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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NO: 15893/22

In the matter between

BAL LOGISTICS (PTY) LTD T/A AFRICAN APPLICANT
LOGISTIC SERVICE

AND

MPACT PLASTIC CONTAINERS (PTY) LTD 1st RESPONDENT

MPACT PLASTIC CONTAINERS CASTLEVIEW 2nd RESPONDENT
(PTY) LTD

CORAM: THULARE J, PANGARKER J, ELLIOTT AJ
Date of Hearing : 24 January 2025
Date of Delivering : 30 May 2025

______________________________ ____________________________________
ORDER
__________________________________________________________________

PANGARKER, J (ELLIOTT, AJ concurring):

I would make the following order:

Clause 4 of the order of the court of first instance is substituted i n whole, and
replaced with the following order:

“4. The applicants pay into the trust account of the respondents’ attorneys
(Account number 0 […] held at Standard Bank Winderemere branch) the
amount claimed to be due and payable, to wit, R19 717 827 -03, in respect
whereof the respondent contends it holds a lien, to be held as security in
place of such lien, subject to the following:
4.1 The applicants shall institute action in respect of its a lleged claims in
respect of the goods and/or in relation to the security in place of the lien or
any part thereof within 21 days of the grant of this order.
4.2 Should the applicants fail to institute action in accordance with paragraph
4.1, the amount pai d as security together with any interest calculated to date
of payment shall be paid to the respondent.
4.3 In the event that the applicants’ action in paragraph 4.1 does not succeed,
or succeeds in part, the balance of the security and interest calculated to the
date of payment, shall be paid forthwith to the respondent.
4.4 In the event that the applicant’s action in paragraph 4.1 succeeds, or
succeeds in part, the security or the balance thereof and the interest
calculated to the date of payment, shall b e repaid forthwith to the applicants.”
The respondents are to pay the costs of the appeal on a party to party costs
on scale C, to be taxed, such costs to include the costs of two counsel where
so employed.

________________________________________________ __________________

DRAFT JUDGMENT
__________________________________________________________________

[1] In this full court appeal the appellant sought the variation of an order directing the
release of goods held subject to a contractual general lien an d pledge against
security which was R8 million less than the claims secured. The appellant’s
contention was that the court should not have made final findings on the affidavits in
urgent proceedings. The appellant submitted that the order should have provi ded for
security for the full value of the amounts owing to the appellant as secured by the
general lien and pledge subject to proceedings being instituted to determine whether
the security be paid to the appellant or refunded.

[2] The respondents were no t party to the contract between the importer (SDG) and
the freight forwarder (ALS). The respondents’ submission was that as owners of the
materials released, they were not bound by any contractual lien or pledge in favour
of the appellant. The respondents argued that they had provided security more than
any enrichment claim the appellant may have. The respondents’ submission was
that the test to be applied in the determination of the application on the affidavits for
the release of materials from the detent or’s lien was different from the ordinary and
usual test as the relief, if granted, was temporary in nature and not a final
determination. The respondents argued that by the variation the appellant sought to
relieve itself of the duty to allege and prove t he basis and quantum of its claims
allegedly secured by liens and a pledge and to place these duties on the
respondents, and this was not permissible.

[3] Leave to appeal to the full court was granted by the Supreme Court of Appeal. In
the court of first instance the appellant was a respondent in an application wherein
the present respondents sought an order to make the goods held in its warehouses
subject to a lien, available for collections and to deliver possession; for the
respondents to pay into trust amounts claimed due and payable in respect of the
contention of lien as security subject to the appellant instituting action in respect of
the lien within 21 days of the order; that the respondents indemnify it against any
claim in respect of such deliver y and that it provide full particulars of the
whereabouts of the goods if it was no longer in possession as well as costs.

[4] The goods had been delivered to the appellant’s warehouses by Solomon David
Group (SDG) before SDG went into business rescue. Th e goods were never in the
respondents’ possession, and they were held in the appellant’s warehouses. There
was no reference to the respondents in the bills of lading which set out the shipping
parties in relation to the goods. There was also no reference t o the respondents in
what was called an EDI notification which was issued by Customs and Excise in
SARS to indicate the release of the goods imported and subject to duty. In other
SARS documents SDG was the importer. The respondents did not appear anywhere
in the relevant documents. The respondents had to prove their alleged ownership of
the goods.

