Elatfield (Pty) Ltd v Celtic Freight Logistics (Pty) Ltd (Hygienic Tissue Mills CC Intervening Party)

• Jurisdiction: South Africa
• Judge: NF Kgomo J
• Judgment Date: 06 May 2014
• Docket Number: 10198/2013
• Court: South Gauteng High Court, Johannesburg
• Hearing Date: 29 April 2014
• Citation: 2014 JDR 1017 (GSJ)

N F Kgomo, J:

INTRODUCTION

[1]

In the main application launched by the applicant during March 2013, the applicant sought an order directing the respondent to release to the

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applicant 30 tissue paper reels ("the tissues") allegedly owned by the Intervening Party, and which were at the time in the respondent's possession at its warehouse situated at 56 Rigger Road, Spartan, Kempton Park.

[2]

The tissues were delivered to the respondent by the applicant during January or February 2013 for the former to transport them or have them transported to a client of the Intervening Party in Harare, Zimbabwe. According to the applicant specifically, the goods were taken to the premises of the respondent solely for the purpose of them being transferred onto another vehicle owned by a freight-forwarding company going by the names of Trafalgar Logistics for transportation by the latter logistics company to Zimbabwe. [1]

[3]

Trafalgar Logistics had been engaged by the applicant to collect the tissue reels from the respondent's premises and transport them to Paper Company Holdings in Harare, Zimbabwe. Copies of the bill of lading or loading instruction provided to Trafalgar Logistics by the applicant as well as the Tax Invoice issued by the Intervening Party in respect of these tissue rolls are annexed to the founding affidavit in the main application. [2]

[4]

Towards the end of June 2013, specifically on 24 June 2013, the intervening party launched the application to intervene and related orders in the following terms or seeking the following orders:

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4.1

That Hygienic Tissue Mills CC (hereinafter referred to as the "Intervening Party") be and is hereby granted leave to intervene as an interested party in this application;

4.2

That it be declared that the respondent is not entitled to exercise any lien over the Intervening Party's thirty (30) tissue paper reels weighing 21 840 kg then in the respondent's possession at its warehouse situate at 56 Rigger Road, Spartan, Kempton Park or wherever same may be found;

4.3

That the respondent be and is hereby directed to forthwith return to the Intervening Party the 30 tissue paper reels;

4.4

That in the event that the respondent failed, alternatively refused, alternatively neglected to comply with the prayer set out in 4.3 above, the sheriff of this Court be directed, mandated and authorised to give effect thereto;

4.5

That the respondent be ordered to pay the costs of this intervention application; and

4.6

Further and/or alternative relief.

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[5]

When the respondent filed its answering affidavit on 2 July 2013 it emerged that the respondent had exercised "some sort of lien" over the property for the applicant's indebtedness to it and had even sold the tissue paper reels and vended the proceeds towards reducing such indebtedness to it by the applicant. [3] The date of sale is given as June 2013.

[6]

What is material is that when the Intervening Party launched its application, it was labouring under the impression that the tissue paper reels were still being kept or "held in lien" at the respondent's warehouse, which fact was part of the papers in the main application.

THE PARTIES

[7]

The Intervening Party, namely, Hygienic Tissue Mills CC, is a close corporation duly incorporated in terms of the Close Corporations Act, 1984 (Act 69 of 1984) (as amended) and it has its principal place of business given as or situate at 19 Cardiff Road, Willowtown, Pietermaritzburg, KwaZulu-Natal.

[8]

The applicant, ELATIFIELD (PTY) LTD is a limited liability company, duly registered and incorporated in accordance with the company laws of the Republic of South Africa ("RSA") with its registered office situate at 7 Daly Road, Marlands, Germiston, Ekurhuleni District, Gauteng Province. It also trades under the name and style of Sub-Sahara Freight.

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[9]

The respondent, CELTIC FREIGHT LOGISTICS (PTY) LTD is a limited liability company duly registered and incorporated in accordance with the company laws of the RSA, having its principal place of business situate at 56 Rigger Road, Spartan, Kempton Park, Ekurhuleni District, Gauteng Province.

ISSUES TO BE DECIDED

[10]

What is in issue here and to be decided by this Court is whether or not the tissue paper reels in question here are the property of or owned by the Intervening Party. If so, then whether or not a declarator sought by the Intervening Party that it so does should be issued. Furthermore, now that it is common cause that the respondent sold the tissue paper reels during June 2013, whether the respondent may be ordered to compensate the Intervening Party to the tune of the value thereof, as a naturalia of the above.

