---

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION. BLOEMFONTEIN

Case number: 2778/2020

In the matter between:

BOTES AUTO CC                                                                                                   Applicant

and

BARARAGE AUTO SALES (CC)                                                                  1^st Respondent

GORGINA FLORENCE SWANEPOEL                                                        2^nd Respondent

ERIK LIEBENBERG                                                                                     3^rd Respondent

 

JUDGMENT BY: MHLAMBI J,

HEARD ON: 13 AUGUST 2020

DELIEVERED ON: 17 AUGUST 2020

 

MHLAMBI, J

[1] The applicant approached the court on an urgent basis for an order based on the mandement van spolie in the following terms:

1.1 That this application be enrolled and heard as a semi urgent application, that the applicant's non-compliance with the times for service and forms prescribed in the Uniform Rules of Court be condoned and that the Rules as to notice and service as set out in Uniform Rule 6(5)(b) be dispensed with;

1.2 That the first, second and third respondents and/or other persons acting through or for the first respondent as agents, employees and/or servants of the first respondent be and are hereby directed to forthwith restore the applicant's possession of the immovable property situated at 104-108 Church Street, Bloemfontein;

1.3 In the event of the first, second and third respondents failing, alternatively, refusing to comply with the order set out in paragraph 2, supra, within 7 (seven) days from date of this order, the sheriff of this court be and is hereby authorised to give immediate effect to the order set out in paragraph 2 supra;

1.4 That the first respondent pay the costs of this application, save in the event that the application is opposed by any further respondent(s), in which event such respondent(s) shall pay the costs jointly and severally with the first respondent);

1.5 Further and/ or alternative relief.

[2] The application is opposed.

[3] The sole member of the applicant, a closed corporation, is Matthys Andries Botes (known as Andre). During 2017, while Andre was employed by Tritice Auto (Pty) Ltd (Tritice Auto), which conducted business in the sale of second hand vehicles in Bloemfontein from the premises situated at 204-208 Church Street, the applicant conducted business with Tritice Auto by sourcing and purchasing vehicles for and on behalf of Tritice Auto on the same premises.[1]

[4] Louis Frederik Botes, the deponent to the founding affidavit, with residential address at […], Faerie Glen, Pretoria[2] was Andre Botes' cousin. He had been involved in the motor vehicle trade industry well in excess of 20 years. During 2017, he was a director and 50% shareholder of Tritice Auto[3].

[5] The first respondent, a retailer in second hand vehicles with physical address at 1 Barrage Road, Vereeniging, Gauteng Province, was owned by the second respondent, Georgina Florence Swanepoel (Swanepoel), resident at […], Oranjeville, Vereeniging, Gauteng Province. During November 2018, both the second respondent (Swanepoel) and Louis Botes entered into a written consignment agreement in terms of which the latter would market and sell the applicant's vehicles on Tritice1 s Auto showroom floor in return for the payment of R 5 000.00 per vehicle[4]. The location where the consigned items would be kept was at 204-208 Church Street Bloemfontein.[5] Either party had the right to terminate the agreement by giving prior written notice of termination to the other of not less than 30 days. Upon termination of the agreement, the consignee had to return the consigned items. alternatively, the invoiced price of all products not returned to the consignor.[6]

[6] In pursuance of the agreement, Louis Botes left the employ of Tritice Auto. On 01 March 2019, he commenced with the sale of vehicles from 204-208 Church street, Bloemfontein, the previous business address of Tritice Auto under the name Barrage Auto Sales. All the employees of Tritice Auto save for Andre, were retrenched and all were re-employed by Barrage during March 2019[7] He concluded a verbal agreement with the applicant in terms of which the applicant would source vehicles to be placed in stock for and on behalf of Barrage, to be sold as part of the Barrage stock and the applicant would be remunerated and entitled to payment in the amount of R 5 000.00 per vehicle sold. This was an exploitation of the applicant's substantial network of suppliers of vehicles which it had built over a period[8].