[5] The appellant had undertaken to release the goods to the respondents upon
payment of all the amounts due to it in respect of their forwarding, clearance,
transportation and storage to the respondents’ attorneys to be held in trust pending
the respondents indemnifying the appellant from other claims and the fulfillment of
other conditions. The appellant’s opposition to the application was informed by the
view that the respondents sought urgent relief under a guise of a vindicatory
application to which the respondents were not entitled. The appellants’ case was that
the case was ultimately about money, The respondents made it quite clear that they
intended to u se polypropylene (PP) and High -Density Polyethylene (HDPE) pellets to
produce finished products. The products would be consumed in use and therefore
the relief that the respondents sought was final.

[6] The appellant operated in the freight forwarding and logistics industry and
provided warehousing as part of its services. The appellant was one of the
forwarding and warehousing companies which the SDG used. The appellant acted
as a freight forwarder and arranged for all freight forwarding, clearing and sto rage of
goods imported by SDG which involved inter alia arranging for and paying all of the
expenses relating to the ocean transport and clearing of the cargo, including the
charges of the ocean carrier, all port charges, import VAT and import duties, all of
which must be met before the goods will be released, and then taking possession of
the goods at the port, transporting the goods to warehouses and storing goods until
released or delivered on instructions of SDG. The respondents sought an urgent rei
vindicatio in respect of goods it allegedly owned which were held by the appellant in
its warehouses in Cape Town, Johannesburg and Durban. The goods consisted of
raw material used by the respondents in their manufacturing processes, which goods
were about to run out and to lead to a complete shutdown of their ability to
manufacture and result in irreparable financial losses. The respondents were leading
suppliers of plastic containers and all of their importing and ordering were carried out
from their premise s in Atlantis, Cape Town. For importing raw materials from the
Middle, Far East, Europe and the Americas, the respondents purchased and paid for
materials from SDG at a delivered cost, in other words, the price paid included the
delivery of the materials t o any one of the respondents’ plants. The respondents’
case was that ownership of the materials passed to the respondent once the
materials cleared customs into South Africa. The respondents conducted frequent
audits to ensure accurate records of stock lev els.

[7] The respondents conducted an audit on short notice and found large
discrepancies between their records of what should have been in and what was in
stock. Subsequently the respondents discovered that having paid for material in full,
the responde nts had yet to receive confirmation that the material was available. They
had received bills of lading but were told SDG was still waiting for delivery. In
another instance whilst they were told that SDG was still waiting for delivery but in
fact the mater ial had been delivered a month before. As at the date of proceedings,
the respondents’ total stock of material was 1 491 100 tons, of which R56 150 tons
were with another warehouser. The balance was with the appellant, which on a
simple mathematical calcul ation amounted to 1 434 950 tons. When SDG went into
business rescue the respondents attempted to conduct an audit of stock in the
warehouses of the appellant and were denied access. The respondents have since
attempted to access and remove the stock, with out success. The respondents
tendered payment in respect of any valid and enforceable lien that the appellant may
have over the stock that was in the appellant’s warehouses, and the respondents
were willing to indemnify the appellant against the release of stock, against any claim
which any third party may have against the appellant in respect of the stock so
released. The appellant was willing to release the stock on condition that the claimed
lien over the stock was paid to it, and undertook to provide de tails of its claimed lien.
The parties have been unable to reach agreement on the details of the claimed lien.
This led to the urgent application.

