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[2010] ZAECGHC 3
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Global Engineering UK Ltd and Another v Wallace (3984/2009) [2010] ZAECGHC 3 (5 February 2010)
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FORM A
FILING SHEET FOR EASTERN CAPE JUDGMENT
Motion Court Judgment
Global Engineering UK Limited
Mark Denson
vs
Joachin Willem Wallace
CASE NUMBER: 3984/2009
DATE ARGUED: 4 February 2010
DATE DELIVERED: 5 Februarie 2010
JUDGE(S): Pickering J,
LEGAL REPRESENTATIVES:
Appearances:
for the State/Applicant(s)/Appellant(s): Adv. Kincaid
for the Accused/Respondent(s): Adv. Meyer
Instructing attorneys:
Applicant(s)/Appellant(s): N.N. Dullabh, Ms. Bosman
Respondent(s): Nolte and Smit Attorneys, Mrs. Amm
CASE INFORMATION:
Nature of proceedings :
Topic:
Keywords:
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, GRAHAMSTOWN)
CASE NO: 3984/2009
In the matter between
GLOBAL ENGINEERING UK LIMITED First Applicant
MARK DENSON Second Applicant
And
JOACHIM WILLEM WALLACE Respondent
JUDGMENT
PICKERING J:
This is the return day of a Rule Nisi issued by Kroon J on 29 November 2009 in the following terms:
“1.1 that the Respondent return to the Applicant’s possession the motor vessel previously known as Shane and more fully described as an 11 meter Sportfisher Buttcat with 2 x 250v Evinrud E-Tec’s outboard motors;
1.2 that the Respondent return to Applicant’s possession, the following equipment:
1.2.1 tiagra rod and reel combination;
1.2.2 2 x tixtrtrl 80b rod and reel combination;
1.2.3 5 x tixtrstp 50/80 rod and reel combination;
1.2.4 a stand up fishing harness;
1.2.5 an assortment of sinking, dropshot, cavitator and pulsator lures approximating 40 in number;
1.2.6 an assortment of jigs approximating 13 in number;
1.2.7 2 x fishing tackleboxes;
1.2.8 2 x fishing tackleboxes;
1.2.9 fishing fillet knives, scissors and pliers;
1.2.10 3 x fishing buckets/harnesses.
1.3 that he pay the costs of this application.
2. That the order in paragraphs (1.1) and (1.2) will operate as an interim interdict with immediate effect.”
According to applicants the respondents failed to comply with the order and, accordingly, on 10 December 2009, an application for respondent to be declared in contempt of court was launched. This application, which was heard by Sandi J on 18 December 2009, resulted in respondent being found guilty of contempt of court and sentenced to a suspended term of imprisonment. The learned Judge refused leave to appeal against his order. I am advised that a petition by respondent to the President of the Supreme Court of Appeal for the requisite leave to appeal is pending. Fortunately, this is not an issue with which I am concerned. Suffice to say that neither the boat nor the equipment referred to in the order has as yet been restored to the possession of applicants. Respondent avers that the order does not require him to do so.
First applicant is a private company duly incorporated in terms of the company laws of England. Second applicant is a director and shareholder in the first applicant. Second applicant avers that during 2008 he became interested in the ski boat named Shane, as described in the Court order of 20 November 2009, which was being advertised for sale by A&G Marine, a boat building and repair business in Port Alfred. This business, so second applicant says, was “owned primarily” by one Andrew Reynolds. Second applicant accordingly entered into negotiations for the purchase of the boat with one Leendert van Kempen who was employed by A&G Marine as a salesman. Van Kempen advised second applicant that the boat belonged to respondent and that A&G Marine held instructions as respondent’s agent to sell it on respondent’s behalf. The negotiations bore fruit and the offer of the applicants to purchase the boat for the sum of R800 000,00 was accepted by A&G Marine on respondent’s behalf. In this regard second applicant annexes an invoice dated 7 July 2009 emanating from A&G Marine containing a full description of the boat, its equipment and contents as well as stipulating the purchase price of R800 000,00. Second applicant states that he thereafter returned to the United Kingdom where he made arrangements for the payment of the purchase price. He annexes the relevant payment debit advices issued by the Royal Bank of Scotland and by Halifax Bank.
