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[2024] ZAKZPHC 127
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Wacom (Pty) Ltd v Anchor Holdings 1983 (Pty) Ltd and Another (17483/2023P) [2024] ZAKZPHC 127 (28 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO.: 17483/2023P
In
the matter between:
WACOM
(PTY)
LTD
APPLICANT
(Company
Registration Number:
2016/337022/07)
and
ANCHOR
HOLDINGS 1983 (PTY) LTD
FIRST
RESPONDENT
(Company
Registration Number: 2018/586261/07)
ZATOVERT
(PTY) LTD t/a OUTSOURCED
PROJECT
SOLUTIONS
SECOND RESPONDENT
(Company
Registration Number: 2013/160086/07)
REASONS
Chithi
AJ:
Introduction
[1]
I heard this matter on 28 November 2023 in
which I dismissed the applicant’s application with costs and
directed that should
any of the parties require reasons for my order
those reasons should be requested in writing within five (5) days of
the order.
[2]
On 6 December 2023 the applicant delivered
a request for reasons in terms of Uniform rule 49(1)
(c)
.
This request was only brought to my attention on 19 January 2024.
The court file together with the request for reasons
for my order was
delivered to me on 24 January 2024. These are the reasons for
my order.
[3]
In this case the applicant brought an
urgent
rei vindicatio
application in which the applicant sought an order directing the
first respondent to return the applicant’s property comprising
goods listed in annexure ‘GW1’ (‘the property’)
within 48 hours of the order being granted.
[4]
The first respondent opposed the
application on the following four grounds:
(a)
The application was not urgent.
(b)
The applicant failed to comply with the
practice directive 10 of Practice Manual of the KwaZulu-Natal
Division of the High Court
in respect of urgency.
(c)
The applicant failed to establish the
requisites of the
rei vindicatio
.
(d)
The first respondent had an enrichment lien
over the property in the form of a salvage lien.
[5]
The second respondent was merely cited as
an interested party in the proceedings against whom no relief was
sought, and it did not
oppose the application.
Factual background
[6]
The background of this case is that the
applicant sells commodities, animal feed ingredients, and chemicals.
On or about 17
June 2022 and at Bryanston the applicant entered into
a written agreement with the second respondent for
inter
alia
the handling and packaging of
goods imported by the applicant. In addition to this agreement the
applicant and the second respondent
entered into a further verbal
agreement for the use of warehouse space for storage purposes at its
warehouse in Durban. The second
respondent would render monthly
invoices for the total tonnage handled and stored by it and the
applicant would effect payment
thereof. At the time when the
applicant concluded the agreement with the second respondent it was
unaware that the second respondent
had entered into a service
agreement with the first respondent for the use of the warehouse.
[7]
The applicant provided the second
respondent with packaging equipment, which comprised of a bagging
unit, a conveyor, an industrial
stitcher, a 200-liter compressor for
the bagging plant, 25kg packaging bags, sling packaging bags, bulk
packaging bags and stitching
cotton. During 2022 and 2023 the
applicant imported various shipments of goods, which are currently
being held at the first respondent’s
premises. The value of
these goods is at R2 622 052.32. The packaging equipment
and stock are valued at R3 373 052.31.
During September
2023, the applicant was appraised of a payment dispute between the
first and second respondents, arising from
the fact that the second
respondent fell into arrears in respect of the service agreement.
When the applicant came to know of the
payment dispute a meeting was
arranged between the representatives of the applicant and the first
respondent for 8 September 2023,
wherein the applicant advised the
first respondent that there was no reason why the second respondent
owed the first respondent
money as the second respondent was paid
promptly, as the cargo arrived into the warehouse.
[8]
On 11 September 2023, the applicant
addressed an email to the second respondent with a release form
directing that cargo (ie part
of the property) be released on 12
September 2023. The release request was forwarded by the second
respondent to Mr Gansen Naidoo
of the first respondent who on the
same day replied that they had received a directive not to release
any cargo until further notice.