[8] The appellant did not appeal against the making of such order in principle. Its
appeal was directed at the amount of security stipulated in the order and the terms of
the order requiring that it institute an action in respect of its alleged causes of action
as secured by such lien. The appellant’s submission was that the order had two
adverse effects to it namely: (1) the order summarily divested it of the benefit of a
debtor/lien general and special lien and pledge over goods in its possession without
security at least to the extent of R8 507 111 -97 and (2) the order put it at risk of
being deprived of the benefit of that debtor/creditor lien and pledge and even an
enrichment lien to the extent of the security ordered, that of R11 210 715 -06. In
terms of the contract between th e appellant and the SDG, inter alia, the appellant
was afforded a special and general lien and pledge over all goods either for monies
due in respect of such goods or for other monies due to the appellant. The relevant
provisions are as follows (Clause 38) :

“LIEN
All goods and documents relating to goods including bills of lading and import
permits, as well as all refunds, repayments, claims and other recoveries, shall
be subject to a special and general lien and pledge either for monies due in
respect of such goods or for other monies due to the company from the
customer, sender, owner, consignee, importer or the holder of the bill of lading
or their agents, if any.”

[9] The appellant’s case was that when SDG entered business rescue in October
2023, SDG o wed the appellant R28 160 413 -51. As at 20 October 2023 and in
relation to goods imported by SDG for the respondents, SDG was indebted to the
appellant for such freight forwarding charges in a total amount of R19 717 827 -03
which comprised of R8 507 111 -97 for goods already released and R11 210 725 -06
including storage charges calculated to the end of October in relation to goods still in
the appellant’s possession and under its control. The respondents demanded
delivery of goods from the appellant and the appellant’s response referred to the
general and special lien and pledge and required payment of the full amount of R19
717 827 -03 and an indemnity. The respondents brought an urgent application issued
on 18 October 2023 and heard on 20 October 2023 in whi ch they sought delivery of
the goods in possession of the appellant and in the event that the appellant asserted
a lien, that the goods be released to the respondents against a tender to provide
security in place of any valid lien which the appellant was a ble to establish. No
amount of the proposed security was set out in the draft order prayed for.

[10] The appellant’s case was that the respondents claimed ownership of the goods
on clearing customs into South Arica, which was a bald statement. The respond ents
did not describe the process of delivery as required under South African law for the
transfer of ownership of movables and did not include any evidence of the transfer of
ownership from SDG to the respondents. The appellant’s case was further that the
evidence relied on by the respondents indicated, prima facie, that there was no
opportunity for delivery in any form meeting the requirements of South African law
necessary to effect the transfer of ownership. The bills of lading were non -negotiable
ident ifying SDG as the named consignee. This consequently precluded the bills of
lading operating as a document of title and transferring ownership of the cargo by
virtue of negotiation or transfer of the bills of lading, and the bills of lading recorded
this e xpressly. The appellant cleared the cargo, took physical delivery and
possession thereof from the shipping line and retained physical possession thereof
on the basis that it was SDG which was the owner of the cargo and on whose behalf
it received and held the goods. The respondents did not and could not contend that
the appellant had agreed to hold the goods on behalf of the respondents as that
might constitute the requisite delivery in the form of attornmentatonement. In the
answering affidavit, the appell ant clearly set out that the respondents had to allege
and prove that they were the owners of the goods. The appellant indicated its
challenge to ownership and amongst others indicated that the goods were held in its
warehouses, have never been in the resp ondents’ possession, there was no
reference whatsoever to the respondents in the bills of lading, there was no
reference to the respondents on the clearing instructions, which evidenced the owner,
prima facie , as SDG. The respondents’ details did not appea r on the Customs and
Excise documents. In the business rescue application for SDG, the affidavit indicated
that SDG had substantial stock in reserve stored at its transporter’s warehouses,
signalling that according to SDG the respondents did not own stock to which it lay
claim.

