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IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of interest to other Judges: YES/NO
Circulate to Magistrates: YES/NO
Case no: 570/2024
In the matter between:
HANDAX MACHINERY (PTY) LTD Applicant /1st Respondent
and
NALA LOCAL MUNICIPALITY 1
st Respondent /Applicant
MABOELA FO RESTRY & CONSTRUCTION CC 2
nd Respondent/2nd Respondent
Neutral citation: Handax Machinery (Pty) Ltd v Nala Local Municipality & 1 Other (Leave to Appeal) (570/2024)
Coram: Van Zyl, J
Heard: 9 September 2024
Delivered: 7 March 2025
Summary :
Application for leave to appeal – Spoliation Order – The application for leave to
appeal , dismissed , with costs , counsel`s fees on scale B.
ORDER
1. The application for leave to appeal is dismissed, with costs, with counsel`s
fees to be taxed on scale B.
JUDGMENT
Van Zyl , J
2
[1] This is an application for leave to appeal against the order which I made and
the judgment I delivered in terms whereof I granted condonation on the basis of
urgency in terms of rule 6(12) and granted a spoliation order and ancillary relief ,
with costs, in favour of the applicant in that application (Nala Local Municipality) .
[2] The present applicant was the first respondent in the spoliation application
(‘Handax’) and t he present first respondent was the applicant (‘Nala’) . The present
second respondent was also the second respondent in the spoliation application
(‘Maboela’) . Maboela did not oppose the spoliation application and is also not
opposing this application for leave to appeal. The crux of the order was contained in paragraph 2 thereof:
‘
2. The first respondent is ordered to forthwith restore the applicant’s free and
undisturbed possession of the two trucks, to wit: two Powerstar 6M3 Tipper
Trucks 2628 6x4 with vehicle identification numbers (VIN) LBZ[ …]2 and
LBZ[…]7, respectively, and within 2 days of this order being served on the first
respondent.’
Leave to appeal legal principles:
[3] Section 17(1)(a) of the Superior Courts Act, 10 of 2013 (‘the Act’) ,
determines as follows:
‘Leave to appeal may only be given where the judge or judges concerned are of the
opinion that –
(a)(i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;
(b) …’ (My emphasis)
[4] In Acting National Director of Public Prosecutions v Democratic Alliance I n
Re Democratic Alliance v Acting National Director of Public Prosecutions
(19577/09) [2016] ZAGPPHZ 489 (24 June 2016) , the court held ( at paragraph 2 5
of the judgment ) that the Act has raised the bar for granting leave to appeal and in
this regard it referred to the judgment of The Mont Chevaux Trust (IT 2012/28) v
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Tina Goosen and 18 Others 2014 JDR 2325 (LCC), where the following was
stated:
‘It is clear that the threshold for granting leave to appeal against a judgment
of a High Court has been raised in the new Act. The former test whether leave to
appeal should be granted was a reasonable prospect that another court might come
to a different conclusion, see Van Heerden v Cronwright & Others 1985 (2) SA
342 ( T) at 343H. The use of the word "would" in the new statute
indicates a measure of certainty that another court will differ from the court whose
judgment is sought to be appealed against.’
See also Rohde v S 2020 (1) SACR 329 (SCA) para 8 and Fair -Trade
Independent Tobacco Association v President of the Republic of South Africa and Another (21688/2020) [2020] ZAGPPHC 311 (24 July 2020) para 4.
[5] In Municipality of Thabazimbi v Badenhorst (66933/2011) [2024] ZAGPPHC
195 (26 February 2024) paras 9 – 10 the court also dealt with the more stringent
test for an application for leave to appeal and held, inter alia , as follows:
‘[9] … A possibility and discretion were therefore, in the words of the legislation and
consciously so, amended to a mandatory obligatory requirement that leave may not
be granted if there is no reasonable prospect that the appeal will succeed. It must
be a reasonable prospect of success; not that another Court may hold another view.
