South West Co-Op Ltd v Transkei Development Corporation

• Jurisdiction: South Africa
• Judge: Madlanga, J
• Judgment Date: 27 March 1997
• Docket Number: 1074/96
• Court: Transkei High Court
• Hearing Date: 27 March 1997
• Citation: 1997 JDR 0760 (TkH)

Madlanga J:

It was, inter alia the fear of weevils infesting a consignment of about 14 tons of samp laden on its trailer that caused the applicant on 3 June, 1996 to approach this Court by way of urgency seeking an order that the respondent deliver to it its Nissan CK20 mechanical horse (1980 model) registered DYF 790 T, its LHL14 ton trailer (1971 model) registered DYF 749 T and the aforesaid consignment of samp. The applicant was also seeking certain ancillary relief. Though not versed in how, and after how long, weevils get to infest grain products, one wonders whether they had not already done so on 3 June, 1996 which was some 8 months from the date the respondent took possession of the mechanical horse, the trailer and on which the matter was argued before me, I suspect that weevils must have already set in and, not only that, must have been a few generations down in procreation and one wonders whether the applicant still seriously needs the consignment of samp which, on 3 June, 1996, it set out to recover.

In late October, 1995 (the date has not been specified but regard being had to the content of Annexure "TP 1" to the main founding affidavit, I can safely assume that the date was not before 25 and not later than 31 October, 1995) the applicant was in the process of removing its assets from premises owned by the respondent which it (the applicant) alleges were let by the respondent to a certain company called J & D Distributors (Pty) Ltd (hereafter "J & D Distributors") and in respect of which it (the applicant) was a sub-lessee. The respondent's representatives arrived at the premises

1997 JDR 0760 p2

Madlanga J

and advised the applicant's manager that the respondent had a lien over the goods and that such lien arose from the respondent's residual hypothec which the respondent had in respect of arrear rental owing to it. As a result, the respondent would not allow the applicant to remove the mechanical horse, the trailer and its load of samp. Thereafter considerably lengthy negotiations which came to naught ensued between the applicant and the respondent, both initially being represented in such negotiations by their employee representatives and later by lawyers. The applicant's contention is that it is entitled to the return of the mechanical horse, the trailer and consignment on the following basis: that it is the owner of the aforesaid items; that the items were on the leased premises for a very short time and not indefinitely and also not for the use of the lessee (J & D Distributors); that, as sub-lessee, the applicant had fulfilled all its rental obligations to the lessee. In response the respondent claims to have aright to retain :he aforesaid items in terms of its residual hypothec arising from rental owing to it in respect of the premises. The respondent, in its answering affidavit, has pleaded this right of retention in a rather inelegant and vague fashion. For example, in paragraph 6 at page 8 of the papers the deponent to the applicant's main founding affidavit says:

"The Respondent is presently in wrongful and unlawful possession of the aforesaid vehicles and consignment of samp. When the Applicant was in the process of moving its assets from the premises occupied by J & D Distributors (Pty) Ltd during late October 1995, the Respondent's representatives arrived and advised the Applicant's manager at the time, Mr BARNARD, that the Respondent had a lien over the goods concerned and that it would call for the assistance of the Transkei Police Service, if needs be, to ensure that its security was not destroyed. The stated intention for the aforegoing was to retain the vehicles as security in terms of the Respondent's residual hypothec which it purportedly had in respect of the payment of arrear rental by its lessee, Messrs J & D Distributors (Pty) Ltd."

1997 JDR 0760 p3

Madlanga J

The response to this is to be found in paragraph 24 at page 58 of the papers. There the deponent to the answering affidavit says:

"24.1.

I vehemently dispute that the respondent is in wrongful and unlawful possession of the goods which are the subject matter of this application and respectfully submit that the respondent has a tacit hypothec over the said goods in respect of arrear rental which Messrs J & D Distributors (Pty) Ltd and/or Westra Industries owe to the respondents in respect of their occupation of certain factory premises situate at No's 5, 6 and 7 Bruce Young Road, Zitulele Industrial Area in Butterworth.