Afterwards there were
telephonic engagements and written correspondence between the
representatives of the applicant and the first
respondent in relation
to the unpaid invoices by the second respondent to the first
respondent and the release of the cargo. These
engagements ultimately
resulted in the first respondent releasing the cargo (ie part of the
property) to the applicant.
[9]
On 18 September 2023, the applicant and the
first respondent negotiated an agreement to move over the warehousing
and storage solution
directly to the first respondent, but
unfortunately, those negotiations failed.
[10]
The events that directly triggered the
launch of this application are as set out below.
On
8 November 2023 the applicant’s representative, Intertek Agri
Services (‘Intertek’), attended at the first
respondent's
premises to uplift the packaging equipment, but the first respondent
denied the Intertek truck entry to the premises
and sent it away.
When this incident came to the attention of the applicant, there was
a telephonic engagement between the representatives
of the applicant
and the first respondent regarding the first respondent’s
entitlement to retain the applicant’s property
as a result of a
payment dispute, which the applicant insisted that it was between the
first respondent and the second respondent.
The representative of the
first respondent on the other hand asserted that they had a right to
retain the applicant’s property.
When these telephonic
negotiations failed the applicant addressed an email to the first
respondent in which the applicant asserted
that the first respondent
had no right to hold onto the applicant’s property for a
payment dispute which the first respondent
had with the second
respondent. The applicant also enquired whether the first respondent
would put a stop to cargo being uplifted
on 13 November 2023, as
trucks were booked to uplift the cargo. The first respondent did not
respond to this email. On 17 November
2023, the applicant’s
attorneys wrote a letter of demand to the first respondent in which
they demanded from the first respondent
to release the applicant’s
property on 20 November 2023 on or before 09h00. On 19 November 2023,
the applicant transmitted
a release order to the first respondent for
the release of the property identified in the release order for
collection on 20 November
2023. On 20 November 2023, an Intertek
truck attended at the first respondent’s premises to uplift
goods, but it was denied
entry and was sent away.
The issues
[11]
The following are the issues which were
raised by the parties:
(a)
Whether the application was urgent.
(b)
Whether the applicant had established the
prerequisites for a
rei vindicatio
.
(c)
Whether the first respondent had an
enrichment lien over the property in the form of a salvage lien.
Case for the applicant
[12]
It was contended on behalf of the applicant
that the matter was urgent because the trigger of the application was
the first respondent’s
refusal to release the property on 20
November 2023. It was further contended that there was no actual
dispute regarding the applicant’s
ownership of the property.
Moreover, there is no salvage lien over the property by the first
respondent. It was argued that what
the first respondent essentially
asserts in relation to the property is a debtor and creditor lien. In
addition, it was contended
that while it is denied that the first
respondent has any right of retention, any such right, which the
first respondent may have
had was waived on 11 September 2023, when
the first respondent agreed to release the applicant’s
property.
Case for the first
respondent
[13]
It was contended on behalf of the first
respondent that although there is authority for the proposition that
applications for vindicatory
relief can be and are perhaps by their
very nature urgent the applicant’s application lost its
urgency. The reason being
the peculiar circumstances under which the
possession of the property was vested in the first respondent, which
constitute the
subject matter of the application. Moreover, it was
contended that the applicant has failed to allege and prove that it
was the
owner of the property that it wished to vindicate. The first
respondent, as the owner of the warehouse and a logistic provider,
whose principal business is to store goods at its premises on behalf
of its customers, charges for those services. The very nature
of
those services are such that it preserves the goods for the benefit
of the customer, protects the goods against theft and takes
all
reasonable steps to ensure the goods do not deteriorate. A
warehouse’s operation, therefore, by its very nature, requires
the spending of money for the preservation or even the enhancement of
the value of another’s property. As such, the property
would
have either depreciated in value or perished without those necessary
expenses. The first respondent had, over a period, safeguarded
goods
which were brought to its warehouse over many months and expended
substantial sums of money by providing security services
to prevent
the theft of those goods, storage and measures to prevent
contamination and damage from the elements. Although
the first
respondent did not have a contract with the applicant at the very
least it has a claim for unjust enrichment against
the applicant to
the extent that the applicant has been enriched at the first
respondent’s expense in respect of the services
which the first
respondent has provided. The extent to which the applicant has been
enriched at the first respondent’s expense
was in the sum of
R660 452.45. The applicant was aware for three months that the
second respondent was in breach of its agreement
with the first
respondent and according to the applicant’s version it was
aware of the payment dispute between the first
and second respondents
at least from 7 September 2023. Despite that the applicant continued
to require that the first respondent
(albeit via the second
respondent) provide the services including on 28 September 2023.