[10] The Court a quo may not allow for one party to be unnecessarily put through
the trauma and costs and delay of an appeal. …
[11] In MEC Health, Eastern Cape v Mkhitha (1221/2015) [2016] ZASCA 176 (25
November 2016) the Supreme Court of Appeal held:
" … [17] An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance of success on
appeal. A mere possibility of success, an arguable case or one that is not
hopeless, is not enough. There must be a sound, rational basis to conclude
that there is a reasonable prospect of success on appeal." ’
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[6] In considering whether there is some other compelling reason why the
intended appeal should be heard, as provided for in section 17(1)(a)(ii) of the Act,
an important question of law or a discrete issue of public importance that will have
an effect on future disputes, may constitute such a compelling reason. However,
the merits thereof still need to be considered in deciding whether to grant leave to
appeal or not. In Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 2020 (5) SA
35 (SCA) para 2 the Supreme C ourt of Appeal determined as follows in this
regard:
‘[2] In order to be granted leave to appeal in terms of s 17(1) (a)(i) and s
17(1) (a)(ii) of the Superior Courts Act an applicant for leave must satisfy the court
that the appeal would have a reasonable prospect of success or that there is some
other compelling reason why the appeal should be heard. If the court is
unpersuaded of the prospects of success, it must still enquire into whether there is a
compelling reason to entertain the appeal. A compelling reason includes an
important question of law or a discrete issue of public importance that will have an
effect on future disputes. But here too, the merits remain vitally important and are
often decisive. Caratco must satisfy this court that it has met this threshold.’ (My
emphasis)
See also Poulter v Commissioner for South African Revenue Service (Leave to
Appeal) (A88/2023) [2024] ZAWCHC 100 (28 June 2024) .
[7] Uniform rule 49(1)( a) and 49(4) determine, respectively, as follows:
‘(1)(a) When leave to appeal is required, it may on a statement of the grounds
therefor be requested at the time of the judgment or order.
. . . (4) Every notice of appeal and cross -appeal shall state —
(a) what part of the judgment or order is appealed against; and
(b) the particular respect in which the variation of the judgment or order is
sought.
Merits of the application for leave to appeal:
Introduction:
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[8] Ms Ferreira, on behalf of Handax , prepared very comprehensive heads of
argument and also presented detailed submissions in her oral argument. Mr Louw, on behalf of Nala, also prepared very valuable heads of argument and duly responded to the oral submissions of Ms Ferreira. I am indebted to both counsel.
However, I do not intend dealing with all the submissions in detail. I also do not consider it necessary to repeat the factual background, as same is already recorded in detail in my judgment. I have, however, considered all the submissions
of the respective counsel. Appealability:
[9] I mero motu raised the question of the appealability, or not, of a spoliation
order. I am indebted to Mr Louw who filed supplementary heads of argument on the said issue. He referred me to relevant authority on the basis of which it is evident that a spoliation order is regarded as a final order and therefore indeed appealable. See, inter alia, Nienaber v Stuckey 1946 AD 1049 at 1053; Ntenzeni v Magistrate, Sterkspruit [1996]] 2 All SA 148 (Tk) and King Sabata Dalidyebo Local
Municipality v Noah [ 2018] JOL 40325 (ECM).
The contents of the notice of application for leave to appeal :
[10] It was submitted on behalf of Nala that the notice of application for leave to
appeal is fatally defective in that it does not comply with the prescripts and principles as set out in, inter alia, Songono v Minster of Law and Order 1996 (4) SA 384 at 385I – J and Ntsoereng v Sebof i; In re Sebofi v Ntsoereng [2018] JOL
39920 (FB). Mr Louw submitted that on this basis alone, the application stands to be dismissed with costs.
[11] From a reading of the notice of application for leave to appeal I agree that
the grounds are not set out as clearly and succinctly as they ought to have been.
Even background facts contained in my judgment, which do not amount to findings, are set out as ‘grounds’ for the application for leave to appeal. In the said notice i t is also not contended that the appeal would have reasonable prospects of
6
success, but merely that ‘there is a possibility that another court shall find that the
Honourable Court erred’, which is clearly not the required test.
[12] However, despite the aforesaid valid criticism I consider it in the interest of
the parties that the merits of the application be adjudicated in order to bring the matter closer to finality. I am consequently willing to condone the defects in the notice of application for leave to appeal.
Urgency:
[13] The same arguments which were presented during the hearing of the
spoliation application as to why condonation should not be granted to Nala, were repeated on behalf of Handax. I have duly and fully dealt with the issue of urgency in my judgment and exercised my discretion accordingly. In my view there is not a
reasonable
prospect that the intended appeal will succeed on the issue of urgency.
Authority of the Municipal Manager:
[14] I have dealt with this issue in detail in my judgment, with reference to
authority. Mr Louw, in his heads of argument, also cited the judgment of Koster,
Berdy Swartruggens Tax Payers Association v Khetleng River Local Municipality
(CIVAPP5) [2016] ZANWHC 38 (17 June 2016) paras 4- 9, where a similar point
was dealt with by the Full Court o f the North West High Court. In my view t he
intended appeal has no reasonable prospect that it will succeed on this point.