He states that he returned to Port Alfred during June or July 2009 in order to take delivery of the boat for which payment had by then been effected in full. He met van Kempen and Andrew Reynolds. He states that he took delivery of the boat on behalf of the first applicant from van Kempen and Reynolds. Delivery, so he says, was “effected by handing me the keys to ‘Shane’ and directing me to where it was moored alongside the jetty of Les Johnson at no 4 Sea Glades Road in the Marina.”
Second applicant states further that during the course of his visit he purchased the equipment referred to in paragraph 1.2 of the Court order at a cost of R167 413,95.
During his visit he used the boat for a number of fishing trips. Before his return to the United Kingdom in late July he instructed van Kempen to attend to the repair of the front hatch, to service the boat, and to procure and fit a “fighting chair” to the boat. He also instructed van Kempen to remove the fishing equipment and put it in storage. He established later that van Kempen had neglected to remove the equipment from the boat. He also appointed van Kempen as his agent in respect of the chartering of the boat. On his departure he left the boat moored alongside the jetty of the aforementioned Les Johnson, one of the few jetties in the marina capable of securing that size boat. He also left the keys of the boat with van Kempen to enable him to attend to the necessary repairs and chartering of the boat.
He states that during November 2009 he received a telephone call from one Mike Kenny advising him that respondent had removed the boat from its mooring and was claiming ownership in respect thereof. He accordingly instructed Kenny to lay a charge of theft against respondent. He states that his purpose in bringing the present application is solely to secure the return of possession of the boat in terms of a mandament van spolie.
In a supporting affidavit Michael Kenny states that he was present when second applicant negotiated the purchase of the boat with van Kempen and that van Kempen advised them that A&G Marine had been instructed by respondent to sell the boat for the sum of R800 000,00. He confirms too that when second applicant returned to South Africa during June or July 2009 delivery of the boat to the applicants was effected. During this visit second applicant frequently utilised the boat.
He confirms further that when second applicant departed South Africa he gave instructions to van Kempen to attend to the repair of the front hatch and to equip the boat with a “fighting chair.”
He states that he received information on 10 November 2009 that respondent had taken possession of the boat from its mooring alongside Johnson’s jetty in the marina. Second applicant asked him to lay a criminal charge against respondent, which he did.
Leendert van Kempen states in his affidavit that he was, at the relevant time, in the employ of A&G Marine as a salesman. He states that he has personal knowledge, by reason of his position as a salesman, of a mandate given by the respondent to A&G Marine to sell the boat. In return, utilising the proceeds of the sale of the boat as payment, A&G Marine would build respondent a new boat with smaller specifications. This mandate, so he says, was given during early 2008. In a later affidavit, filed in reply, he states that he was wrong with regard to the date and concedes that the boat was only brought to Port Alfred in October 2008.
He confirms that following upon second applicant’s interest in acquiring the boat it was sold to him at a price of R800 000,00. He alleges that respondent was told that the purchase price for the boat would be paid in three instalments and agreed thereto. It was agreed that the boat which second applicant then owned would be traded in at a price of R420 000,00 with the balance of the purchase price to be paid by applicants and that A&G Marine would build respondent a smaller boat. It was never part of the agreement that the full purchase price of R800 000,00 would be paid over to respondent by A&G Marine, the agreement being that the purchase price would be utilised towards the building of the respondent’s smaller boat.
Van Kempen confirms that the full purchase price for the boat was paid by June 2009. Second applicant wanted delivery of the boat to coincide with the visit he intended making during June or July to Port Alfred. Accordingly van Kempen, together with Andrew Reynolds, ensured that the boat, which was moored at Les Johnson’s jetty, was ready for delivery by that time. When applicant arrived delivery of the boat was effected by the handing over to second applicant of the keys of the boat. Van Kempen confirms further that second applicant utilised the boat during July on a number of occasions. He confirms too that second applicant had instructed A&G Marine to procure the fishing equipment which is reflected in paragraph 1.2 of the order. On second applicant’s return to the United Kingdom he appointed van Kempen as his agent to market and manage the charter of the boat in particular over the end of the year season. Second applicant left the boat’s keys with van Kempen and instructed him to attend to the repair of the front hatch and to procure and fit a “fighting chair” to the boat. Van Kempen kept the keys at his home.