[7] Business did not turn out as expected and matters came to a head. During May 2020, the second respondent was not satisfied with the annual financial figures of the business and a meeting was convened at the respondents' attorneys' office at Sasolburg. During the meeting, Louis Botes was accused of financial mismanagement, fraud and theft while Andre was accused of fraud and theft. Unless an amount of R 4 000 000.00 was paid to the second respondent, a state prosecutor would be instructed to arrest and charge them both.[9]

[8] On 17 June 2020, the Bloemfontein and the Pretoria branches (the latter branch was also started by Louis Botes) were closed and kept under lock and key by the second and third respondents with the co-operation of Andre and Louis. The branches would have been closed until 24 June 2020 to enable an audit of the business[10]. The business premises were still locked as at 24 June 2020. On 03 July 2020, the respondents caused all movable assets to be removed from the premises. On 22 July 2020 some of the movable assets were returned to the Bloemfontein Branch and Barrage started trading on the premises situated at 204-208 Church Street, Bloemfontein[11]. The applicant and Louis Botes did not have access to or possession of the Bloemfontein branch since 24 July 2020[12]. Louis Botes concluded a lease agreement with the Xavier Motors Trust on behalf of the applicant on February 2019 for a three-year period for the premises situated at 208-204 Church Street, Bloemfontein.

[9] It is the applicants case that the respondents' actions of taking control of the Bloemfontein and Pretoria branches, constituted an illicit deprivation of possession which was done against its will in a wrongful manner, without resort to a legal process. The respondent's conduct amounted to self-help. The applicant was therefore spoliated and the status quo ante stood to be restored.

[10] In their opposition, the respondents contended that the applicant, as a closed corporation, was not in possession of the property at the relevant time. The applicant could not be deprived of its possession of the business premises as these were owned and were currently in the possession of the owner, Xavier Motors Trust as evidenced by the affidavit of one Robert David Wiggett, a trustee of the said Trust[13]. In his affidavit, Wiggett stated that he received the keys to the premises that were rented by Botes Auto on 07 July 2020 from the second respondent, whereupon he informed Andre Botes of his possession of the keys and enquired whether they wished to continue with the rental agreement[14]. It was then agreed that due to circumstances, the rental agreement should be cancelled with effect from 30 June 2020. They met on several occasions to allow Mr Botes access to the premises to remove his personal belongings and assisted him to sublet other premises from 1 August 2020 at a monthly rental of R 26 000.00 each[15]. He was the current occupier of the premises previously rented to the applicant and he would be using them for a motor dealer showroom in the future. All the employees were now employed by his company called Free State Wheels and he had no legal agreement with any other person or entity to rent or occupy the business premises. The latest agreement was with Botes Auto and it was terminated on 30 June 2020 as mutually agreed upon[16].

[11] In their opposing affidavit, the respondents stated the following:

"The remaining allegations in the founding affidavit;

10.

10.1 I humbly submit that the application is aimed at restoration of possession of the business premises, the immovable property, and that the collateral matters in respect of the items and conditions of agreements between the parties; the termination thereof,· the tender of movables; and so forth are not relevant and not necessary for the honourable court to consider for purposes of adjudicating on the relief claimed in this application.

10.2 In view of aforesaid conclusion I respectfully submit that it is not necessary to reply to these a/legations and I will refrain from doing so. I may however add that the version of the applicant set out in the affidavit with reference to the relationship between the parties including rights and obligations, are substantially incorrect. These matters will probably be ventilated in action proceedings to be instituted by the first and second respondent, but it is unwarranted to burden the honourable court with the matters pertaining to the envisaged proceedings, as it is irrelevant to the disputes raised in this application."[17]

[12] In its replying affidavit, the applicant maintained that the first respondent was never in possession of the business premises, alternatively, that it was in joint possession of the business premises together with Louis Botes and Botes Auto. Clause 8.2.1 of the lease agreement prohibited the applicant to sub-let or allow anyone else to reside in or occupy the premises without the prior written approval of the landlord[18]. It was untrue that Botes Auto or the applicant was behind with rental payments as there was an arrangement that such payments be deferred as a result of the Covid-19 outbreak. Such deferred rental payment was paid[19]. The fact that the second respondent handed the keys of the premises to Wiggett confirmed that the respondents took possession of the business premises, thereby illicitly depriving the applicant of possession. The lease agreement between the applicant and the landlord could not be terminated verbally but in writing.