[15] In respect of the argument raised by Handax that the 10- day period
stipulated in Rule 7 had not yet expired at the time the application was heard, it
was for Handax to have issued a Rule 7 notice immediately after having received
the application papers and not wait for 10 days, considering that the application
was brought on an urgent basis . There was also no indication in the answering
affidavit that Handax still intended to issue such a notice, nor did Handax request
a postponement to grant it such an opportunity.
Contractual right to ownership of the trucks :
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[16] An argument which was not raised by Handax during the hearing of the
spoliation application, is that Handax holds the ownership of the trucks in terms of
the contract concluded between Handax and Maboela until the trucks had been
fully paid by Maboela.
[17] It is trite that for purposes of spoliation two allegations must be made and
proved, which requirements I also referred to in my judgment, with applicable authority in support thereof:
‘(a) that the applicant was in possession of the property; and
(b) that the respondent deprived him of the possession forcibly or wrongfully against
his consent.’
[18] In Erasmus Superior Court Practice, DE van Loggerenberg, at D7-2 to D7-3 the
following principles are stated with reference to applicable authority:
“The reason behind the practice of granting spoliation orders is that no man is
allowed to take the law into his own hands, and to dispossess another illicitly of
possession of property. This applies equally whether the despoiler is an individual or
a government entity or functionary. If he does so, the court will summarily restore
the status quo ante, and will do that as a preliminary to any inquiry or investigation
into the merits of the dispute. The rule is spoliatus ante omnia restituendus est. A
court hearing a spoliation application does not concern itself with the rights of the
parties (whatever they may have been) before the spoliation took place; it merely
inquires whether or not there has been a spoliation, and if there has been, it
restores the status quo ante. In spoliation proceedings the court will, therefore,
neither enter into the lawfulness of the applicant’s possession, nor into the question
of ownership.’ (My emphasis)
See also Rayi v Gxabeka and a related matter (Leave to Appeal) [2023] JOL
58357 (ECP) paras 4 – 8 and 12 - 13.
[17] However, Handax relies, inter alia, on Street Pole Ads Durban (Pty) Ltd v
Ethekweni Municipality 2008 (5) SA 290 (SCA) where the court held as follows at
para 15:
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‘[15] This argument invokes the principle that an offending respondent in a
spoliation application is generally not allowed to contest the spoliated applicant's
title to the property. That is because good title is irrelevant: the claim to spoliatory
relief arises solely from an unprocedural deprivation of possession. There is a
qualification, however, if the applicant goes further and claims a substantive right
to possession, whether based on title of ownership or on contract. In that case “the respondent may answer such additional claim of right and may demonstrate, if he
can, that applicant does not have the right to possession which it claims”. This is
because such an applicant “in effect forces an investigation of the issues relevant
to the further relief he claims. Once he does this, the respondent's defence in
regard thereto has to be considered”.' (My emphasis)
[18] Handax similarly relies on Stocks Housing (Cape) (Pty) Ltd v Chief Executive
Director, Department of Education and Culture Service [1997] JOL 294 (C) ; 1996
(4) SA 231 (C) at 24 4C - D:
‘The qualification to the rule that a person who has been despoiled of possession
must be restored to possession before any dispute as to who is entitled to
possession will be investigated is that, if the applicant goes further than to claim
spoliatory relief, and claims a substantive right to possession, whether based upon
a vindication or upon contract, then the respondent m ay answer such additional
claim of right and may demonstrate, if he can, that applicant does not have the right
to possession which it claims. The Court will not order return of possession of the property in such a case if respondent succeeds in refuting the applicant's claim of
right to possession.’ (My emphasis)
[19] It was submitted on behalf of Handax that in this matter Nala relies upon the
contract of sale it concluded with Maboe la in terms whereof they bought the two
trucks from Maboela and that a contractual claim is therefore the cause of action
of Nala. Handax , therefore, contends that it is entitled to rely on their ownership of
the trucks in terms of the contract of sale they concluded with Maboela; hence, their substantive right to possession on the basis of their ownership.
[20] I cannot agree with the aforesaid submission. As correctly submitted by Mr
Louw, the buying of the trucks from Maboela was only mentioned by Nala (and by
myself in my judgment) as part of the factual background as to how they came to
be in possession of the trucks. It does not constitute the cause of action of Nala.
