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HIGH COURT

(BISHO)

CASE NO. 490/96

NKQUBELA FARMERS' CO-OPERATIVE FIRST APPLICANT

JACKSON MANTILE SECOND APPLICANT
versus

ELLIOT GONYA & 81 OTHERS

(Whose names appear in Annexure "A"

annexed hereto) FIRST TO 82ND RESPONDENTS

JUDGME NT

EBRAHIM, AJ: On 11 November 1996 the First and Second Applicants brought an urgent application and were granted a Rule Nisi against First to 82nd Respondents. The Respondents oppose confirmation of the Rule Nisi and on 12 December 1996, being the extended return date, the matter came before me for argument. After hearing counsel for the Applicants and Respondents I issued an order on 13 December 1996 in the following terms:

(a) Paragraphs numbered 2.1 to 2.8, set out on page 2 of First and Second Applicants' Notice of Motion, and which form part of the Rule Nisi issued on 11 November 1996 are hereby confirmed;

(b) The premises cited in paragraph 2.5 thereof does not incorporate the portion described as Unit 3 Dairy Parlour; and

(c) There will be no order as to costs.
The reasons for my decision now follow.

Summary of First and Second Applicants' founding facts:

The First Applicant is a co-operative consisting of a group of 39 farmers, who farm in the Keiskammahoek area, and the Second Applicant is the Chairman of First Applicant. The First to 82nd Respondents are residents of certain farms in and around Keiskammahoek. In 1990 the First Applicant was awarded various contracts to supply milk to a number of hospitals and schools in the then Ciskei. First Applicant was granted possession of a dairy factory by the former Ciskei Agriculture Corporation for the purpose of pasteurising milk, the storage thereof and the processing of milk products. In addition. First and Second Applicants were given possession of a storage place for cattle feed including the hall and offices at the Keiskammahoek Depot.

The First and Second Applicants aver that they have been wrongfully deprived of the exercise of their right to collect the milk from their factory and from the premises known as Unit 3 Dairy Parlour, Keiskammahoek Depot, Keiskammahoek. They have also been despoiled of possession of the cattle feed storage facility and the hall and offices situated there. Their right to the milk from the dairy parlour at

Unit 3 arises out of a contract entered into between First Applicant and the Ciskei Agricultural Corporation, as it then was. In consequence of their being deprived of their rights in this regard they have now approached this Court for an order restoring same.

First to 82nd Respondents' Reply:

The Respondents have placed in dispute the contractual right of First Applicant to collect milk from the dairy parlour but have conceded the right of the Applicants to possession of the storage facility and the hall and offices at the Keiskammahoek Depot. But, they do not admit that they have unlawfully deprived Applicants of their possession of the aforementioned premises. They assert further that the Applicants are still in possession of these premises and that Applicants' possession thereof has not been interfered with by Respondents. Consequently the Applicants are not entitled to the relief which they seek.

Issue to be determined:

Prior to the commencement of argument, and upon enquiry from the Court, it was conceded by counsel for the Applicants that the Applicants were in possession of the aforementioned premises and the question of restoration of possession thereof was no longer an issue in dispute. He conceded further that as the Applicants had not averred that they had been despoiled of the premises described as Unit 3 Dairy Parlour, such premises could not form part of any order granted by the Court. The only issue to be decided, therefore, was whether the Applicants were entitled to obtain a spoliation order in the respect of the alleged despoiling of their right to collect milk from the dairy parlour.

This was confirmed by counsel for the Respondents who did not dispute that the Respondents had deprived the Applicants of their right to collect the milk from Unit 3 Dairy Parlour. But, he has nevertheless contended that the spoliation order should be refused as the Applicants were seeking to have possession restored of an incorporeal right. Since the incorporeal right arises out of a contract, the validity whereof is in dispute, the Applicants have to convince the Court that they have a valid contractual right to collect the milk. In other words, if the validity of the contract in terms of which they acquired the right to collect milk is in dispute, they have to show on a balance of probabilities that they are entitled to exercise the contractual right.

Counsel for the Applicants, on the other hand, has contended that a contractual right is capable of enforcement by means of a spoliation order in the same manner as a real right. All that the Applicants are required to show is that they have been deprived of their right to collect the milk and not, in addition, that the contract in respect of which this right arises is still in existence. Once it is established on a balanceof probabilities, thatthe Applicants were prevented from collecting the milk they are entitled to an order restoring the status quo ante irrespective whether the validity of the contract is being disputed or not.

Mr Notsche has referred me to various authorities that support the view that a spoliation order may be granted in respect of an incorporeal right.

See Nienaber v Stuckey 1946 AD 1049 at 1056, Bon Quetta (Edms) Bpk v Munisipaiiteit van Otavi 1989 (1) SA 508A at 512E-H and Shoprite Checkers Ltd v Pangbourne Properties Ltd, 1994 (1) S A 616 (W) at 622E-H. I find myself in respectful agreement with these. Accordingly all that has to be asked is whether Applicants were deprived of their right to collect the milk. Of this there is no doubt as the Respondents have conceded that this is so.

There is no need, therefore, to consider whether the contract from which this right arose is still in existence or not and I express no opinion on its validity. This is not an enquiry that I am called upon to make in order to determine whether the Applicants are entitled to a spoliation order or not. The Respondents' may eventually show that they have a valid contract to collect the milk and that the Applicants do not, but that is an issue for determination in subsequent proceedings relating to the contract. See Bon Quella (supra) at 513E-J and 514A.

In the circumstances, since Applicants were manifestly despoiled of their right to collect the milk at Unit 3, Dairy Parlour, they are entitled to have this right restored to them. Similarly, they are entitled to restoration of their right to use the cattle feed facility and the other rights of which they have been despoiled.

As it is common cause that the Applicants are in possession of the premises referred to in paragraph 2.5 of the Notice of Motion, and it is conceded by the Respondents that the Applicants are entitled to possession thereof, there can be no prejudice to Respondents if the right of the Applicants in this regard is confirmed, subject to the premises described as Unit 3, Dairy Parlour being excluded from the order. But, since such order should in reality not have been sought as the Applicants are in possession of the affected premises, 1 am not persuaded that they are entitled to an order for costs. Nor, on the other hand, are Respondents entitled to costs in view of their partial spoliation of certain rights of the Applicants. In these circumstances, I am of the view that it would be fairest that neither party is awarded costs.

For these reasons I issued the order set out at the commencement of my judgment.

Y EBRAHIM

ACTING JUDGE OF THE HIGH COURT

(BISHO) Date: 26 February 1997

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