---

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION – GRAHAMSTOWN

Case number: 4071/2014

Date Heard: 19/02/2015

Date Delivered: 26/02/2015

In the matter between:

MOSSTRICH (PTY) LTD.................................................................................................APPLICANT

And

BIRCH SIDNEY BONNEN t/a LF BIRCH & SONS..................................................RESPONDENT

JUDGMENT

SMITH J:

[1] The applicant brought urgent proceedings for an order extending the period of thirty days during which it was allowed to remove ostriches from the respondent’s farm in terms of an order granted by Lowe J on 11 December 2014. The applicant contends, inter alia, that the implementation of that order was purposefully frustrated and delayed by the respondent.

[2] The applicant launched proceedings on 30 October 2014 for an interdict restraining the respondent from selling ostriches and an order allowing it to remove the mature ostriches from the respondent’s farm. When the respondent refused to provide an undertaking to the effect that he would not dispose of the ostriches pending the finalization of the main application, the applicant successfully applied for an interim order preventing him from doing so. An order to that effect was granted by Plasket J on 20 October 2014.

[3] The main application was argued before Lowe J on 30 October 2014, and he handed down judgment in favour of the applicant on 20 November 2014. In  addition to granting the main interdictory relief, he ordered the applicant to ”commence dispute resolution proceedings in terms of clause 17 of the agreement between the parties within ten days from the date of this order failing which the interim order shall lapse.”

[4] The respondent filed an application for leave to appeal Lowe J’s order. On 11 December 2014 Lowe J refused leave to appeal, and amended his initial order to the effect that the thirty day period would run from that date.

[5] The applicant’s endeavours to execute the order were, however, not very successful. On 17 December 2014 it had to abandon a scheduled removal because the sheriff was not available. It did eventually manage to remove some 200 ostriches, although the respondent had blocked off the entrance to his farm. The applicant also contends that it had been frustrated by the unavailability of certain key functionaries and services during the Christmas holiday period.

[6] The successful execution of the order by the deadline apparently presented quite a daunting challenge for the applicant. It had in effect been given 30 days to remove some 2301 ostriches. The birds had to be transported from the respondent’s farm, near Cookhouse, to Mossel Bay, and required about 90 trucks to carry out the task. In addition, the applicant was required to comply with regulations governing the protocols for transportation of the birds, and to obtain the necessary transportation permits from the relevant authorities. Another daunting problem which faced the applicant was the logistical problems of securing trucks during the holiday season.

[7] In addition, the respondent had also given clear indication, soon after the order was granted, that he would do everything in his power to frustrate its execution. On 13 December 2014 he sent an e-mail to the applicant claiming ownership of the ostriches and stated that:

“…it will be pointless you sending trucks to load the birds this coming week as you will not be allowed to move any birds due to the fact that ownership of the birds have undisputedly reverted to me ...”.

[8] The applicant was thus not able to remove the ostriches without the assistance of the sheriff and, the latter having been away on holiday; it was constrained to leave matters until January 2015.

[9] On 15 January 2015 the applicant proceeded to the respondent’s farm in the company of the sheriff. The respondent, having heard of the operation, parked a vehicle (of which the wheels had been removed) in front of the gate. The applicant, however, managed to gain access to the farm through an alternative entrance, and succeeded in removing some 200 ostriches.

[10] The applicant’s attempts to remove the remaining ostriches before the expiry of the 30 days period were further frustrated when one Biggs brought an application to interdict the execution of the order, and a litany of litigation, all of which appeared to have been aimed at delaying the removal of the ostriches, thereafter ensued.

[11] First, Biggs launched an application to interdict the execution of Lowe J’s order on the basis that that he had acquired ownership of the ostriches which were the subject of that order. The respondent in this matter attempted to intervene as a party in those proceedings as well. The interdict proceedings and the intervention application were argued before Plasket J on 22 January 2014, and on 30 January 2015 the learned judge handed down judgment dismissing both applications. The gist of Plasket J’s finding in that application was that Biggs could not have acquired ownership of the ostriches from Birch since ownership had never reverted to the latter.

[12] When the applicant launched this application on 4 February 2015, Biggs applied to be allowed to intervene, but that application was dismissed by Lowe J on 10 February 2015.

[13] Apart from irrelevant contentions regarding the correctness of certain aspects of Lowe J’s judgment, the respondent appears to oppose this application on the following bases:

(a) the applicant failed to commence arbitration proceedings within 10 days, and the order has thus lapsed;

(b) ownership of the ostriches had in fact reverted to him, because the disputes regarding the payment of invoices had been referred for arbitration, and he was accordingly entitled to place the applicant in mora; and

(c) he holds a lien over the ostriches which are the subject matter of Lowe J’s order.

[14] It is a well established principle of our law that once a court has pronounced its final judgment or order, it is functus officio. This rule can, however, be departed from where it is in the interest of justice, or there is a need to adapt the common law to meet modern exigencies.