[14]
Relying
on the case of
Pheiffer
v Van Wyk
,
[1]
Mr
Collingwood
,
for the first respondent, urged me to exercise my discretion to
dismiss the application in the absence of the applicant furnishing
adequate security. Mr
Collingwood
concluded by arguing that the onus was on the applicant to prove to
prove waiver. The applicant had to show that the first respondent
with the full knowledge of its rights decided to abandon its rights
whether expressly or by conduct. Mr
Collingwood
relied on the case of
Laws
v Rutherfurd.
[2]
The first respondent contended that when it released a part of the
property on 11 September 2023 it did so in good faith and did
not
release all of the property. The release of only a part of the
property did not constitute a waiver.
Was the application
urgent?
[15]
Urgency
is not determined by the nature of the claim brought but by the
circumstances in which the applicant seeks its adjudication.
In terms
of Uniform rule 6(12) in order for an applicant to establish
urgency it must satisfy two requirements. First, the
applicant must
set out in his affidavit the circumstances which render the case
urgent. Second, the applicant must say why it would
not be able to
obtain ‘substantial redress at a hearing in due course.’
From the provisions of Uniform rule 6(12)
there is ‘no
class of proceedings that enjoy inherent preference’, or
‘inherent urgency’.
[3]
However, there are of course some types of cases which by their very
nature must be determined speedily and those cases include
among
others spoliation applications,
[4]
cases involving minor children,
[5]
insolvency proceedings
[6]
and
contempt of court proceedings.
[7]
In those cases too in order for the applicant to succeed it must
satisfy the two requirements in terms of Uniform rule 6(1).
A claim for vindication has been classified as one of the types of
cases which by its very nature has to be determined speedily.
[8]
[16]
It is common cause that on 8 November 2023
the applicant sent its representative Intertek to attend at the first
respondent’s
premises to uplift the cargo, but the first
respondent denied entry to Intertek’s truck and sent it away.
It is further common
cause that on 19 November 2023 the applicant’s
attorneys wrote a letter of demand to the first respondent in which
it demanded
the first respondent to release the property for
collection on 20 November 2023. On 19 November 2023, the applicant
transmitted
a release order to the first respondent to release the
goods identified on the annexures attached to the release order for
collection
on 20 November 2023. On 20 November 2023 when the Intertek
truck attended at the first respondent’s premises to collect
the
property it was denied entry and sent away.
[17]
It
has been held that where an applicant first seeks compliance from the
respondent before lodging an application it cannot be said
that the
applicant had been dilatory in bringing the application or that the
urgency thereof was self-created.
[9]
While Mr
Collingwood
argued that whatever urgency the matter might have had had been lost
he did not argue that I should strike the matter off the roll.
I was
and am still of the view that the matter was urgent and therefore
proceeded to hear the matter on its merits. I say
so because
the events which triggered this application was first respondent’s
refusal to release the applicant’s property
on 8 November
2023. When this happened a telephonic engagement between the
representatives of the applicant and the first
respondent ensued
regarding the first respondent’s entitlement to retain the
property. After these telephonic negotiations
had failed the
applicant addressed an email to the first respondent to say the first
respondent had no right to hold onto the applicant’s
property
for a payment dispute which had nothing to do with the applicant.
