Pinzon Traders 8 (Pty) Ltd v Clublink (Pty) Ltd and Another

• Jurisdiction: South Africa
• Judge: Jones J
• Judgment Date: 29 June 2009
• Citation: 2010 (1) SA 506 (ECG)
• Docket Number: 2354/2009
• Hearing Date: 25 June 2009
• Counsel: EAS Ford SC (with DH de la Harpe) for the applicant. MJ Lowe for the first respondent. No appearance for the second respondent.
• Court: Eastern Cape Division

Pinzon Traders 8 (Pty) Ltd v Clublink (Pty) Ltd and Another
2010 (1) SA 506 (ECG)

2010 (1) SA p506

Citation	2010 (1) SA 506 (ECG)
Case No	2354/2009
Court	Eastern Cape High Court, Grahamstown
Judge	Jones J
Heard	June 25, 2009
Judgment	June 29, 2009
Counsel	EAS Ford SC (with DH de la Harpe) for the applicant.; MJ Lowe for the first respondent.; No appearance for the second respondent.

Flynote : Sleutelwoorde B

Spoliation — Mandament van spolie — Possession — Restriction of access to property — Whether amounting to spoliation — Ability of possessor to conduct its business strangled by restriction of access to premises — Whether C requirements for spoliation order proved.

Headnote : Kopnota

The applicant, a supermarket operator, had leased premises in a shopping mall from the first respondent and had operated its supermarket business there. The written lease and addendum thereto made provision for future large- scale extensions of and renovations to the supermarket premises to meet the D applicant's requirements, which included new butchery, bakery and delicatessen sections with the necessary refrigeration and cold rooms adjacent to them, as well as an additional loading bay in close proximity to the new refrigeration rooms and the butchery, access to which was to be gained from Allen Street in Grahamstown. The loading bay was designed for use by the supermarket. It was the applicant's intention to use this loading area inter E alia to receive meat deliveries conveyed in 8-ton refrigeration trucks capable of conveying bulk frozen carcases, and trucks capable of delivering considerable quantities of flour, as much as 5000 kg or more at a time, to the bakery. The Allen Street parking area was also used by tenants of offices built at the same time as the supermarket's extensions. These tenants complained to the first respondent about inconvenience to them and their F clients caused by deliveries made via the Allen Street loading bay. Correspondence and meetings between the first respondent and the applicant ensued to resolve the matter, but without success. Eventually the first respondent built walls across each side of the entrance to the Allen Street parking area which had the effect of permitting only light delivery vehicles of 2 tons or less into the parking area and loading bay. The applicant then G brought urgent proceedings on notice of motion for a spoliation order requiring the respondent to remove the walls at the entrance to the Allen Street parking area. The applicant also sought alternative relief. In opposing the application the first respondent contended that the applicant's use of and access to the loading bay is not an incident of its possession of the supermarket, but was an entirely separate contractual right which cannot be H enforced by a spoliation order.

Held, that the applicant's use of the loading bays and the access to the loading bays were so closely connected with its use and possession of the rest of the supermarket that the inference was irresistible that it was part and parcel of that possession. Use of and access to the loading bay were no different from use of and access to the refrigeration rooms, the butchery and those sections I of the supermarket where the meat is displayed to customers. They were all possessed by the applicant. (Paragraph [6] at 511A - C.)

Held, further, that the loading bay was the only loading bay in the parking lot. It was specially designated for the supermarket, and the supermarket alone. It was used specifically as part of the supermarket premises, which it unquestionably possessed. Access to the loading bays from their entrances J was an essential ingredient of the applicant's possession of the supermarket,

2010 (1) SA p507

without which it could not conduct its business, and it could only have been A part of that possession. (Paragraph [7] at 511G/H - I.)

Held, further, that the element of access could patently not be severed from possession: access to the Allen Street loading bay through the parking lot and its entrance was inextricably and inseparably connected with possession of the loading bay and the premises of the supermarket beyond it. (Paragraph [7] at 511I - J.) B

Held, further, that the applicant had discharged the onus of proving the existence of the requirements for a spoliation order. The relief in the notice of motion ordering the removal of the walls must be granted. (Paragraph [9] at 512G - H.)

Cases Considered

Annotations C

Reported cases

ATM Solutions (Pty) Ltd v Olkru Handelaars CC and Another2008 (2) SA 345 (C): applied

Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi1989 (1) SA 508 (A): applied

De Beer v Zimbali Estate Management Association (Pty) Ltd and Another D 2007 (3) SA 254 (N): distinguished

Firstrand Ltd t/a Rand Merchant Bank and Another v Scholtz NO and Others2008 (2) SA 503 (SCA) ([2007] 1 All SA 436): dictum at 509 applied

LF Boshoff Investments (Pty) Ltd v Cape Town Municipality; Cape Town Municipality v LF Boshoff Investments (Pty) Ltd1969 (2) SA 256 (C): referred to E

Nienaber v Stuckey1946 AD 1049: compared and applied

Nino Bonino v De Lange 1906 TS 120: applied

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd1984 (3) SA 623 (A): applied

Shoprite Checkers Ltd v Pangbourne Properties Ltd1994 (1) SA 616 (W): distinguished F

Simon NO v Air Operations of Europe AB and Others1999 (1) SA 217 (SCA) ([1998] 4 All SA 573): referred to

Telkom SA Ltd v Xsinet (Pty) Ltd2003 (5) SA 309 (SCA): applied.

Case Information

Application for a mandament van spolie. The facts appear from the reasons for judgment. G

EAS Ford SC (with DH de la Harpe) for the applicant.

MJ Lowe for the first respondent.

No appearance for the second respondent.

Cur adv vult. H

Postea (June 29).

Judgment

Jones J:

[1] The first respondent is the developer and owner of an upmarket I shopping complex in Grahamstown known as Peppergrove Mall. Its anchor tenant is the applicant, which operates a large supermarket at Peppergrove Mall under the Pick 'n Pay franchise. The contractual relationship between the parties is governed by a written agreement of lease and a written addendum to it which were both dated 23 September 2003. These documents were in replacement of an original lease dated J

2010 (1) SA p508

Jones J

A 14 July 1997. The lease and, in particular, the addendum, were preparatory to and made provision for future large-scale extensions of and renovations to the supermarket premises to meet Pick 'n Pay's requirements. These renovations were completed in October 2007. They included new butchery, bakery and delicatessen sections with the B necessary refrigeration and cold rooms adjacent to them. They also included an additional loading bay in close proximity to the new refrigeration rooms and the butchery, access to which was to be gained from Allen Street on the western side of the shopping centre. This loading bay was designed for use by the supermarket. It was part of a new C parking area, access to which was gained by a 5,4 metre wide entrance off Allen Street. It was the applicant's intention to use this loading area inter alia to receive meat deliveries conveyed in 8-ton refrigeration trucks capable of conveying bulk frozen carcases, and trucks capable of delivering considerable quantities of flour - as much as 5000 kg or more at a time - to the bakery. There had been no loading bay dedicated for D use by the supermarket in that part of the shopping complex...