Van Kempen states that on 3 November 2009 A&G Marine ceased to trade. Respondent, together with several other customers, never received the boats ordered and paid for by them.
In his affidavit respondent deals at exhaustive length with the issue of ownership of the boat. In a nutshell, he contends that A&G Marine were not his agents, had no mandate whatsoever to sell the boat, and that if it or its employees purported to do so they were acting fraudulently and, in all probability, in collusion with the applicants.
Respondent states that he brought the boat back from Cape Town to Port Alfred during October 2008. He commissioned A&G Marine to carry out certain repair work on the boat. At the time he expressed an interest to Andrew Reynolds in having a new boat built and in selling Shane. Eventually, on 21 July 2009, he entered into an agreement with Reynolds to the effect that A&G Marine would build him a new boat and that once that boat was completed Shane would be “swopped” therefore. He annexes a quotation dated 21 July 2009 from A&G Marine in this regard. He denies therefore that applicants purchased Shane. He states that Shane was moored at all times alongside Johnson’s jetty which he assumed was a mooring place used by A&G Marine by arrangement with Johnson. He states that applicants had no right to control of the mooring place and that the boat remained in possession of A&G Marine who had possession thereof in order to repair it. It was not in possession of the applicants.
When respondent heard rumours of A&G Marine’s imminent liquidation he immediately took steps to safeguard his interests and to remove the boat from the possession of A&G Marine. He attempted unsuccessfully to contact Reynolds. On 9 November 2009 he collected his spare key for the boat and proceeded to the marina to fetch it. Whilst there Reynolds contacted him and stated that he had no objection to respondent cancelling the agreement and removing the boat.
On 10 November 2009 he heard that Reynolds had been murdered.
He states that Johnson has since advised him that his jetty may no longer be used to moor the boat. Respondent therefore undertakes to moor the boat at his property in the marina. As to the equipment on the boat he states that he will arrange for the police to take possession thereof. He states that he is doing no more than preserving the boat, which is his property. He therefore seeks an order that the Rule Nisi be discharged.
Much was made in argument by respondent’s counsel, Mr. Meyer, concerning the nature of the order issued by Kroon J and, in particular, whether it was prohibitory or mandatory in effect. In his judgment dealing with the contempt application Sandi J dealt with this issue and concluded that the order was clearly mandatory in nature. I agree fully with his reasoning. In my view, the submission that what was granted was in fact a prohibitory interdict, prohibiting respondent from disposing of the boat and equipment pending the return day of the Rule Nisi is devoid of merit. The order issued by Kroon J is clear and unambiguous. In terms thereof respondent is ordered to restore possession of the boat and its equipment to applicants forthwith, pending the return day of the Rule Nisi. The interdict referred to in paragraph 2 is clearly a mandatory interdict and not a prohibitory interdict, requiring as it does respondent to perform the positive acts set out in paragraphs 1.1 and 1.2 thereof and thereby to remedy the wrongful state of affairs for which he is responsible. It cannot, in my view, on any reasonable interpretation thereof, be construed as being a prohibitory interdict. It is surprising, in my view, that any counsel, much less an apparently experienced counsel such as Mr. Meyer, could labour under any misapprehension as to the true nature of the application and the order which was granted. Because of this fundamental misapprehension by respondent and his legal representatives as to the nature of the application and the order paragraph 2 of the Court order has not only been flouted but the papers before the Court have been turned into what Schutz JA once categorised as being a “papery sump” of irrelevant and obfuscatory material in which the irrelevant issue of ownership has been emotively explored by respondent at exhaustive length. In this regard the following is stated in Mr. Meyer’s heads of argument:
“It is evident from the applicants’ application that they attempt to enforce a contractual right and an alleged duty to transfer of ownership to them from A&G.”
And
“The applicants extends (sic) their application expressly into the contractual issues and has laid no basis in fact or in law regarding the jurisdiction of the Court.”
It is, contrary to these submissions, quite clear on a proper reading of the papers that the application has nothing whatsoever to do with the enforcement of contractual rights and the transfer of ownership. Such allegations as are made by the applicants concerning their contractual rights and ownership of the boat are made in order to place in context the manner in which the boat came to be in their possession.
