K2017427913 South Africa (Pty) Ltd v Du Plessis

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Djaje DJP, Mfenyana J and Reddy AJ
• Judgment Date: 03 August 2023
• Citation: 2023 JDR 2926 (NWM)
• Hearing Date: 09 June 2023
• Docket Number: CIV APP FB 24/2022
• Court: North West Division, Mahikeng

Djaje DJP, Mfenyana J and Reddy AJ:

[1]

This is an appeal against the whole judgment of Snyman J on spoliatory relief whether the requirements of spoliation had been satisfied by the respondent. The court a quo found that there was spoliation and ordered as follows:

“i)

The non-compliance with the forms, method of service provided for in the Uniform Rules of Court is condoned and the matter is heard as one of urgency in terms of Rule 6(12) of the Uniform Rules of Court;

ii)

The Respondent is ordered to immediately deliver, or cause to be delivered, the item listed below to the Applicant at his address at 18 Ash Crescent, Wavecrest, Jeffrey’s Bay, Eastern Cape;

iii.i)

Hino Profia Special Vehicle which bears vehicle register number DWC204S and Vehicle Identification Number (VIN) AHHFS1ELP00010086 with engine number E13CTN10165; and

iii.ii)

Doosan Compressor and trailer which was unlawfully removed from 18 Studebaker Road, Markam, Port Elizabeth, Eastern Cape, on Friday 17 September 2021.

2023 JDR 2926 p3

Djaje DJP, Mfenyana J and Reddy AJ

iv)

In the event of the Respondent failing to deliver the property forthwith, that the Sheriff, or his nominee, be authorized and directed to take possession of the property and to deliver same to the Applicant;

v)

In the event that the Respondent unlawfully and without good reason refuses the Sheriff access to the premises at which the property is located, that the Sheriff be permitted to enlist the assistance of the South African Police Services and a locksmith, the cost of which will be costs in the execution for the Respondent’s account;

vi)

That the Respondent is ordered to pay the costs of this application, which include the transportation or haulage of the property back to the Applicant, to be taxed on an attorney and client scale.

vii)

The costs of the application is to be costs in the winding-up of the respondent.”

[2]

The facts in this matter can be summarized as follows: The appellant and the respondent concluded a written purchase and sale agreement for the following properties: Hino Profia Special Vehicle (“the rig”) which bears vehicle register number DWC204S and a Doosan Compressor (“the compressor”). As there was a dispute over payment by the respondent, the appellant requested the respondent to bring the properties for inspection at a specified address. Before the property was brought for inspection, the respondent was in peaceful and undisturbed possession. The respondent had been assured that the rig and compressor would not leave the premises where the inspection was to take place.

[3]

The respondent ensured that the rig and compressor were delivered for inspection as requested. On arrival at the premises

2023 JDR 2926 p4

Djaje DJP, Mfenyana J and Reddy AJ

as agreed with the appellant, the respondent remained with the properties and there were no technicians to inspect the rig and compressor. There was a security company that arrived at the premises to guard the rig and compressor. The respondent and his attorney were then requested to leave the premises. At 17h25, the respondent and his attorney left. Notably, it was observed that representatives of the appellant were in the immediate vicinity of the premises where the rig and compressor were left, behaving in a peculiar fashion.

[4]

The respondent in the main application alleges that there was an act of spoliation by the appellant as follows:

“THE ACT OF DESPOLIATION

[18]

At 23:19 on Friday 17.09.2021, the rig’s ignition was switched on. Shortly thereafter, the rig began to move.

[19]

On the discovery that the rig was moving, I immediately contacted my attorney. My attorney wrote an email on Saturday morning 18.09.2021 at 04:09 and addressed it to attorney Van der Veen and attorney Erlank. A true copy of the email is attached hereto and marked Annexure “G3”.

[20]

I reported the rig and compressor as being stolen and alerted Tracker. Tracker and the police managed to stop the rig at around 04:00 just outside Cradock. I am advised by the police at Cradock that the rig was not roadworthy; that the compressor and trailer didn’t have papers, VIN and chassis numbers and data-plates. Members of the SAPS impounded both the rig and the compressor.

[21]

However, on Sunday 19.09.2021, I was advised by the warrant officer that in fact the rig and compressor were released back to the Respondent. I cannot understand how the compressor was released

2023 JDR 2926 p5

Djaje DJP, Mfenyana J and Reddy AJ

back to the Respondent by members of SAPS, especially since proof of ownership cannot be proven by the Respondent. The compressor and trailer is Doosan model. However, the certificate of registration to the compressor, which I presume was provided to members of SAPS, reflects the compressor as being an Atlas model. A true copy of the proof of registration is attached hereto and marked Annexure “G4”.

[22]

It is my respectful submission that the Respondent unlawfully deprived me of possession of both the rig and compressor by means of trickery and chicanery.”

[5]

As a result the respondent brought an urgent application for spoliation against the appellant and the order as stated above was granted. When the urgent application was served on the appellant, they elected not to file an answering affidavit and only served a notice in terms of Rule 6(5)(d)(iii) of the Uniform Rules of Court.

[6]

The appellant now appeals the decision of the court a quo and raised the following grounds of appeal:

Grounds of Appeal

1.

The Court a quo erred by finding that the points in limine raised by the Appellant relating to possession and deprivation of possession could not be raised in terms of the said Rule under circumstances where:

1.1

the Appellant, being faced by an incomplete cause of action, could raise incomplete cause of action as a question of law in terms in terms of Rule 6 (5)(d)(iii);

1.2

lack of possession and deprivation of possession ex facie the founding papers, being elements of the cause of action in a

2023 JDR 2926 p6

Djaje DJP, Mfenyana J and Reddy AJ

spoliation application, could accordingly be raised as a question of law of Rule 6(5)(d)(iii);

1.3

the notice delivered by the Appellant clearly referred to its notice of its intention to raise certain questions of law alternatively points in limine, the latter not being confined to questions of law, but including questions on fact which could be determined solely with reference to the allegations made by the Respondent in his founding papers, and more specifically whether he had made out a case for spoliatory relief on the basis of the allegations made by him.

2.

The Court a quo erred by finding that the Respondent did have undisturbed possession of the property before he was spoliated. The Court a quo failed to enquire whether the effective physical control over or possession of the property had not been lost by the Respondent when he left the property on the premises, which enquiry was necessary in order to determine whether the Respondent had indeed been spoilated. Had the Court a quo enquired into this aspect it would and should have found that the Respondent, on his own version, had lost effective physical control over, or possession of the property at the material stage, which control or possession was a requirement for spoliatory relief to be granted to him. The Appellant’s point in limine in this regard should accordingly have been upheld by the Court a quo.

3.

The Court a quo erred by finding that the Respondent’s possession of the property had been disturbed by the Appellant. The Court a quo failed to appreciate that there was no factual allegation in the Respondent’s founding papers to the effect that the Appellant removed the...