
Respondent was entitled in terms of the Sheriff’s Act and
Uniform
Rules of Court to obtain the services of a lock smith and the
police when Applicant refused it access to the said premises.
[7]
It was submitted on behalf of Second Respondent that Applicant
dragged its feet, that the attachment
was on 25 June 2024, that it
wrote a letter on 27 June 2024 and that it was responded to on 28
June 2024 that the court order was
complied with. It was three
weeks later that Applicant brought an application and only gave
Respondents two days notice to
file an answering affidavit. The
reasons that were provided for urgency were entirely self-created and
that the application
was therefore not urgent. It was also
submitted that Applicant did not make out a case for the final relief
it sought and
that the Caterpillar Excavator was correctly attached
and removed in terms of the court order.
[8]
Applicant accepts the court order is valid but submits it’s
application is based on the
contention that First Respondent exceeded
the bounds of its authority as the court order of Mpumalanga did not
make provision for
the Sheriff to obtain the services of the police
and a lock smith and that the order had to be properly interpreted in
such a way
that it would render it constitutional. First
Respondent was authorised to take possession of the units wherever
he/she may
find them but the steps taken were not prescribed.
As this was not in the order it is a vital issue and the conduct of
First
Respondent was unlawful. It breached Applicant’s
right to privacy. When they took the law into their own hands
First and Second Respondent deprived Applicant of its right to have a
court determine the dispute that has arisen. That is
the issue
which must now be determined. It is in my view firstly
necessary to determine whether the application was indeed
urgent and
only once it is found that it is urgent the merits as to the
interpretation of the court order of the Mpumalanga High
Court would
arise.
[9]
I was referred to the decision in Volvo Financial Services Southern
Africa Pty. (Ltd.) v Adamas
Tkolose Trading CC 2023 (JDR) 28806 (GJ)
paragraph 6 where Wilson J stated that the concept that a vindicatory
application is inherently
urgent should be avoided and there is no
class of proceeding that enjoys inherent preference. It held
that the urgency is
determined not by the nature of the claim but by
the circumstances in which the applicant seeks its adjudication.
It held
in respect of a spoliation that they could be urgent provided
that the persons spoliated acts promptly. It was submitted a
spoliation application should be instituted within a reasonable time
and that Applicant’s explanation in bringing the application
on
an urgent basis after the time delay has not been sufficiently
explained and that the reasons given for the delay do not justify
that it be heard on an urgent basis.
[10] In
the Law of Property by Silberburg and Schoeman 6
th
Edition
it sets out the following at page 326 paragraph 13.2.1.1:
“
The
purpose of a
mandament van spolie
is to restore unlawfully deprived possession at once (
ante
amnia
) to the possessor, in order to
prevent people from taking the law into their own hands, to foster
respect for the rule of law and
to encourage the establishment and
maintenance of a regulated society.”
Applicant must prove that
he was in possession and that the spoliation was committed by
Respondents. This has to be proved
on a balance of
probabilities.
[11] In
the same publication at page 335 it states:
“
Unlawfulness
for the purpose of a
mandament van
spolie
means whenever a person on
account of alleged or supposed rights, deprives another of possession
against his or her will and without
recourse to the legal process so
that it can be said that such a person acted as his or her own judge
by taking the law into his
or her own hands.”
[12] As
already set out above in the present matter the taking of the
Caterpillar Excavator was in terms of the
court order. It was
not by any Respondent taking the law into his or her own hands.
It was submitted on behalf of Applicant
that First Respondent did not
comply with the court order as First Respondent took steps which were
not allowed in terms of the
court order as the order was silent on
vital issues and that the action was not lawful. It was
submitted that Applicant was
entitled to refuse First Respondent
access to the premises to remove the Caterpillar Excavator and that
First Respondent had no
power to enter the premises forcibly.
Accordingly it was submitted that there was no justification for such
conduct, that
Applicant’s privacy was infringed and that First
Respondent took the law into its own hands.
[13]
Firstly on the issue of urgency it would appear to me that Applicant
was indeed dilatory in its conduct by
taking nearly one month to
bring the said application. However more lenience is allowed in
such cases due to the fact that
spoliation is a serious matter and
that there are cases where it can be brought after some time.
