---

IN THE HIGH COURT OF SOUTH AFRICA

NATAL PROVINCIAL DIVISION

CASE: 8877/06

MASIRELO HAULAGE (PTY) LTD APPLICANT

versus

EMNAMBITHI/LADYSMITH MUNICIPALITY RESPONDENT

RESERVED JUDGMENT

Delivered on: 4 January 2007

NTSHANGASE, J

[1] This matter came before me as an urgent application for a mandament van spolie to restore possession of a trailer “impounded” on 9 December 2006 by the respondent and which the respondent refuses to release.

[2] I state the facts of this matter briefly, including those which are common cause. On 9 December 2006, in the evening, an articulated vehicle (‘the vehicle’) consisting of a horse and two trailers numbered DJG 214 MP and DJG 215 MP respectively was involved in an accident at the intersection of Murchison and Alexandra streets in the town of Ladysmith. I shall refer to the trailer DJG 215 MP as the ‘trailer’ unless the context indicates otherwise. The trailer bore a consignment of rice. The vehicle was driven by Moses Mokoena (‘the driver’). As a result of the accident the vehicle came to rest on the left lane of Murchison street, and the trailer obstructed that lane. Robots and a building were, as a result of the accident, damaged at the scene of the accident. Following a report received by Machiel Dawid Viljoen, a ‘Superintendent: Traffic of the Department of Public Safety,’ [“Superintendent Viljoen”], Traffic Officer S Singh and Assistant Superintendent A Stander all in the employ of the Emnambithi Municipality repaired to the scene and took charge thereof.

[3] According to Superintendent Viljoen, after the driver explained at the scene of the accident as to what had brought about the accident, Superintendent Viljoen also engaged in a telephonic conversation with someone he assumed to be Wynand Britz [“Britz”], referred to in the founding affidavit of the applicant as an employee of ‘JT Britz Transport [Edms] Bpk’ [“JTB”] upon whose instruction the consignment on the trailer was being conveyed from Durban to Kinross.

[4] The applicant, in the affidavit of Britz avers that what followed was its unlawful deprivation of possession of the vehicle, in particular the trailer, by the respondent by the act of Superintendent Viljoen. It is what brought about these proceedings.

[5] In the affidavit filed in these proceedings on behalf of respondent by Jacobus Hercules Breedt [“Breedt”], the respondent’s ‘Manager: Public Safety’, the respondent took the point that the applicant has not made out a case for the matter to be dealt with on an urgent basis. Mr Hartzenberg, for the respondent urged that for that reason the application must fail.

[6] Clearly, this matter cannot derive automatic urgency purely from it being an application for a spoliation order. Rule 6(12)(b) of the Uniform Rules of Court itself states that the applicant must in every affidavit or petition in support of an urgent application under Rule 6(12)(a), to dispense with the forms and service provided for in the rules, “set forth explicitly the circumstances which he avers render the matter urgent and the reasons why he claims that he could not be afforded substantial redress at a hearing in due course.”

[7] Now, in its application the applicant set forth its reasons why it could not be afforded substantial redress at a hearing in due course. It stated the cargo on the trailer to be both “perishable, consisting of rice, and (to be) already late for delivery.” The trailer was to be used (certainly after whatever repairs to it would be necessary), to honour such “late” contractual commitments. I am satisfied that the applicant’s apprehension of the risk of damage to the cargo was not unreasonable. In that regard Superintendent Viljoen himself stated:

“I mention in this regard that the canvas sail covering the load on the trailer had been ripped open, and the cargo was therefore at risk.”

Superintendent Viljoen also stated the reason for removal of the trailer to where it was taken to be the following:

“Such removal [of the trailer] … was also aimed at securing the trailer itself and more especially the cargo on the trailer which was at risk of being damaged and/or stolen.”

[8] I pause here to state that I can understand the risk of the cargo being damaged but I cannot understand how the risk of theft arises when the driver of the vehicle himself was with the trailer and its cargo. It has not been suggested that he would not have secured it against theft.

[9] It is the consideration that “the cargo on the vehicle (was) perishable” and the contractual commitments which, in my view, informed the applicant’s decision to bring the matter before court as one of urgency. I am of the view that the circumstances of the case do not lend force to the submission of the respondent that the matter did not warrant treatment as one of urgency. I am of the view that the applicant did make out a case for urgency in accordance with the provision of Rule 6(12)(b). The respondent’s submission to the contrary must fail.

[10] I turn now to examine how possession of the trailer was lost to the applicant and acquired by the respondent. For, therein lies the purpose of such acquisition of possession.

[11] It is beyond argument that after the accident at the intersection of Murchison and Alexandra streets, the trailer needed to be removed from the scene of the accident. In that regard the respondent, in the affidavit of Superintendent Viljoen stated:

“The articulated vehicle was parked in Murchison street in front of the ‘Fish Café’ facing North to South. The vehicle was obstructing the left lane.”

