IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GQEBERHA)
CASE NO: 2025-120339
In the matter between
Q AND Q TRANSPORT (PTY) LTD Applicant
and
EDAN TRADERS (PTY) LTD Respondent
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REASONS FOR ORDER
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KRüGER AJ:
[1] The applicant instituted a spoliation application against the respondent on an
urgent bas is on 21 July 2025, stipulating abridged timelines for the exchange of
papers in its notice of motion.
[2] The matter was set down for 29 July 2025. The respondent, among other
things, contested the urgency of the application. After hearing arguments on the
issue of urgency, I struck the matter off the roll for lack of urgency and made a costs
order in favour of the respondent as requested. In what follows, I set out the reasons
that order.
[3] In Mangala v Mangala,1 Munnik J held that
‘It is true that a spoliation order is a remedy which in the nature of things
should be a speedy one, but the fact that there has to be restitution before all
else simply means that, once an applicant has proved that he was in peaceful
possession and his possessi on was disturbed, the respondent must restore
that position before entering into the merits of the ownership or otherwise of
the subject matter. It does not follow that, because an application is one for a
spoliation order, the matter automatically becomes one of urgency. The
applicant must either comply with the Rules in the normal way or make out a
case for urgency in accordance with the provision of Rule 6(12)(b).’
[4] It was therefore incumbent on the applicant to set out the basis for the
urgency of the a pplication clearly in its founding papers, and to demonstrate that it
would not otherwise be afforded substantial redress at a hearing in due course.2
[5] The nub of the applicant’s case for the urgency of its spoliation application
was that the respondent ’s unlawful possession of its truck placed the applicant’s
contact with MSC Logistics (Pty) Ltd at risk. The applicant explained that it requires
the truck to fulfil its contractual obligations to MSC, and that MSC threatened to
cancel its contract with the applicant.
[6] The applicant acknowledged that it handed the truck to the respondent for
repairs on 9 February 2025. In its view, that date could not be considered pivotal for
purposes of the determination of urgency as it had to allow time to the respo ndent to
repair the truck. Furthermore, the applicant tried to resolve the matter without
turning to court in the first instance, 3 by calling the respondent and by approaching
the Ombudsman for the Motor Industry. Thus, it argued, its urgency was not sel f-
created.
1 1967 (2) SA 415 (E) 416E-F.
2 Luna Meubel Vervaardigers (Edms) Bpk v Makin (T/A Makin’s Furniture Manufacturers ) 1977 (4) SA
135 (W) at 137F; AG v DG 2017 (2) SA 409 (GJ) at 412A.
3 Mr Rubela placed reliance on South African Informal Traders Forum v City of Johannesburg 2014
(4) SA 371 (CC) paras 38-37.
[7] The respondent’s case was that the applicant failed to provide a clear basis
for urgency in its founding affidavit, given that the applicant’s departure from the
rules and their timeframes was significant. The applicant had known since 9
February 2025 that its truck was in possession of the respondent. The applicant’s
timeline setting out the engagement between the parties lacked specific dates, and
little detail of exchanges between the parties was provided. The applicant stated, for
example, that his calls were ignored, but failed to state when the respondent started
to do this and for how long this happened.
[8] The respondent’s submissions were on point. On the applicant’s own version,
it last fulfilled its contractual obligations to MSC in June 2024. It gained knowledge
that its contract with MSC was at risk at least in May 2025, when it was informed by
Mr Sizwe Ngudle, a MSC cartage controller, that MSC was considering terminating
its agreement with the applicant. It is unclear when in Ma y 2025 this exchange took
place and what steps the applicant then took. While the applicant indicated that
there were several exchanges between itself and the respondent about the return of
the truck prior to its court application, details of the dates on which these exchanges
took place were not provided.
[9] What is clear from the founding papers is that the applicant handed the truck
to the respondent on 9 February 2025. Thereafter, it allowed ‘a few weeks’ for
repairs to be made, and that ‘at some poin t’, the applicant’s deponent’s calls were
ignored. It is unclear when these events took place in relation to the applicant
approaching the court.
[10] The applicant did not take the court into its confidence. Based on the scant
information provided, it was not possible to assess whether the applicant’s degree of
deviation from the rules was justified by the facts of the matter. The application fell
short of that which Rule 6(12)(b) requires.
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short of that which Rule 6(12)(b) requires.
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R Krüger AJ
Acting Judge of the High Court of South Africa
4 August 2025
Appearances:
For the applicant: Adv S Rubela
Instructed by: AS Pata Attorneys, Mthatha c/o Ntanzi
Attorneys, Gqeberha
For the respondent: Adv J Prinsloo
Instructed by: TF Kruger Incorporated, Roodepoort c/o
Eugene Raymond, Gqeberha