[11] On the other hand, the respondents explained the process. The respondents
would request SDG to provide a quotation for a specific grade of raw material and
SDG would provide a pro forma invoice on which the respondents would p ay a
deposit of between 30% and 50%. SDG would secure the material from its
international exporters which would then be shipped to South Africa. SDG would
provide the respondents with a bill of lading which ordinarily recorded SDG as
consignee. The respond ents would pay the remaining balance due. Upon clearing of
the materials through customs, SDG would inform the respondents that the materials
were available for consumption and thereafter SDG would provide a final invoice to
the applicants. The respondents would pay a delivered price and SDG would see to
the warehousing of the raw material until such time as it was required by the
respondents for manufacturing and at which time and on request it would provide
material in the quantities required by the respo ndents at one or other of their
manufacturing plants. As between the respondents and SDG delivery of the material
would be effected upon the release of the material and the housing thereof in
warehouses. According to the respondents, by the time the raw ma terial was
warehoused, having cleared customs into South Africa, the applicants have paid in
full for such material and are the owners thereof.

[12] The respondents’ case was that the appellant’s statement appeared to relate to
consignments beyond simply those relevant to the application. It dated back to June
2023 and the respondents had continued to draw down on the stock held in the
appellant’s warehouses since June 2023 until they were refused access in October
2023. It was thus not clear on what basis the appellant now asserted any lien over
the respondents’ property or at all. According to the respondents, in simplified form
the argument was that the respondents should be ordered to provide security to the
full amount allegedly owed by SDG to the appe llant in respect of a debtor -creditor
lien and pledge pursuant to a contract, whereto the respondents was not a party, and
should the respondents seek to recover the security in whole or in part it shall within
a stipulated time institute action against th e appellant challenging the liens or the
amount of the claims, failing which the security was to be paid to the appellant.
According to the respondents the order now sought showed that the appellant
misunderstood the nature of a lien. A lien did not entitl e the holder thereof to
payment of the holder’s claim without the need for it to establish such claim by
means of court procedure. In effect, so the argument went, the appellant sought an
order that the respondents had to disprove the existence of any lien as well as the
quantum of the appellant’s claim. The respondents would have the onus to disprove
a claim and the quantum thereof failing which the appellant would be entitled to
payment without it having to prove the existence and quantum of its alleged c laims.

Ownership

[13] The most important derivative mode of acquisition of ownership in the case of
movables is delivery. To transfer ownership from the predecessor to the successor,
there must be agreement between the parties to transfer ownership and t here must
be a form of conveyance, which is delivery in movables. These two requirements,
the mental element and the physical element must be satisfied for the transfer of
ownership [ Wille’s Principles of South African Law , 9th ed, General Editor: F du Boi s,
2007 at p 519 -520]. Attornment is a method of delivery which occurs when the
property to be transferred is in the physical control of a third party who holds it on
behalf of the owner. Attornment is effected by a tripartite agreement between the
partie s concerned that the holder will henceforth no longer hold the property on
behalf of the transferor but on behalf of the transferee. It requires a tripartite
agreement or mental concurrence on the part of all three interested parties that the
holder hencef orth will hold the property on behalf of the transferee and not on behalf
of the transferor [ Wille’s Principles p 530 under para (f); The Law of Property ,
Silberberg and Schoeman, 3rd ed p 263 -269]. The person who has detention of the
goods must attorn the new owner, in other words, the person who has detention
must agree to hold the property on behalf of the transferee. The unison of the
transferor and the transferee alone is not sufficient. The transferor must instruct the
person who has detention with th e concurrence of the transferee, and the person in
detention must with such concurrence agree to follow the instructions. Then and then
only is the delivery complete [ Caledon & SWD Eksekuteurskamer Bpk v Wentzel en
Andere [1972 (1) SA 270 (A) at 273A -C].

[14] I am unable to agree with the court of first instance that the appellant did not put
up any facts to refute ownership. The appellant pointed out that there was no
evidence of delivery of the goods to the respondents. The appellant argued that
delivery was required by South African law, for the transfer of ownership in movables
from SDG to the respondents. I am not persuaded that the facts set out by the
appellant as to the movements of the goods from international suppliers to the
appellant’s warehouse s, and the appellant specifically setting out that there was no
role and even mention of the respondents in the whole process, qualified as
opportunistic contentions. They were facts which excluded the possibility of the
requisite delivery required by Sout h African law to transfer ownership of movables.
The facts are countervailing evidence as regards the respondents’ alleged ownership.
These required ventilation through judicial processing before a determination on the
respondents’ ownership could be made. The question of disputed ownership was not
a matter which could be finally decided in favour of the respondents on the papers,
as the court of first instance did. The allegations in the answering affidavits of ALS
were sufficiently detailed to stand as an answer to an inference of ownership being
made.