[12] The truck tractor and trailer DJG 214 MP were, according to the affidavit of Breedt, removed to premises occupied by respondent in Murchison street which were slightly less than a kilometre away from the scene of the accident while the trailer was towed to respondent’s premises at the Qedusizi Dam site “for reasons explained by Traffic Superintendent Viljoen.”

[13] It is not clear as to which of the reasons explained by Traffic Superintendent Viljoen Breedt referred to here as, prior to the removal of the trailer, Superintendent Viljoen gave to the driver some other reason for the removal when he stated:

“I then explained to the driver that I would impound the vehicle until all damages caused to the robots had been paid.”

Superintendent Viljoen also stated that he had conveyed his intention to impound the vehicle to Britz as well to which, according to him, Britz agreed. Britz denied in his replying affidavit that Superintendent Viljoen had informed him of such intention or that he had agreed to the impoundment of the vehicle. In regard to the impoundment of the vehicle, Breedt, in his affidavit, stated that when on 10 December 2006, Ms Aletta Marx, the respondent’s control-room operator informed him that Britz had requested to speak to him “(he) (Breedt) informed Ms Marx to convey to Mr Britz that all three vehicles would be released upon receiving an acknowledgement of debt and an undertaking by the insurers of the vehicle to pay the damage caused to the robots at the aforesaid intersection. (He) suggested that as an alternative, an interim deposit of R20 000 could be made to secure payment in this regard.”

[14] As has been stated earlier it is beyond argument that after the accident at the intersection of Murchison and Alexandra streets the trailer needed to be removed as it was obstructing the free flow of traffic on the left lane in Murchison street.

[15] It appears from the affidavit of Superintendent Viljoen that at the time of the decision to remove the trailer Britz had, in conversation with him “specifically requested Viljoen not to make use of any tow-in service and indicated that ‘JTB’ would be sending its own staff to the scene to attend to the matter,” and that “the respondent’s use of any tow-in service would be at respondent’s cost and risk,” According to the founding affidavit of Willem Lodewikus Fourie, “Britz and Viljoen agreed that the horse would unhitch the vehicle and remove the other trailer, and that Britz had indicated that the horse would return within half an hour to remove the vehicle;” (vehicle, in this context, refers to the trailer).

It appears that although Britz had initially stated that the truck-tractor would return within half an hour to remove the trailer, when Superintendent Viljoen pointed out to him (Britz) that the air-hose on the trailer was broken, Britz accepted that the removal of the trailer could not be effected by use of the applicant’s truck-tractor. Superintendent Viljoen pointed out that “(a)lthough, initially Mr Britz objected to the trailer being removed from the scene, in view of the aforesaid circumstances, he was agreeable thereto.”

I am not persuaded though that Britz consented to the impoundment of the vehicle. I have no doubt that for the trailer to be removed to the Qedusizi Dam site it was not the consent of Britz but the authority of Superintendent Viljoen which prevailed.

[16] I am satisfied though that the removal of the trailer by the respondent was essential in order to ‘unblock’ the left lane in Murchison street which the trailer obstructed. If that was the reason for the removal of the trailer, as indeed it should have been, I fail to understand the reason for towing the trailer to ‘Qedusizi Dam site’. It may be mentioned that according to the affidavit of Breedt, “the truck-tractor and the trailer bearing registration number DJG 214 MP were removed to premises occupied by the respondent in Murchison street, slightly less than a kilometre away from the scene of the accident. Such premises are guarded 24 hours every day.”

[16] The conclusion appears to me to be inescapable that when Superintendent Viljoen caused the trailer to be towed to the Qedusizi Dam site of the respondent it was not for the purpose of securing its cargo against the risk of theft as there were premises occupied by the respondent in Murchison street to which it could have been towed and such premises were under guard for 24 hours every day, and as was stated earlier, the driver was himself available to guard the cargo and to secure it against the risk of theft until the applicant removed the trailer and its cargo.

[17] In this matter as was stated in Van Eck, NO and Van Rensburg NO v Etna Stores 1947(2) SA 984(A) at 995:

“(i)t is the real purpose which has to be ascertained from all the surrounding circumstances – the acts of the parties and what they said at the time.”

In this matter both Superintendent Viljoen and Breedt clearly expressed themselves at the time in regard to the purpose for which they acquired possession of the vehicle – in particular the trailer.

[18] It was also suggested and argued on behalf of the respondent that Superintendent Viljoen, as a Peace Officer had seized the vehicle in terms of sections 20 and 22 of the Criminal Procedure Act No. 51 of 1977 and that he therefore acted under statutory authority when the applicant was deprived of possession of the vehicle. This appeared to be an additional explanation to indicate the lawfulness of the respondent’s acquisition of possession.