[15] In West Rand Estates Ltd v New Zealand Insurance Co Ltd, 1926 (AD), 173, at 193, Innes CJ, in dealing with the time limit under which amendment of a court order was allowed under common law, commented that:

“Time and circumstances may bring about changes and development; and modern exigencies and conditions may well require the observance of a longer period of prescription”.

The court in that matter departed from the res judicata rule by invoking its inherent power to regulate its own process.

[16] In Zondi v MEC, Traditional and Local Government Affairs 2006 (3) 1 (CC), at para 39, the Constitutional Court held that the term “just and equitable”, mentioned in section 127(1) of the Constitution is, in the context of suspension of an order of invalidity, subject to variation:

“By its very nature an order that is “just and equitable” in the context of the suspension of a declaration of invalidity is subject to variation. This is so because the decision to suspend the declaration of invalidity, the determination of the period of suspension as well as the conditions to be attached to such suspension, are informed by the facts and circumstances that are at the disposal of the Court at the time the order is made. New facts may emerge or circumstances may change and render the period of suspension previously fixed to be unjust or inequitable.”

The same logic must self-evidently also apply where a time limit for compliance is stipulated in a court order.

[17] The following principles, although expounded by Ngcobo J within the context of the suspension of a declaration of invalidity, are in my view equally apposite and helpful in the present matter:

(a) in view of the principle of finality, the power to extend the period of suspension should, as general rule, be very sparingly exercised;

(b) the court must take into account the sufficiency of the explanation for failure to comply with the original period of suspension;

(c) the court must consider the potential for prejudice if the period of suspension is not extended; and

(d) the prospects of complying with the new deadline and the need to bring litigation to finality must also be considered.

(Zondi (Supra) at para 47)

[18] The objections advanced by the respondent to the extension of the time period mentioned in Lowe J’s judgment are, in my view, untenable. First, regarding its assertion that the judgment has lapsed because the applicant has failed to commence arbitration proceedings within the period of 10 days ordered by Lowe J: it is common cause that Adv. Rorke SC had in fact been appointed as arbitrator; had written letters to the parties on 15 December 2015 to that effect; had pertinently stated that those letters constituted commencement of the arbitration proceedings; and the arbitration is to be heard on 23 and 24 March 2015, well within the 10 day period.

[19] The respondent’s assertion in this regard is that the arbitration proceedings would only have commenced once there had been formulation and presentation of the statements of claim. In my view a reasonable interpretation of clause 5 of Lowe J’s order required the applicant only to refer the dispute for arbitration within the 10 day period. In terms of the arbitration agreement the arbitrator determines the procedure to be adopted, and the preparation and filing of statements of claim would thus be at his direction. I do not think that Lowe J could have intended that the lapsing of his order should be made conditional upon an event which lies beyond the control of the parties. The respondent’s assertion can accordingly not be upheld.

[20] Second, his contentions regarding the reversion of ownership of the ostriches and that he was consequently  entitled to sell them to a third party, had been argued before Justices Plasket and Lowe, and are now the subject matter of the pending arbitration before Adv. Rorke SC. This contention can therefore not have any relevance in the determination of the issue whether or not extension of the 30 day time period would be in the interests of justice.

[21] Third, the respondent’s attempt to thwart the execution of the order by relying on a lien is ill-advised and untenable. In my view it is not open to the respondent to rely on such a contractual right to resist the implementation of a court order that expressly authorises the removal of the ostriches.

[22] It must have been abundantly clear from my summary of the history of these and related proceedings, that the respondent had utilised every procedural stratagem to frustrate the execution of the order. It was furthermore not disputed that he has purposefully attempted to frustrate removal of the ostriches by blocking off the entrance to his farm, albeit in the misguided belief that the ownership of the ostriches had reverted to him. Mr De La Harpe, who appeared for the applicant, has in my view correctly submitted that the respondent should not be allowed to benefit from his successful attempts to frustrate the implementation of the order.

[23] It accordingly appears to me that the applicant’s attempts to execute the order had been hindered by circumstances which were largely beyond its control. In addition, it is clear that the respondent has, form the outset, been bent on utilizing every trick in the book to frustrate the applicant’s attempts to remove the ostriches. I am consequently persuaded, in the circumstances, that it is necessary to extend the deadline for the removal of the ostriches in order to do justice between the parties.

[24] In the result the following order issues:

(i) The period of 30 days provided for in paragraph 2 of the order handed down by Lowe J on 11 December 2014 in case number 4071/2014, is extended to run from the date of this order;

(ii) It is declared that the other terms of the order mentioned in the foregoing paragraph shall remain valid and enforceable as if the order of Lowe J were granted on the date of this order;

(iii) The respondent is ordered to pay the costs of this application.

_________________________

J.E SMITH

JUDGE OF THE HIGH COURT

Appearances

Counsel for the Applicant: Advocate De La Harpe

Attorneys for the Applicant: Neville Borman and Botha

22 Hill Street

Grahamstown

Ref: Mr Jagga/00S2/006

Respondent: Sidney Bonne Birch

Grahamstown

6140

Date Heard: 19 February 2015

Date Delivered : 26 February 2015

---