BRIEF HISTORY OF THE MATTER AND RELEVANT FACTUAL MATRIX

[11]

According to the Intervening Party, on or during January and/or February 2013 the Intervening Party engaged the services of the applicant to facilitate the transportation of 30 reels of tissue paper for delivery to the latter's clients in Harare, Zimbabwe. To facilitate the above the Intervening Party engaged the services of SSR Transport to transport the tissue paper reels from Pietermaritzburg to the applicant's business premises in Spartan, Kempton Park. The instructions from the Intervening Party as agreed with the

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applicant was that the tissue paper reels be loaded or transferred onto a truck arranged by the applicant for their transportation to Zimbabwe.

[12]

At all times the applicant remained the owner of the tissue paper reels.

[13]

As it transpired later, instead of the tissue paper reels being transported to Zimbabwe, they were detained and impounded by the respondent at its premises who claimed a lien over them for a debt owed to them by the applicant.

[14]

The applicant, through its Sub-Sahara Freight company, notified the Intervening Party about this aspect in an undated letter. [4] For completeness sake, this letter is quoted in its entirety. It reads as follows:

"Dear Ashraf

Referring [to] your Tax Invoice 108333

We hereby wish to confirm that we cannot execute delivery of your tissue jumbo rolls to your customer Paper Co Holdings (Pvt) Ltd, No. 20 Austin Road, Workington, Harare, Zimbabwe as it is being detained unlawfully at the premises of Celtic Freight and Logistics (Pty) Ltd, 56 Rigger Road, Spartan, Kempton Park. We used the premises of Celtic Freight and Logistics as a handling/storage facility before we trans-ship it to Zimbabwe destined vehicles. We have written to Celtic Freight informing them that these goods belong to Hygienic Tissue Mills and Paper Co Holdings and were in transit to Zimbabwe but they refuse to release these to us for onward transport to Zimbabwe. Attached you will find the Celtic Freight – Goods Received Voucher # GRVJ 150213/25428. [my underlining].

We keep in copy our attorney C Le Roux."

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[15]

An exchange of letters between the applicant's and respondent's attorneys during February 2013 which also relate to the ownership of the tissue paper reels followed. A goods received voucher issued by the respondent on 15 February 2013 acknowledges receipt at its premises of the 30 tissue paper reels as delivered to it by Sub-Sahara Freight (Pty) Ltd, the applicant's company.

[16]

In a letter dated 21 February 2013 written by the applicant's attorneys to the respondent's attorneys in response to the latter's letter dated 19 February 2013 [5] the respondents, who ostensibly were refusing to release the 30 toilet paper reels, are notified of the Intervening Party's ownership of the tissue paper reels. At paragraph 2.2(b) thereof the following is recorded:

"2.2(b)

Our client reiterates the terms of the freight and logistics agreement as set out in 1 above and furthermore denies that your client's standard terms and conditions of trade are applicable thereto. Even if these standard terms and conditions of trade are applicable then it is denied that the alleged 'lien' can be exercised against cargo belonging to a third party. Your client is currently alleging a lien in respect of the (good of ) Hygienic Tissue Mills Cargo which, to the knowledge of your client, does not belong to our client but to Paper Company Holdings (Pvt) Ltd in Zimbabwe …" (my underlining)

[17]

Representatives of the Intervening Party engaged with the applicant and even the respondent's people to prove ownership of the tissue paper rolls. They attended at the applicant's premises on 6 March 2013 and proceeded to the respondent's premises which are incidentally within the

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same erf or precinct. The respondent refused to release the tissue paper reels to the Intervening Party. A criminal case opened with the police was discontinued after the police were of the view that this was a civil matter.

[18]

On 22 March 2013 the applicant launched motion proceedings against the respondent and the ownership of the tissue paper rolls was specifically spelled out.

[19]

Prayer 1 thereof reads as follows:

"1. Directing the respondent to release to the applicant 30 tissue paper reels weighing 21 840 kilograms which are owned by Hygienic Tissue Mills CC and which are in the respondent's possession at its warehouse situate at 56 Rigger Road, Spartan, Kempton Park; …"

[20]

It should also be mentioned at this stage that this consignment of tissue paper was accompanied by an invoice or bill of lading addressed to Paper Co...