Accordingly in these circumstances
I accepted there was some urgency
and to hear the matter on the basis of urgency.
[14]
The issue then still remains whether the relief which is sought is to
be granted. The matter was addressed
by all the parties.
As set out above this is not an ordinary
mandament van spolie
application in that the Caterpillar Excavator was not taken by any
party acting on their own accord but in terms of a court order.
The basis for Applicant’s application is that First Respondent
exceeded the bounds within which it was entitled to obtain
possession
of the said Caterpillar Excavator in terms of the court order.
[15]
First Respondent, in terms of the court order, had to take possession
of the units wherever they may have
been found and to retain
possession thereof. First Respondent should have been given
access to the premises by Applicant’s
employees. First
Respondent was exercising its rights in terms of the court order to
take possession of the Caterpillar Excavator
where ever it may be
found. It is common cause that it was found on the premises of
Applicant. First Respondent, when
being refused access, was
entitled to obtain the services of a lock smith to gain entry into
the premises. The assistance
of the police was not sought to
assist First Respondent but was merely, from the papers, to be
observers to watch what was being
done. If First Respondent was
refused access and first had to bring an application in the High
Court for permission to obtain
the services of a lock smith as was
submitted on behalf of Applicant it could possibly lead to the
Caterpillar Excavator having
been removed from the premises before
the order could be obtained. In my view First Respondent was
entitled to act as he
did. There was a court order and that it
is implied therein that the Sheriff could do what was necessary to
obtain entry
to the premises and comply with the court order.
Although Rule 45 of the High Court Rules does not specifically state
so,
Rule 46 relating to when a Sheriff has to gain access to an
immovable property specifically states that the services of a lock
smith can be obtained. First Respondent was obliged to execute
the order. First Respondent had to attach and remove
the
Caterpillar Excavator wherever it was found. That is what was
done.
[16]
Court orders are binding until set aside and to ensure that the legal
system remains operational these orders
must be enforced until set
aside. There are limits to freedom and when there is a court
order which the Sheriff must comply
with it must be granted the
necessary access.
[17] In
my view First Respondent acted in terms of a valid court order which
is still valid. Applicant failed
to disclose that an
application to rescind the order was set down in the Mpumalanga High
Court on 2 September 2024. It is
therefore not the position
that Applicant has no alternative remedy. There is a court
order which is still valid and the
application on 2 September 2024
which could then rule whether the said order is to be rescinded or
not.
[18] In
my view Applicant has, on the papers for the reasons set out above,
failed to prove on a balance of probabilities
that the conduct of
First Respondent was unlawful.
I accordingly make the
following order:
The application is
dismissed with costs. Such costs to be on scale B and only for
one set of correspondent attorneys.
P C BEZUIDENHOUT J.
JUDGMENT
RESERVED:
19
JULY 2024
JUDGMENT
HANDED DOWN:
26
JULY 2024
COUNSEL
FOR APPLICANT:
MR.
B C STOOP SC
Instructed
by:
TTS
Attorneys Inc
Johannesburg
Ref:
Mr T Sibuyi
Tel:
078 213 4745
Email:
t.sibuyi@attsattorneys.co.za
c/o:
Viv Greene Attorneys
Pietermaritzburg
COUNSEL
FOR FIRST RESPONDENT:
MR.
R MANIKLALL
Instructed
by:
Ravindra
Maniklall & Company Inc
Umhlanga
Ridge
Ref:
Mr Maniklall
Tel:
032 5337488
Email:
rmcattorneys@gmail.com
COUNSEL
FOR SECOND RESPONDENT:
MR
P G LOUW
Instructed
by:
Werksmans
Attorneys
Sandton
Ref:
Ms E De Doncker/Ms Z Oosthuizen/ CATE41156.120
Tel:
011 535 8176
Email:
zoosthuizen@werksmans.com
c/o:
Garlicke & Bousfield Inc
Durban
c/o:
Botha and Olivier Attorneys
Pietermaritzburg
Tel:
033 342 7190
Email:
LEGAL@BANDO.CO.ZA