[15] It seems that SDG claimed to have retained control of the stock and
acknowledged that the respondents at some stage, still to be proved, owned the
stock and SDG retained the stock on behalf of the res pondents ( constitutum
possessorium ) [Goldfinger’s Trustee v Whitelaw & Son 1917 AD 66 at 74]. This form
of transfer of ownership might be used to cloak the real nature of the transaction and
as a result there is no issue when it involves no prejudice to third parties. However in
instances like the present where there is potentia l prejudice to ALS, both SDG and
the respondents still had to establish bona fides [ Goldfinger p 74]. In circumstances
like the present where the rights of ALS are concerned, where this form of delivery is
established by intention alone, it must be closely scrutinized to guard against the
danger of legal fraud in such dealings [ Prinsloo v Venter 1964 (3) SA 626 (O) at 628 -
629]. In this case, against the background of the disputed transfer of ownership, the
court of first instance could not simply overlook t he danger and disregard its
obligations to ensure scrutiny of the constructive delivery suggested, with specific
regard to the prejudice to the detentor, ALS. It is not necessary, on the facts of this
case, to enter the debate as to whether the transfer ma y be susceptible to another
form of constructive delivery, whether as an extension of constitutum possessorium
or independent, referred to as cession of the right of vindication [ Barclays Western
Bank Ltd v Ernst [1988 (1) SA 243 (A) at 255A ; Page Automati on (Pty) Ltd v Profusa
CC t/a Homenet OR Tambo 2013 (4) SA 37 (GSJ) at para 16 to 29 . ALS did not only
hold the stock. It also had a lien over the stock and had a material interest in the
transfer of ownership. The transfer had serious implications for AL S, and such
transfer had to take into account such interest. SDG could not simply ignore ALS’ s
lien and constructively pass ownership to the respondents to the detriment of ALS.

Lien

[16] The contract between ALS and SDG, inter alia, afforded ALS a spe cial and
general lien and pledge over all goods either for monies due in respect of such
goods or for other monies due to ALS. The terms of the lien were already set out
earlier in this judgment. ALS alleged that SDG owed it a total of R28 160 413 -51
when SDG entered business rescue in October, and that in relation to goods
imported by SDG for the respondents, SDG was indebted to ALS for such freight
forwarding charges in a total of R19 717 827 -03 comprising of R8 507 111 -97 in
relation to goods which had a lready been released to R11 210 715 -06 including
storage charges calculated to the end of October in relation to goods still in ALS
possession and under its control. These amounts, comprising R19 717 827 -03 of the
R28 160 413 -51 referred specifically to go ods imported for sale by SDG to the
respondents, and excluded other customers of SDG for whom the same or similar
product was obtained.

[17] The lien, jus retentionis , was explained as follows in The Law of Agency in
South Africa , Silke, 3rd edition, p 263:

“It consists in a right to retain property whether immovable or movable, and
including money, which is in one’s possession, until once’s claim is satisfied. If
the right is to retain only again st satisfaction of claims for expenses or
liabilities incurred in respect of the particular property held, it corresponds to
what is called in English law a ‘particular lien’. If it is a right to retain property
against payment of claims not connected with that property, it corresponds to
the English ‘general lien’. Further, the right may exist as against the world (in
rem), or as against a particular individual and his contractual successors (in
personam).”

At p 265 it was said:
“It is quite clear that a ‘general right of retention’, when it exists, covers
payment of the general balance of account; but only the balance due in the
particular employment (ie a factor cannot retain against debts due to him in
some other capacity). And surely it must cover too release from, or indemnity
against, obligations and liabilities incurred in that employment - …
Though there appears to be no crisp statement to the effect that an agent as
such has no general lien, it is the irresistible inference to be drawn from the
fact that while some agents, notably the factor, do enjoy such a lien, others,
eg a forwarding agent, have only a special lien. Voet is, however, not
unambiguous, for he does not state in express terms that the goods entrusted
to the agent can only be retain ed by him in respect of money owing on those
particular goods.”