[19] I am not persuaded that when the truck tractor and the trailers and in particular, the trailer in issue was seized the respondent’s Superintendent Viljoen acted in terms of the provisions of the Criminal Procedure Act referred to. For purposes of criminal proceedings I cannot conceive of a reason in this particular case which would necessitate seizure, for which the Criminal Procedure Act makes provision.

[20] In regard to the purported seizure under statutory authority I need only to state what Davis AJA stated in Van Eck, NO and Van Rensburg NO supra at 997 that –

“(t)o pretend to use a power for the purpose for which alone it was given, yet in fact to use it for another, is an abuse of that power and amounts to mala fides.”

[21] The pretext that the acquisition of possession of the vehicle was necessitated by considerations of preservation of the trailer and its cargo or that it was under statutory authority, cannot eclipse the real reason for the acquisition of possession of the truck tractor and its trailers which, in my view clearly appears to have been to impound it to secure payment of a delictual debt for damage caused to the robots.

[22] The seizure was illegal and when it occurred, Superintendent Viljoen took the law into his own hands. In that regard Tindall JA in Sinovich v Hercules Municipal Council 1946 AD 783 at 792 stated:

“Courts do sometimes interfere to protect an injured party against an abuse of power, for example, in those well recognised cases in which powers given to public bodies to be used for certain purposes are wrongly used by them to achieve some other purpose (see Fernwood Estates, Ltd v Cape Town Municipal Council (1993 CPD 399) and the cases therein referred to).”

[23] With regard to the respondent’s claim to a lien over the trailer and its cargo by virtue of the purported salvage and protection of that property against damage and loss, I find such a claim to be defeated by the reasons which follow. Firstly such a claim flies in the face of the actual reason for applicant’s dispossession as expressed by Superintendent Viljoen to be to “impound (it) until all damages caused to the robots had been paid.” The other reason is that the purported preservation of the property would have occurred against the express wish of the applicant. The applicant, through Britz, may be said to have consented to the removal of the obstruction which the trailer created at the scene of the accident. The consent was for no more than that. If the respondent incurred expenses in that regard, as such expense may indeed have been incurred, it is not clear to me why it is, as it appears to me to be the case, that the payment of such expense as was incurred was not demanded from the applicant. Nowhere in the affidavits filed on behalf of the respondent is it stated that the amount of R1710 referred to now in the papers of the respondent as the towing or salvage costs was demanded either on the date of the accident or on any other day and that there was a failure by the applicant to pay such amount. All that Breedt states about that amount in his affidavit is that the applicant’s attorney did not convey to him that the applicant or any other person “tendered to pay respondent’s expenses including (the unnamed) expenses of removing the trailer from the scene and of preserving any of the vehicles or their cargo.” It is not alleged that it was upon failure to pay such amount on demand that the competence to retain the trailer and its cargo was derived. Instead of being informed about whatever expense had been incurred in the removal of the trailer from where it caused an obstruction, the applicant appears to have been informed only about R20 000 for the damage to the robots. I would have been prepared to consider that a lien would have been created if, notwithstanding demand, the applicant had failed to make payment in respect of the expense incurred in the removal of the trailer from the scene to the extent of unblocking the obstruction it caused.

[24] In regard to the purported preservation of the trailer and its cargo, the respondent’s claim to a lien must fail as the respondent did not obtain possession of the trailer with its cargo lawfully. I consider what Botha JA stated in Brooklyn House Furnishers v Knoetzee & Sons 1970(3) SA 264(A) at 275 to have a bearing on this insofar as it relates to possession unlawfully acquired. He stated:

“Daarvolgens is enige besitter van iemand anders se saak, mits hy maar net nie op onregmatige wyse besit gekry het nie, soos bv. ʼn dief, wat die saak teen beskadiging bewaar of dit verbeter, geregtig op ʼn bewaringsretensiereg of ʼn retensiereg vir die vebeterings, om in besit of beheer van die saak te bly totdat hy vir sy noodsaaklike of nuttige uitgawes behoorlik vergoed is.” [my emphasis]

[25] I therefore conclude that not only was the applicant wrongfully deprived of his possession of the trailer and cargo against its wish, the respondent also has no legitimate claim to a lien to such trailer and cargo in the circumstances of this case.

[26] In the result I make the following order:

1. The respondent is directed to forthwith release the applicant’s trailer with registration DJG 215 MP from its possession, and allow the applicant to forthwith remove the said trailer against payment of the necessary costs related to the removal of the trailer from the scene of the accident to the place of impoundment.

2. Respondent is ordered to pay the costs of this application on an attorney and client scale.

Date of Hearing: 18 December 2006

Date of Judgment: 4 January 2007

Counsel for the applicant: Adv S P Olivier

Instructed by: Haarhof Fourie & Partners

c/o Stowell & Company

Counsel for the respondent: Adv C J Hartzenburg SC

Instructed by: Tatham Wilkes Inc.

---