In this email the applicant requested the first
respondent to confirm
if it would put a stop to cargo being uplifted on 13 November 2023,
as trucks had been booked to uplift the
cargo. When the first
respondent did not respond to this email the applicant instructed its
attorneys to write a letter of
demand to the first respondent to
demand the release of the property on 20 November 2023. When
the first respondent refused
to release the property on 22 November
2023 the applicant launched these proceedings. This application
was instituted 13
days after the first respondent’s refusal to
release the property. It would have been unreasonable of the
applicant
to approach this court without first exacting compliance
from the first respondent which it did by way of its email and the
letter
demand. The applicant therefore has not been dilatory
and cannot be legitimately criticized for attempting to settle this
matter through dialogue like it did on 11 September 2023 before
resorting to litigation.
Was
the applicant the owner of the property?
[18]
For
the applicant to succeed he needs to prove that it was the owner of
the property in question and that the property in question
is still
in
esse
as an independent thing, and that the respondent is in control
thereof.
[10]
[19]
The first respondent does not seriously
dispute that the applicant is the owner of the property. I say so
because the first respondent
never disputed the applicant’s
ownership of the property in any of the telephonic and written
exchanges that the representatives
of the first respondent had with
the representatives of the applicant spanning from 7 September 2023
to 19 November 2023. Consequently,
there is no basis upon which the
applicant’s ownership of the property was put into question. I
find that the applicant was
the owner of the property and therefore
entitled to approach this court by means of
rei
vindicatio
.
Did
the first respondent have an enrichment lien over the property?
[20]
TJ
Scott in
Lawsa
provides the following useful discussion on liens:
[11]
‘
A
lien is conferred by operation of law. It must thus be classified as
a form of tacit security, resorting under hypothec or mortgage
in its
comprehensive sense, in contrast with express mortgages where the
security is created by agreement. Liens are also clearly
distinguished from tacit hypothecs and set-off; they are aptly
described as affording merely a defence against an owner’s
vindicatory action, and not a cause of action.
Where a person has
incurred expenditure on property in pursuance of a contractual
obligation existing between him- or herself and
the person enjoying a
possessory right over the property, this right of retention against
the latter is termed a debtor and creditor
lien. In the absence of
such an agreement, a person who has spent money or done work on
another person’s property generally
has a right of retention
over that property, operating against the entire world. This right
may be either a real lien, a salvage
and improvement lien, or an
enrichment lien. A lien enables the retentor to retain possession of
the property in question, until
the expenditure on that property has
been compensated.’ ((footnotes removed)
[21]
TJ
Scott continues:
[12]
‘
A
real lien is afforded a person who has expended money, or labour with
monetary value, on another’s property, without any
applicable
prior contractual relationship between the parties. The expenditure
in question has to be incurred while the person
asserting the lien is
in possession of the subject matter. Such liens are classified
according to the type of expenditure incurred
by the lien holder in
respect of another’s property.
It
is well established that the expenditure which may be incurred
in this regard may be classified under the following three
heads:
impensae necessariae
(necessary expenses),
that is expenses necessary for the preservation or protection of
another’s property or, stated
negatively, expenses without
which the property would either depreciate or perish;
impensae
utiles
(useful expenses), that is expenses which enhance the
market value of the property, although they are not necessary to
preserve
or protect it; and
impensae
voluptuariae
(luxurious expenses), that is expenditure that
does not preserve the property concerned, or increase its market
value, but merely
gratifies the caprice or fancy of a particular
person.
A lien for the recovery
of
impensae necessariae
is traditionally called s salvage lien
or a lien for repairs, while one for the recovery of
impensae
utiles
is termed an improvement lien.’ (footnotes omitted)
[22]
Furthermore, TJ Scott states:
‘
Where
a person who falls within one of the classes of persons endowed by
law with the power to exercise a real right of retention
over
property incurs expenses for the protection or preservation of
property, his or her right is, strictly speaking, a salvage
lien.’
(footnotes omitted)
Examples
include safe keeping of property and warehousing and other expenses
for the upkeep of goods which they have transported
and stored.