The lien agreed to between ALS and SDG provides expressly for a general and
special lien, which entitled ALS to retain property against payment of a general
balance of account and not limited to amounts owing in respect of the property held
only. The express agreement and ALS’ physical possession of the goods effectively
constituted and established the lien [ Vasco Dry Cleaners v Twycross 1979 (1) SA
603 (AD) at 611H]. ALS’ case was that the li en afforded it the protection of a right of
retention for the full amount of R19 717 827 -03 effective against all parties with the
sole exception of a true owner of the goods who was not bound by the terms of the
agreement creating a debtor/creditor lien a nd pledge. According to ALS, the value of
the commodity required in South Africa and having to be imported from China must
naturally include the costs of bringing the commodity to South Africa and the costs of
clearing the goods, including charges and duti es, which are generally described in
that business environment as ‘arrived sound market value’. All the useful and
necessary expenses in relation to the imported goods directly increased the ‘landed
value’ beyond the original purchase price in China. They provided protection in the
form of the lien and right of retention. ALS cleared the cargo, took physical delivery
and possession thereof from the shipping line and retained physical possession
thereof on the basis that SDG was the owner of the cargo. The p apers suggest that
the respondents were to be the ultimate recipient of the goods, and qualified to be
the consignee, and ultimately financially responsible for the receipt of the shipment.
The lien was applicable to the respondents [ LAWSA 2nd ed (3rd re-issue), para 293].

[18] The submission by ALS that the court of first instance, under the circumstances,
was in no position to make factual findings, on the amount of security in favour of the
respondents, was well founded. If the facts set out by ALS were proven, the effect of
the order of the court of first instance would be that ALS was deprived of its right of
retention conferred by the general and special lien without security for the R8 507
111-97 owed by SDG in respect of the goods already released. The amount
reflected in the order of the court of first instance meant that the security was limited
to the protection provided by the enrichment lien, and did not refer to the contractual
lien. The reduction is unexplained in the judgment, more so because according to
ALS, the reduction was a very significant deviation from what had been tendered in
the notice of application, which tender was in the following terms:

“5. That in the event that respondent may contend that it has a lien over the
material or any part thereof the applicants pay into the trust account of
respondent’s attorneys the amount claimed to be due and payable in respect
whereof respondent contends it holds such lien, to be held as security in place
of such lien before paragraphs 2 to 4 b ecome effective, subject to the
following:
5.1 the respondent shall institute action in respect of its lien within 21 calendar
days of the grant of this order; and
5.2 Failing which the amounts paid as security shall be immediately repaid to
the applicant’ s attorneys.”

Paragraphs 2 to 4 referred to in the tender related to prayers for making the goods
available for collection, delivery thereof to the respondents failing which the sheriff
was authorized to attach, remove and deliver the goods to the respond ents.

[19] The tender itself, made in the application, did not make any reference to the
amount of security. The amount claimed to be due and payable in respect of the lien,
was R19 717 827 -03. The parties had a dispute as to the amount of ALS’s claim
enforceable against the respondents based on the lien. In such circumstances,
justice demanded that the court exercises its discretion in favour of the provision of
suitable and adequate security for the payment of the lien claimant’s legitimate
expenses [ Avfin Industrial Finance (Pty) Ltd v Interject Maintenance (Pty) Ltd 1997
(1) SA 807 (TPD) at p 815A -C; Hochmetals Africa Ltd v Otavi Mining Co Ltd 1968 (1)
SA 571 (AD) at 581A, 582E -F]. The order of the court of first instance was not
sufficient to discharg e ALS’s lien. An action had to follow in order to determine the
respondents’ ownership and ALS’s legitimate expenses. In the face of a dispute a
court will not make an order which in another way diminishes the right to retention, to
be exact, by ordering t he giving of security for less than the amount of the detentor’s
claim [ Mancicsco & Sons CC (In liquidation) v Stone 2001 (1) SA 168 (WLD) at
175B -C.