Mr. Meyer also raised what he termed as being a “constitutional objection.” This is couched in the following terms in counsel’s heads of argument:
“(a) The applicants have breached the constitutional rights of the respondent in serious respects, taking their conduct and of the purpose and scope of spoliation proceedings that had been formulated as follows in Nino Bonino v De Lange 1906 TS 120 at 122: ‘the Court will summarily restore the status quo ante and will do that as a preliminary to any inquiry or investigation into the merits of the dispute.’
(b) The applicants attempted to secure an interdict, and blatantly breached the respondent’s rights in attempting to enforce the interdict.
(c) These proceedings fall outside the ambit of spoliation proceedings and has compromised it irreparably.” (sic)
I regret to have to state that I do not understand this submission or the basis on which it is advanced. I can do no more than to reiterate that the present application is clearly for nothing else but a spoliation order.
Mr. Meyer submitted further as follows:
“The application is inherently vague, contradictory and excipiable. The evidence especially van Kempen’s, fail to disclose the details of a cause of action based on contract or mandate as provided for in terms of Rule 18, and is inherently contradictory.”
Rule 18 deals with the rules relating to pleading generally. It has nothing to do with the present matter. In any event, as stated above, the application is concerned solely with an alleged spoliation and nothing else. It contains no inherent contradictions whatsoever.
The principles applicable to the remedy of the mandament van spolie, and hence to the present matter, are clear.
In Barnard v Carl Greaves Brokers (Pty) Ltd and two other cases [2007] ZAWCHC 2; 2008 (3) SA 663 (C) the following is stated at 685 – 686:
“The mandament van spolie is a possessory remedy. It is used to restore possession to an applicant that has been despoiled of property or the use of property. It is most frequently used to restore the status ante quo spoliation so that due process must be followed to establish which of the protagonists has the legal right to possession of the thing in contention. It is a restraint against inappropriate self-help. It is not a remedy available to someone who seeks to obtain initial possession of property, or to take back property to which they contend they are entitled from someone with established possession of it.”
See too Boompret Investments (Pty) Ltd and Another v Paardekraal Concession Store (Pty) Ltd 1990 (1) SA 347 (A) where at 353A-F, van Heerden JA said the following:
“The other possessory remedies of Roman-Dutch Law – notably the mandament van maintenue and the mandament van compainte – have, of course, fallen into disuse and in South African law the mandament van spolie has become the most important such remedy. It can be brought if the claimant has been unlawfully deprived of the possession of a thing. It does not avail the spoliator to assert that he is entitled to be in possession by virtue of, eg, ownership, and that the claimant has no title thereto. This is so because the philosophy underlying the law of spoliation is that no man should be allowed to take the law into his own hands, and that conduct conducive to a breach of the peace should be discouraged.”
As was stated in Nienaber v Stuckey 1946 AD 1049 at 1053 the onus is on the applicants to establish:
“not only a prima facie case, but he must prove the facts necessary to justify a final order – that is, that the things alleged to have been spoliated were in his possession and that they were removed from his possession forcibly or wrongfully or against his consent.”
In Bennett Pringle (Pty) Ltd v Adelaide Municipality 1977 (1) SA 230 (E) Addleson J stated as follows at 233G-H:
“In terms of all the authorities cited, the ‘possession’, in order to be protected by a spoliatory remedy, must still consist of the animus – the ‘intention of securing some benefit to’ the possessor; and of detentio, namely the ‘holding’ itself … If one has regard to the purpose of this possessory remedy, namely to prevent persons taking the law into their own hands, it is my view that a spoliation order is available at least to any person who is (a) making physical use of the property to the extent that he derives a benefit from such use; (b) intends by such use to secure that benefit to himself; and (c) is deprived of such use and benefit by a third person.”
It is clear, in my view, having regard to the authorities cited above, that on the averments set out in the applicants papers they obtained possession of the boat when it was delivered to them during July 2009. Mr. Meyer submitted, however, that in the event of it being found that applicants’ cause of action was indeed one of spoliation there was in any event a dispute of fact which could not be resolved on the papers as to whether applicants did obtain possession of the boat as alleged by them and whether they were still in possession at the time the boat was removed from its mooring by respondent. He submitted that it was clear that respondent was at all times in fact in possession of the boat through his agent, A&G Marine, and that Reynolds had consented to him lawfully removing the boat. Further indications of the fact that he was in possession were, inter alia, the fact that respondent still had possession of the spare keys to the boat; that respondent was still the owner thereof as he had not received payment; that the boat was moored at Johnson’s jetty to which only Reynolds had been allowed access; and that respondent had entered into an agreement with Reynolds on 21 July 2009 as to the building of a new boat and the sale of Shane as evidenced by the quotation. He submits therefore that applicants could not have purchased the boat at the date alleged by them and that their allegations in this regard are false.