[13] At the inception of the hearing, the applicant applied for the admission of the affidavit of one Ms Keanu Steenkamp (as it was unsigned and constituted hearsay) on the basis of Section 3 of the Evidence Act. Though the application was contested, I considered it favourably as it was just in the circumstances, taking into account the respondents1 defence and Wiggett’s assertions that he had taken control of the premises and his company had taken over the employees of the applicant into his Free State Wheels business[20]. Briefly, Ms Steenkamp's evidence is to the effect that on 31 July 2020 the employees of Barrage, who worked under Louis Botes's leadership, were all retrenched and that Free State Wheels would be managing the business of Barrage from the same premises and that they would no longer be employed directly by Barrage but by Free State Wheels[21].

[14] It was contended on behalf of the respondents that their defence was principally founded upon the fact that the applicant was not in possession of the business premises at the time of the alleged dispossession and, in consequence, the applicant was not entitled to the relief claimed. Furthermore, it was impossible for the respondents to give possession to the applicant as they were not in possession of the business premises. They were, therefore, unable to give possession of the business premises to the applicant or any other party[22]. When the application was instituted, Andre Botes, the sole member of the applicant! was aware that the owner of the business premises had repossessed them and had cancelled the lease agreement. The current possessor and owner of the business premises, Xavier, had a direct and substantial interest in the subject matter of the application and should have been joined as a party to these proceedings. The application should therefore be dismissed with a punitive costs order, or party and party costs.

[15] Counsel for the applicant contended, quite correctly so, that the respondents did not, in their answering affidavit, seriously and unambiguously deal with the facts said to be disputed, nor have they provided countervailing evidence which is of such a nature that such evidence raised a real and bona fide dispute of fact. Ex facie the affidavits filed of record, the respondents' version was so far-fetched and clearly untenable that it could confidently be said on the papers alone that it was demonstrably and clearly unworthy of credence and that it stood to be rejected on the papers alone.[23]

[16] It was contended furthermore that the respondents locked the business premises under the guise of wanting to conduct an audit on 17 June 2020. They failed to obtain a court order to take possession of the business premises but instead resorted to self­help. Since 17 June 2020 the applicant has not been allowed access to the business premises and was thus deprived of the undisturbed possession of the business premises. Instead, the company belonging to Wiggett, Free State Wheels, had ostensibly concluded an agreement with the first respondent in terms of which Free State Wheels would henceforth conduct the business of Barrage from the business premises on behalf of the first respondent.

[17] In Ngqukumba vs Minister of Safety and Security and others[24], the court stated the following:

"The essence of the mandament van spolie is the restoration before all else of unlawfully deprived possession to the possessor. It finds expression in the maxim 'spoliatus ante omnia restituendus est' (the despoiled person must be restored to possession before all else). The spoliation order is meant to prevent the taking of possession otherwise than in accordance with the law. Its underlying philosophy is that no one should resort to self-help to obtain or regain possession. The main purpose of the mandament van spa/le is to preserve public order by restraining persons from taking the Jaw into their own hands and by inducing them to follow due process".

[18] It was stated in the said case that alt the despoiled person need to prove is that-"

a) She was in possession of the object, and

b) She was deprived of possession unlawfully.”[25]

[19] I was referred by applicant's counsel to Nienaber vs Stuckev[26] where it was said that a spoliation order did not decide what, apart from possession, the rights of the parties to the properties spoliated were before the act of spoliation and merely orders that the status quo be restored.