[20] A lien should be met by a tender which is substantially adequate, not what a
court deemed fair [ Mancisco p 175G and 175C]. A court’s discretion must be
informed by fairness and practicality, bearing in mind that a lien, in circumstances
like the present, would have been an effective and cost -effective remedy which if the
court did not provide adequate s ecurity for, the court order will be depriving the
detentor thereof. Where the transferee established ownership, the approach was set
out as follows:

“A lienholder cannot simply insist on a guarantee for the full amount of its
claim. In deciding the adequ acy of a guarantee, the Court has to decide
whether the lienholder’s claim is prima facie excessive without resolving
factual disputes unless there are incontrovertible allegations. The court has to
weigh up he strength of the arguments advanced by the own er to challenge
the claim and arrive at what seems to be a realistic best -case scenario for the
lienholder.” [ Mancisco p 189B -C].
The order for the owner to get possession of the goods once adequate
security was given carried with it the basic truth that t he interests of neither
party will be harmed [ Mancisco p 182D].

As already indicated, it is not established on the papers in this matter that the
respondents were the owners of the goods which were in possession of ALS. There
was no agreement between th e respondents and ALS established on the papers,
and that lack of privity which existed meant that they had no contractual obligations
to one another, thereby eliminating liabilities and access to contractual rights. The
general and special lien of ALS was established. ALS had incurred expenditure on
the goods in pursuance of a contractual obligation existing between itself and SDG,
and ALS had a right of retention against SDG and a person in the position of the
respondents until it was compensated for its expenditure on that property [ Land Bank
v Mans 1933 CPD 16 at p 22; Naidoo v Sanbonani Express Freight and Another
2008 (5) SA 530 (D & CLD) para 11]. On the other hand, the ownership of the goods
was still to be established by the respondents.

[21] The respondents approached the court in urgent motion proceedings. The
approach to the dispute in relation to the amount of security to be provided should
have been guided by what was said in Wightman t/a JW Construction v Headfour
(Pty) Ltd and Anoth er 2008 (3) SA 371 (SCA) at para 12 where it was said:

“[12] Recognising that the truth almost always lied beyond mere linguistic
determination the courts have said that an applicant who seeks final relief on
motion must, in the event of the conflict, acc ept the version set up by his
opponent unless the latter’s allegations are, in the opinion of the court, not
such as to raise a real, genuine or bona fide dispute of fact or are so far -
fetched or clearly untenable that the court is justified in rejecting t hem merely
on the papers: Plascon -Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A) at 634E -635C. See also the analysis by Davis J in Ripoll -
Dausa v Middleton NO and Others 2005 (3) SA 141 (C) at 151A -153C with
which I respectfully agree.”

There was no legitimate basis to exercise a discretion and decide the amount of
security upon the assumption that the respondents’ account of the events was
substantially true and correct . Wightman also emphasised that the security put up to
recover possession must be satisfactory [para 31]. It was the respondents who
approached the courts for interim relief, and it is only natural that it be the
respondents who take the matter to its fina lity. The respondents cannot seek interim
relief, and once they have the court’s indulgence in hand, then expect the other party
to be the one to seek final relief, on the same dispute where they sought an interim
indulgence from the courts. I am unable to agree with the court of first instance on
who had to institute an action. The respondents cannot elevate the position provided
by the interim relief granted to them as final.

[22] The parties agreed that the goods were already released pursuant the order of
the court of first instance. The released goods meant that certain provisions of the
order were no longer material. A successful appeal means that the respondents will
be obliged to provide additional security. For these reasons I am persuaded that the
appeal should succeed.



DM THULARE
JUDGE OF TH E HIGH COURT

I agree

M PANGARKER
JUDGE OF THE HIGH COURT

I agree

G ELLIOTT
ACTING JUDGE OF THE HIGH COURT


Appearances

For applicant: Adv. SR Mullins SC
Instructed by: Ms H Teubes
For respondent: Adv. L Olivier
Instructed by: