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FREE STATE HIGH COURT, BLOEMFONTEIN

REPUBLIC OF SOUTH AFRICA

Case No.: 4973/2014

In the matter between:

MARIUS HERSELMAN                                                       First Applicant

DENEYS SWISS DAIRY and		Second Applicant
TSIU VINCENT MATSEPE N.O. ELRICH RUWAYNE SMITH N.O. SHERIFF, FRANKFORT		First Respondent Second Respondent Third Respondent
CORAM:                          HEFER, AJ
JUDGMENT:                   HEFER, AJ
HEARD ON:                    22 SEPTEMBER 2017 DELIVERED ON:             2 NOVEMBER 2017

[1] This is an application for leave to appeal against the judgment of Ebrahim J delivered on 12 February 2015.

[2] Salient facts common cause:

It is common cause that after the sequestration of one Jacobus Nicolaas Herselmann, not a party to this application, First and Second Respondents were appointed as his trustees.

[3] After the said sequestration First and Second Respondents applied for a warrant in terms of Section 69(3) of the Insolvency Act, 24 of 1936, which was issued on 6 March 2014.

[4] The warrant to search and take into possession in terms of the aforesaid order was handed to the Third Respondent who  executed same on the same day by attaching inter alia most of the sheep which is the subject matter of the present application. Third Respondent included them on an inventory drafted on the same day.

[5] First and Second Respondents apparently at that stage did not give any instructions to the Third Respondent to remove any of the items attached where they were found after his search but only directed that the sheep should be kept in a specific camp on the farm Sandfontein, district Frankfort. To leave the sheep  on  the farm Sandfontein was therefore at the free choice of the trustees  as they at that stage, when the writ in terms of Section 69(3) was executed by the Third Respondent, could have instructed him to move them to another place.

[6] The farm Sandfontein is the property of the First Applicant who conducted a dairy farm business on the farm together with the Second Applicant. It can be accepted that at all relevant times the First and Second Applicants were in possession and control of the farm Sandfontein.

[7] First and Second Respondents specifically ordered that the sheep had to be kept in a certain enclosure on the farm and that the insolvent and any other person were not to remove or deal with the sheep.

[8] During September 2014, the Applicants instituted action against the First and Second Respondents for expenses which the Applicant allegedly incurred in regards to the management and feeding of the sheep, when the care of the sheep was, as alleged by the Applicants, taken over by the Applicants. During August 2014, the First and Second Respondents were further informed by the Applicants of Applicants' lien over such sheep until the amount as claimed by the Applicants in regards to such expenses, was paid and settled by the First and Second Respondents in their capacities as trustees of the insolvent estate.

[9] The Applicants then launched an application in terms of which the Applicants sought an order in terms of which a mandament of spolie order be granted for return of the 1 529 sheep removed from the farm Sandfontein, district Frankfort. The Applicants further moved for an order in terms of which Respondents were to pay the costs de bonis propriis.

[10] In terms of Ebrahim J's judgment, it was held that the Applicants have failed to show:

(a)   that they were in possession of the sheep; and

(b)   that they were unlawfully deprived of that possession.

Accordingly the application was dismissed with costs.

[11] It is to be mentioned that the Respondents denied the fact that the Applicants indeed incurred expenses in regards to the care of the sheep as alleged by the Applicants. The Respondents further contended that when Third Respondent executed the warrant which was issued in terms of Section 69(3) and (4) of the Insolvency Act, such sheep were handed to the trustees' representative on 6 March 2014. The trustees therefore took possession and control over the sheep. According to the Respondents, the trustees exercised this position de facto by appointing security guards and caretakers to take care of the sheep. The main contention of the Respondents in this regard was that since March 2014 when the Third Respondent attached the sheep, up until October 2014, when the sheep were removed by the Third Respondent, such sheep were solely under the care of the appointed security guards and employees of the representatives who acted on behalf of the trustees. The Respondents further contended that in view of the fact that the warrant authorised the Sheriff to attach and hand over the sheep to the trustees, the trustees were therefore also authorised to remove it from the farm. According to the Respondents, removal of the sheep was necessitated due to the fact that the trustees experienced difficulties in properly exercising control over the sheep because First Applicant not only intimidated the security guards and caretakers appointed by the trustees, but also disposed of some of the sheep without the consent and knowledge of he trustees.

[12] Grounds for leave to appeal:

The Applicants now seek leave to appeal to "the High Court of Appeal of South Africa" against the whole of the judgment and order delivered by Ebrahim J on the following grounds:

(a)        The Honourable Judge erred by not finding that at the time of the alleged spoliation took place, the Applicants were in physical possession and control of the sheep;

(b)        The Honourable Judge erred by not properly making a distinction between possession naturalis, what the Applicants claimed to have, and possession civilis, what the possession was that the trustees acquired by execution of the warrant in terms of Section 69(3) of the Insolvency Act;

(c)        The Honourable Judge erred by not finding that at the time of the alleged spoliation the Applicants had the necessary amimus possidendi as far as the sheep is concerned;

(d)        The Honourable Judge erred by not rejecting Respondents' contradictory and distinctive false version and accepting the Applicants' version that they  acted  as negotiorum  gestors of the sheep by caring  for them during  March 2014  to August 2014;