[13]
[23]
It is common cause between the parties that
the first respondent’s principal business is that of
warehousing and logistic
provider. The applicant disputes the
services that the first respondent renders, which according to the
first respondent includes
the storing of goods, their preservation
against deterioration and protection against theft for the benefit of
its customers. It
is the applicant’s version that it entered
into a secondary verbal agreement with the second respondent for the
use of the
warehouse space as storage in relation to which the second
respondent rendered monthly invoices for the total tonnage handled
and
stored by the second respondent for which the applicant would
effect payment. From the applicant’s own version, it seems
indisputable that the services which the first respondent rendered in
the form of warehousing included the storing of the property,
their
preservation against deterioration and protection against theft for
the benefit of the applicant. It goes without saying
that in order to
do this the first respondent by warehousing the property has had to
spend money for the storage, preservation
and protection of the
property against theft. The expenses, which were incurred in order
for these services to be rendered, were
necessary and without the
incurrence of these expenses the applicant’s property would
have depreciated or perished. It is
these very services that the
applicant paid the second respondent for without protest.
[24]
In
Brooklyn
House Furnitures (Pty) Ltd v Knoetze & Sons
[14]
it was stated:
‘
A
lien or right of retention,
jus
retentionis
,
is the right which the possessor of another’s thing, on which
he has spent money or labour retains the thing in his possession
until he is compensated as agreed, or where there was no agreement,
for his actual expenses or labour, but at most to the extent
of the
owner’s enrichment. It is simply a defence against the owner’s
rei
vindicatio
and does not constitute a cause of action. Our law recognizes
three (3) types of liens, viz. (1) liens for the storage or
preservation of a matter (‘salvage liens’), liens for
improvements (‘improvement liens’), and (3) liens
for
debts
ex
contractu
(‘debtor and creditor liens’).’
[15]
(my translation)
And further, the court
held:
‘
Appellant
would therefore, for the creation of a salvage lien have been
enriched if the respondent’s labour and expenses on
the
furniture were necessary for their preservation and protection.
According to the
evidence, Ms. Bond apparently lived on a smallholding outside
Johannesburg. Because she had to go to the
hospital and
apparently had to or wanted to vacate the house, arrangements were
made for the removal of her furniture, and not
only for the furniture
referred to in the higher purchase contract. At the trial it
was not disputed that, if the furniture
had been left unattended in
the house, anything could have happened to it – it could have
been stolen or damaged.
In the
light of the circumstances, it could hardly be disputed nor was it
disputed that the transport and storage of the furniture
were
necessary for their preservation and protection and that the
respondent’s labour and expenses in connection therewith
were
necessary expenses.’
[16]
(my translation)
[25]
It is trite that the law does not exist in
a vacuum. Legal principles must be applied to the unique context of
each case. While
the applicant disputed that the first respondent
lawfully exercised a right of retention over the property in terms of
a salvage
lien in my view it is indisputable that the first
respondent spent money preserving and protecting the applicant’s
property
from theft.
[26]
Ms
Goosen
,
counsel for the applicant, in articulation of her contentions
referred me to the case of
Naidoo
v Sanbonani Express Freight
.
[17]
The facts of
Sanbonani
are
distinguishable from the facts of the present case. The issue in
Sanbonani
was
whether it was necessary for the second respondent to have stored and
insured the goods, which it was required to deliver.
[27]
It is common cause between the parties that
the applicant was aware that the second respondent was in breach of
its obligations
to the first respondent in terms of the service
agreement at least by 7 September 2023. Notwithstanding the
applicant’s knowledge
of this position, the applicant did not
vindicate its property instead on 18 September 2023 it sought to
negotiate an agreement
to move over the warehousing and storage
solution directly to the first respondent and to bypass the second
respondent. When this
agreement did not materialize the applicant
still did not vindicate the property but exacted the services from
the first respondent
through the second respondent. When the
applicant did that by conduct it acquiesced to the storage of the
property, its preservation
against deterioration and protection
against theft. The first respondent expended money and labour in
storing the property, preserving
it against deterioration and
protection against theft, without any applicable prior contractual
relationship between the parties.
It is therefore incorrect as the
applicant suggests that the first respondent is seeking to assert a
debtor and creditor lien under
the guise of a salvage lien.