[20] Having regard to the above, it is therefore as clear as crystal that:

20.1 The first and second respondents were dissatisfied with the services and association with both Andre Botes, the member of the applicant and Louis Botes;

20.2 Threats of prosecution and incarceration were levelled against both of them;

20.3 Both second and third respondents were not actively involved in the business of the sale of the motor vehicles at the Bloemfontein branch (and the Pretoria branch);

20.4 Despite their non-participation in the business, they effectively closed down the business on 17 June 2020 when it was actively managed by Andre and Louis Botes;

20.5 Despite the statement that the business premises would be reopened on 24 June 2020, the first and second respondents failed to do so and without informing either Louis Botes and/ or Andre and/or the applicant, the keys were handed over to the landlord on 07 July 2020;

20.6 Having not been actively involved in the Bloemfontein business, the second respondent had no reason of handing the keys over to the landlord without the knowledge of either Louis Botes or Botes Auto;

20.7 In doing so, second and third respondents actively excluded Louis Botes and/or the applicant from the continued possession of the premises situated at 204-208 Bloemfontein. The termination of the contract, contrary to the consignment agreement, and the simultaneous handing over of the keys to the landlord, are indicative of the respondents' wish to exclude the applicant and Louis Botes from the business and the business premises.

[21] I cannot dispute the submission by the applicant's counsel that Wiggett's deposition was self-serving and riddled with untruths. His affidavit was drafted or signed on 3 August 2020 in which he alleged that no payments were received for the months of April or May from the applicant. In its replying affidavit, the applicant showed that payments were made for the months of April, May and June. This was not countermanded even in the oral argument by the respondents' counsel. The last payment was made during July 2020.

[22] It was pointed out that Andre never cancelled the lease agreement and that no agreement was reached to do so. The agreement made provision for a written cancellation and not a verbal one. Furthermore, the correspondence during July 2020 between L. Botes, his attorneys and the respondents' attorneys makes nonsense of Wiggett's allegation that since he took over the premises on 7 July 2020, he met regularly with Andre to allow him access to the premises in order to remove his personal belongings. The tussle then, was still ongoing for the return of the assets, some of which represented consignment vehicles belonging to third parties.

[23] It is also clear that Wiggett's stance towards his contractual obligations as a trustee of Xavier, vis-a-vis the applicant, changed on receipt of the keys to the premises. His company stood to gain from a relationship with the respondents. This explains, in my view, his disregard for the proper process for the termination of the lease agreement, despite payments having been made for the months he failed to take into account in his calculations. He had no reason to consider the contract as terminated.

[24] In the given circumstances, it is my considered view that the respondents' defences are without foundation and stand to be rejected for lack of substance. The applicant should succeed in his claim as he has successfully satisfied the requirements of the mandement van spolie.

[25] During the hearing of the application, the applicant's counsel successfully applied for the amendment of the description of the property as contained in prayer two of the notice of motion to reflect u 204,206 and 208 Church Street, Bloemfontein" instead of and to replace 204-208 Church Street, Bloemfontein. The prayer was amended accordingly. As regards prayer 3, applicant's counsel correctly pointed out that it would not pursue prayer 3 and contented himself with the granting of the other prayers should the court find in favour of the applicant.

[26] Costs were conditionally sought against the first and second respondents in the notice of motion. However, as both opposed the application, costs were sought against them. I am of the view that the applicant is entitled to such an order.

[27] I therefore make the following order:

 

ORDER:

1. The application and prayer 1 of the notice of motion are granted;

2. Prayer 2 of the notice of motion is granted on the basis that the description of the immovable property is amended to read: 204,206 and 208 Church Street, Bloemfontein;

3. The first, second and third respondents to pay the costs of this application jointly and severally, the one paying the other to be resolved.

 

 

___________________

MHLAMBI, J

 

Counsel for Plaintiff: Adv. R van der Merwe

Instructed by: Van Wyk & Preller Inc

67 Pres. Paul Kruger Avenue

Universitas

Bloemfontein

Counsel for 1^st Defendant: Adv. PG Leeuwner

Instructed by: Symington & De Kok

Symington & De Kok Building

1698 Nelson Mandela Drive

Bloemfontein

---