24.2

I may interpose here to state that it was by chance that employees of the respondent discovered that the said Messrs J & D Distributors (Pty) Ltd and/ or Westra Industries were intending to secretly vacate the leased premises aforesaid together with all invecta et illata and had they been successful in doing so they would certainly have defeated the respondent's tacit hypothec over the invecta et illata at the leased premises which included the goods which are the subject matter of this application.

24.3

It was therefore made perfectly clear to a representative of Messrs J & D Distributors (Pty) Ltd and Westra Industries that they had no right to remove the invecta et illata over which Respondent had a tacit hypothec as long as there was arrear rental owing in respect of the leased premises. In the course of discussion it so happen (sic) that an agreement was reached in terms whereof the goods which are the subject matter of this application were left in the custody, possession and control of the respondent as a measure of protecting the interests of the respondent in so far as it concerned the arrear rental amount owed to the respondent."

1997 JDR 0760 p4

Madlanga J

The nebulous phrase "J & D Distributors (Pty) Ltd and / or Westra Industries" used by the respondent recurs quite a number of times throughout its answering affidavit. From the above-quoted response one is unable to say whether the respondent is contending that:

(a)

there is direct contractual privity between itself (as lessor) and the applicant (as lessee);

(b)

the applicant is indeed a sub-lessee and that as such it has not fulfilled all its rental obligations to the lessee;

(c)

the applicant and J & D Distributors were joint lessees who were liable to pay rental to the applicant jointly and severally, the one paying the other to be absolved;

(d)

the respondent is retaining the items in terms of an agreement entered into between itself and the applicant subsequent to the respondent's taking possession of the items, the terms of such agreement being that the applicant would only be entitled to the release of the items after payment of the arrear rental;

(e)

J & D Distributors and the applicant are liable jointly and severally or in the alternative.

Further, one is left in the dark as to:

(a)

how exactly the liability of each of the two (J & D Distributors and the applicant) arises;

(b)

whether the respondent is resorting to the use of "and/or" because it is not sure as to where liability lies.

Despite such vagueness in the respondent's answer to the applicant's case, what comes out clearly is that the respondent strongly contests the applicant's entitlement to the release of the vehicles and consignment of samp. I wish to point out, as will be demonstrated later, that the applicant is also guilty of some degree of vagueness

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Madlanga J

if not ambiguity in its assertions and the picture that one is left with in the end is one of confusion, general vagueness and contradiction. Incidentally, Westra Industries referred to above is the trade name or "besigheidseenheid" of the applicant.

Mr Dugmore, for the applicant, argued that this is basically a vindicatory action in which all that the applicant need do is to allege and prove ownership of the items in issue and possession thereof by the respondent. He submitted that the applicant need allege and prove no more and in support of this argument reference was made to Harms, Amler's Precedents of Pleadings, fourth edition pp 322-3. The leading case on this is Chetty vs Naidoo 1978 (3) SA 13 (A) in which the court held at 20 B-C:

"[One of the incidents of ownership] is the right of exclusive possession of the res, with the necessary corollary that the owner may claim his property wherever found, from whomsoever holding it. It is inherent in the nature of ownership that possession of the res should normally be with the owner, and it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner (e.g. a right of retention or a contractual right). The owner, in instituting a reivindicatio need, therefore, do no more than allege and prove that he is the owner and that the defendant is holding the res - the onus being on the defendant to allege and establish any right to continue to hold against the owner (cf. Jeena vs Minister of Lands 1955 (2) SA 380 (A.D) at pp. 382E,383)."

However, for an owner to rely on the law as stated in the above quotation insofar as onus is concerned, he/she/it should have alleged only ownership by himself/herself/itself and possession by the adversary. However, he /she/it can still escape without attracting any onus even if more has been alleged but that is so only if, on the particular facts of the case, the further matter alleged can be regarded as mere surplusage. In Karim vs Baccus 1946 NPD 721 at 726 it was held:

1997 JDR 0760 p6

Madlanga J

"When a plaintiff is the owner of land and is seeking to recover possession he is free to choose his cause of action, and when, having made his choice, he pleads that he is the owner, that he let the land and the lease is at an end, he has placed on record that he parted with...