Consequently, I am in agreement with Mr
Collingwood
that the first respondent is entitled to retain possession of the
property until his enrichment lien has been met alternatively
until
the applicant has furnished adequate security for the payment of the
first respondent’s enrichment claim.
Did
the first respondent lose control of the property on 11 September
2023?
[28]
The applicant contended that when the first
respondent released some of the property on 11 September 2023 it
relinquished control
over the property. It is trite that where
a lien holder voluntarily releases the property subject to a right,
the lien is
lost and remains irrevocably extinguished, and it does
not revive if the property at a later stage reverts to his or her
control.
While it is true that some of the property was released to
the applicant on 11 September 2023 it can hardly be said that
releasing
only part of the property amounted to the relinquishment of
control over the property as the first respondent still has control
over the remainder of the property. Further, the release of
part of the property was not voluntary in the sense that it was
pursuant to the written and telephonic exchanges between the
representatives of the first respondent and the applicant.
[29]
In my view, the applicant failed to show
that the first respondent with the full knowledge of its rights
decided to abandon its
rights to the property whether expressly or by
conduct. The first respondent only released part of the
property while it
retained the remainder of the property which to
date is still under its full control.
[30]
For all these reasons I dismissed the
applicant’s application with costs.
CHITHI
AJ
APPEARANCES
Counsel
for the Applicant
:
Adv.
D. E. Goosen
Instructed
by
:
Scalco
Attorneys Inc
Counsel
for the First Respondent :
Adv.
A. D. Collingwood
Instructed
by
:
Dukhi
Attorneys Inc
Date
of the hearing
:
28
November 2023
Date
of Reasons for the Order :
28
February 2024
[1]
Pheiffer
v Van Wyk and others
[2014]
ZASCA 87; 2015 (5) SA 464 (SCA).
[2]
Laws
v Rutherfurd
1924
AD 261
at 263.
[3]
Volvo
Financial Services Southern Africa (Pty) Ltd v Adamas Tkolose
Trading CC
[2023] ZAGPJHC 846 para 6.
[4]
Tswelopele
Non-Profit Organisation and others v City of Tshwane Metropolitan
Municipality and others
2007
(6) SA 511
(SCA)
para
21.
[5]
B
v B
[2007] ZAGPHC 306
;
2008
(4) SA 535
(W) para 23.
[6]
ABSA
Bank v De Klerk and Related Cases
1999
(4) SA 835
(E) at 839A;
Ex
parte Nell N.O. and Others
(45279/14) [2014] ZAGPPHC 620;
2014 (6) SA 545
(GP) para 54.
[7]
Protea
Holdings (Pty) Ltd v Wright and another
1978
(3) SA 865
(W) at 868H - 869A;
Wright
v St Mary's Hospital, Melmoth, and another
1993
(2) SA 226
(D) at 228E-F.
[8]
VSA
Motor
Distributors (Pty) Ltd v Rossman and another
1980
(3) SA 1164
(D);
Chetty
v Naidoo
1974 (3) SA 13
(A) at 20D.
[9]
Nelson
Mandela Metropolitan Municipality and others v Greyvenouw CC and
others
2004
(2) SA 81
(SE)
para
34.
[10]
Goudini
Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd
[1992] ZASCA 208
;
1993
(1) SA 77
(A) at 82;
Smit
v Kleinhans
[2021] ZASCA 147
paras 8-9; Chetty v Naidoo 1974 (3) SA
12 (A).
[11]
26(1)
Lawsa
3ed para 293.
[12]
26(1)
Lawsa
3ed para 297.
[13]
26(1)
Lawsa
3ed para
306.
[14]
Brooklyn
House Furnishers (Pty) Ltd v Knoetze and Sons
1970
(3) SA 264
(A) (
Brooklyn
House Furnishers)
.
[15]
Brooklyn
House Furnishers
at
270F-G.
[16]
Brooklyn
House Furnishers
at
271F-H.
[17]
Naidoo
v Sanbonani Express Freight and another
2008
(5) SA 530
(D).