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The cause of action and the nature of the relief sought by Nala is clearly merely
based on the factual free and undisturbed possession of the trucks and the wrongful and unlawful deprivation thereof by Handax. ; hence, spoliation. Nala did
not ‘go further ’ by claiming any substantive right to possession. This is evident
from paragraphs 35, 37 and 38 of the founding affidavit , under the heading ‘T he
Spoliation ’:
’35. The Applicant had purchased the trucks and was in free, peaceful and
undisturbed possession thereof when the 1st Respondent deprived the
Applicant of the said trucks unlawfully.
36. …
37. Any dispute pertaining to the ownership of the trucks seems to be vis -à-vis the
Respondents and has nothing to do with the Applicant.
38. The 1
st Respondent deprived the Applicant of its possession without a valid
Court Order, warrant or any other legal process. ’
[21] There is consequently no reasonable prospect that the appeal would
succeed on this ground.
The spare keys:
[22] Handax relies on De Beer v Zimbali Estate Management Association (Pty)
Ltd 2007 (3) SA 254 (N) and similar authority for the submission that due to the
fact that Handax had the spare keys of the truck, Nala was not in exclusive
possession of the trucks. However, the authority being relied upon by Handax is ,
in my view, factually distinguishable from the present matter, in that those matters
dealt with buildings to which various people had access by means of keys , discs
and alike and where the court found that ‘in the present case’ possession was so
watered down that it ceases to become the sort of possession that is required to
obtain the protection of a spoliation order. That is a far cry from the facts in the
present matter. Ha ving had the spare keys did not give joint possession of the
trucks to Handax. There is no basis upon which I can find that this ground of appeal has any
reasonable prospect that it will succeed on appeal.
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Unlawful deprivation of possession:
[23] It is the submission on behalf of Handax that the removal of the trucks was
not unlawful since the trucks were removed with the knowledge and consent of the duly authorized representative of Nala. However, I fully dealt with the relevant authority and evidence on this issue at paragraphs 54 – 57 of my judgment.
Having again considered all the evidence, facts and circumstances I cannot find that this ground of appeal has any reasonable prospect of succeeding on appeal. Conclusion:
[24] I have to agree with the submission of Mr Louw that the intended appeal is
wholly unmeritorious, both on factual and legal basis. There is no reasonable prospect that it will be successful.
[25] Handax did not cite a single ground in its notice of application for leave to
appeal that there is a compelling reason why the appeal should be heard as
provided for in section 17(1)(a)(ii) of the Act . Contrary hereto , Ms Ferreira
submitted in her heads of argument and during the hearing of oral argument that ‘the issues raised in this matter are of great importance to both parties and the general public’ and that there are ‘numerous conflicting judgments on the issues raised’ by Handax . I cannot agree with these submissions. Although I accept that
the matter is of importance to both parties, it deals with spoliation, the principles of which are trite. The issues raised are not novel. Further, there are no conflicting judgments applicable. The distinctions between the respective judgments are as a
result of different factual scenarios, not because there are conflicting views on the
respective principles . In any event, a s evident from the applicable authorities
referred to earlier in this judgment, the merits remain vitally important and it is for
Handax to satisfy the court that it has met the threshold. Handax has failed to do
so.
[26] The application for leave to appeal consequently stands to be dismissed.
Costs:
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[27] There is no reason why costs should not follow t he outcome.
[28] With reference to Uniform ru le 67A(3), read with Uniform R ule 69(7) , I agree
with Ghubhelabm (Pty) Ltd v R.A.W. Truck Trading CC (B3217/2023) [2024]
ZAGPPHC 460 (26 April 2024), w here the court found as follows at para 27 of the
judgment:
‘
Costs orders, including the assessment of the appropriate Rule 69 scale, remain a
matter for the exercise of judicial discretion. ’
[29] In view of the totality of the factors to be considered in terms of Rule
67(A)(3)(b), as well as the facts and circumstances of the present matter, I agree
with the submission of both counsel that the appropriate scale of counsel`s fees is
scale B.
Order:
[30] The following order is made:
1. The application for leave to appeal is dismissed, with costs, with
counsel`s fees to be taxed on scale B.
_______________
C. VAN ZYL, J
Appearances
For the Applicant: Adv J Ferreira
Instructed by: Simpson Incorporated
C/o Webbers Attorneys
BLOEMFONTEIN
Email: john@simpsonlaw.co.za
For the First R espondent: Adv MC Louw
Instructed by: Maritz -Willemse Attorneys
C/o Hill, McHardy & Herbst
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BLOEMFONTEIN
Email: lucinda@hmhi.co.za
bertus@mwattorneys.co.za