In my view, the alleged dispute of fact as to the possession of the boat by applicants is more apparent than real. In this regard second applicant has made positive averments as to how delivery of the boat into applicants’ possession was effected. Those are not only supported by both Kenny and van Kempen but also receive material corroboration from the documentary evidence relating to the invoice issued by A&G Marine on 7 July 2009 and the various payment advices. Respondent’s reply to all these allegations amount to no more than a bare denial. He avers that if second applicant, Kenny and van Kempen did in fact act in the manner alleged by them then they were acting collusively, fraudulently and without any mandate from him. All this, however, is irrelevant for purposes of the present application. It will no doubt become relevant should other litigation concerning the legal right to ownership of the boat be instituted in due course but that is not an issue before me.
I am satisfied on the papers before me that applicants have discharged the onus of proving that they were given possession of the boat in the circumstances alleged by them and that they were still in possession thereof at the time it was removed without their consent by respondent. They are therefore entitled to the relief contained in the order of Kroon J.
Mr. Meyer submitted, however, as he had done before Sandi J, that it was impossible for respondent to comply with the order inasmuch as Johnson had withdrawn his consent to the use of his jetty. There is, in my view, no merit in this submission. The order does not require respondent to restore possession of the boat at Johnson’s jetty. It merely requires that the possession thereof be restored to the applicants. Mr. Kincaid, who appeared for the applicants, stated that applicants were prepared to accept delivery of the boat and its equipment at the premises of Kemsley Marine, in the Small Boat Harbour, Port Alfred. I accordingly intend to incorporate this in the order which I will grant hereunder.
I should mention that Mr. Meyer submitted further that applicants were peregrini and that, should the boat be restored to their possession, they could remove it at any time from South Africa. If respondent entertains a reasonable apprehension that this might occur then it is obviously open to him to apply for the appropriate relief. I would add, however, that it would appear inevitable that action will have to be instituted by one or other of the parties in order to determine the legal right to ownership of the boat. It is to be trusted, that in such case the parties will come to some agreement concerning the disposal of the boat pending any such action without the necessity of yet further applications to court.
In all the circumstances the Rule Nisi issued by Kroon J on 29 November 2009 must be confirmed. In the light of what has transpired previously I intend, however, to set out in full the terms of the order so as to obviate any possible misunderstanding in respect thereof.
The following order will issue:
1. The respondent is ordered to return to the applicants’ possession the motor vessel previously known as Shane and more fully described as an 11 meter Sportfisher Buttcat with 2 x 250v Evinrud E-Tec’s outboard motors;
2. The respondent is ordered to return to the applicants’ possession the following equipment
2.1 tiagra rod and reel combination;
2.2 2 x tixtrtrl 80b rod and reel combination;
2.3 5 x tixtrstp 50/80 rod and reel combination;
2.4 a stand up fishing harness;
2.5 an assortment of sinking, dropshot, cavitator and pulsator lures approximating 40 in number;
2.6 an assortment of jigs approximating 13 in number;
2.7 2 x fishing tackleboxes;
2.8 2 x fishing tackleboxes;
2.9 fishing fillet knives, scissors and pliers;
2.10 3 x fishing buckets/harnesses.
3. The motor vessel and equipment is to be returned to applicants’ possession by delivering it to applicants’ appointed agent, Michael Keeny, at Kemsley Marine, Small Boat Harbour, Port Alfred.
4. Such delivery is to be effected by 16h00 on Wednesday 10 February 2010.
5. Respondent is ordered to pay the costs of this application.
_______________
J.D. PICKERING
JUDGE OF THE HIGH COURT
Date heard: 4 February 2010
Date delivered: 5 February 2010
Counsel for applicants: Adv. Kincaid
Instructed by N.N. Dullabh Attorneys, Mr. Wolmarans
Counsel for respondent: Adv. Meyer
Instructed by Nolte Smit Attorneys, Mrs. Amm