(e)        The Honourable Judge erred by not properly applying the legal principles applicable to negotiorum gestors to the fact of the matter, more specifically by not finding that Applicants had established an lien over the sheep;

(f)         The Honourable Judge erred by apparent acceptance of the incorrect argument of the Respondents that the Applicants relinquished the lien after spoliation by the institution of the enrichment claim while in fact the claim was instituted before spoliation;

(g)       The Honourable Judge erred by not distinguishing between the circumstances where the Applicants acted as negotiorum gestors after date of sequestration and after the trustees obtained possession civilis over the sheep as to the possession before sequestration;

(h)       The Honourable Judge erred by finding that Section 47 of the Insolvency Act is also applicable after date of sequestration;

(i)          The Honourable Judge erred by finding that the Rule 69(3) order obtained and fully executed on 6 March 2014 can again be utilized for removal of the sheep on 21 October 2014;  and

o) The Honourable Judge erred by  finding  that  Respondents had any justification legal or otherwise to remove the sheep on 21 October 2014 without a valid Court order and writ.

[13] During his argument, Mr. Marais on behalf of the Applicants, dealt extensively with the question whether the Applicant were indeed in possession at the stage when it were removed by the First and Second Respondents. He referred me in this regard to the matter of Santam Insurance Ltd v Devi 1994 (3) SA 763 TPD where at 767 the following was stated with reference to Brooklyn House Furniture (Pty) Ltd v Knoetze and Sons 1970 (3) SA 264 A:

"'n Retensiereg kom slegs tot stand en duur slegs voort indien die retentor besit van die saak verkry en behou... Daadwerklike fisieke beheer, soos die wat vereis word vir besitsverkryging deur toe-eiening, moet uitgeoefen word."

[14] It is common cause that the warrant of attachment which was issued during March 2014 authorised the Third Respondent to "search for and take possession of' the assets of the insolvent J N Herselmann.

[15] According to Respondents, the Third Respondent executed the warrant on 6 March 2014 and inter alia attached 1 700 sheep  at the farm Sandfontein. After such attachment of the sheep, the Sheriff handed it to the representative of the trustees'.  At  that stage Chari Thompson from C & D Thompson Auctioneers was appointed to take care of the sheep on behalf of the trustees. In reply, the Applicants state that they were never informed that Mr. Thompson was appointed to take care of the sheep at that stage. What is  important is that according to the Applicants  themselves, the Mr. Thompson referred to did in fact hire some security guards sitting at the entrance gate of the farm to monitor the people on the farm apparently from removing the sheep or other assets.

[16] In a letter by Applicants' attorneys dated 17 September 2014, reference is again made to these security guards and there is indeed an insistence on behalf of the Applicants that capable security guards/employees be employed who can properly monitor the control of such sheep. What is quite insightful is that the Applicants' version as set out in their founding affidavit is actually not in accordance with what is stated in the replying affidavit. In the founding affidavit we  find  the following ;

"He also failed to take any steps to keep the other movable property in save custody; The First Applicant also kept the other movable property attached in safe custody and storage;".

[17] No reference is made in the Applicants' founding affidavit to the security guards which, as stated, is conceded in the Applicants' replying affidavit. In reply the Applicants state in regards to the security guards:

“Except for their presence they never exercised control over the sheep and never cared for them."

[18] In reply, we also find the inexplicable following statement by the Applicant, namely:

"All that Mr. Thompson did was to hire some security guards sitting at the  entrance  gate  to  the  farm  to  monitor  the  people  on  the  farm apparently from removing the sheep and/or other assets. This is. however, very far from control of the sheep and caring for them." (my emphasis)

[19] It may be accepted that because of the animals being ill- treated at some stage, the Applicants did indeed in fact take care of such animals because of the condition they were in. However, in view of all the facts pertaining to the security guards which were appointed by Mr. Thomson, being the representatives of the First and Second Respondents, at all relevant times being from March 2014 up until the removal of such sheep from the farm, First and Second Respondents never lost control and possession of such sheep for the period March 2014 to October 2014. The fact that Applicants may have cared for such animals at some stage on the farm of the First Applicant, did not provide Applicants with the necessary undisturbed possession as contended by the Applicants.

[20] Applicants approached the Court for a mandament of spolie order. In view of the prerequisite of possession referred to in Santam Insurance Ltd v Devi (supra), the Applicants never had possession of such sheep for purposes of a mandament of spolie. In view thereof it is not necessary to consider the other grounds of appeal as  raised by  the  Applicants. Therefore there is no reasonable prospect of success  in  regards to appeal. The application should therefore fail.

Therefore the following order is made:

ORDER:

The application for leave to appeal against the judgment of Ebrahim J dated 12 February 2015 is dismissed with costs.

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J.J.F. HEFER, AJ

On behalf of the Applicants:           Mr. H W Marais

                                                            H W Smith and Marais Attorneys

                                                            VEREENIGING;

On behalf of the Respondent:         Adv. A JR  van Rhyn SC

                                                            Instructed by Matsepes Incorporated

                                                            BLOEMFONTEIN.

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