---

CASE NO: 633/2010

NORTH WEST HIGH COURT, MAFIKENG

In the matter between:

SHATSANE SYSTEM SOLUTIONS (PTY) LTD APPLICANT

and

KHASU ENGINEERING SERVICES (PTY) LTD 1^ST RESPONDENT

FYNBOSLAND CC 2^ND RESPONDENT

J U D G M E N T

MPSHE AJ:

[1] This is an application for mandament van spolie of a construction site known as Vryburg Extension 25 (the premises). The relief sought is to place applicant in possession of premises and to interdict and restrain Respondent from interfering with the builder’s lien held by the Applicant. The relevant prayers read as follows:

“2. That the Respondents, their employees, workmen, subcontractors and other persons claiming the right of possession the township development known as Vryburg, Ext 25 (“the premises”) through the Respondents, be directed and ordered to immediately restore the undisturbed possession and control of the premises to the Applicant;

3. That the Sheriff or his deputy be authorised and directed to eject the Respondents, their employees, workmen, subcontractors and other persons claiming the right of possession of the premises claiming the right of possession of the premises through the Respondents from the premises, in the event of possession and control of the premises not having been restored to the Applicant within 24 (twenty four) hours from the date of service upon the Respondents and all other persons who may be found to be in possession or control of the premises (other than the Applicant’s representatives) of this order by the Sheriff or his Deputy;

4. That the First Respondent be interdicted and restrained from interfering in whatever manner with the existing builder’s lien held by the Applicant over and in respect of the premises;

5. Alternatively to prayer 4; that the Applicant be directed to waive the existing builder’s lien which its enjoys over the premises upon the First Respondent rendering security in a form acceptable to the Applicant in favour of the Applicant in the amount of R12 434 627,00, such security to remain in place pending the outcome of an action to be instituted by the Applicant against the First Respondent for the payment of the amount of R12 434 627, 00 or for such other relief as the Applicant may be advised that it may be entitled to against the First Respondent in respect of the building works on the premises;

6. That the First Respondent is ordered to pay the costs of the application, alternatively, and in the event that the Second Respondent opposes the application, then the Respondents be ordered to pay costs of the application jointly and severally, the one paying the other to be absolved;”

AD BACKGROUND

[1] The Applicant conducts business in the construction industry.

[2] The First Respondent is a consulting business involved in the management of construction and development contracts.

[3] The Second Respondent conducts business as a building contractor in the Vryburg area.

[4] During or about October 2008 and at or near Gauteng, the Applicant and the First Respondent entered into a partly oral and partly written agreement in terms of which the Applicant was appointed by the Respondent as the “main contractor” for the construction of the “Low Cost Housing Development for Vryburg Ext 25” (“the agreement”).

[5] The First Respondent confirmed in writing the Applicant’s appointment as the “main contractor” for the abovementioned project. The letter of confirmation forms part of the written portion of the agreement. Annexure “FA2”.

[6] In terms of the agreement the Applicant undertook to build 3000 low cost houses and install the sewerage and water systems (“the works”) at the premises.

[7] In support of this application Applicant filed a founding affidavit of one SILVER SHALONGA in his capacity as Chief Executive Officer and Director of Applicant.

In opposition Respondent filed an affidavit of one CHRISTOFFEL HENDRICK VAN NIEKERK in his capacity as General Manager of First Respondent. This affidavit deals also with issues relating to Second Respondent being duly authorised by Second Respondent.

AD MERITS

[1] It is common cause that an agreement had been entered into between the parties.

[2] Applicant states that it commenced work (construction) on during October 2008 till 8 March 2010.

[3] That during this period, Applicant enjoyed undisturbed possession of the premises. Further that during the period October 2008 to October 2009 Applicant had completed certain works in compliance with the construction agreement.

[4] That the value of works so completed amounted to R31 938 017,00. That First Respondent had paid only R19 503 390,00 resulting in monies owed by First Respondent to Applicant totalling R12 434 627,00.

[5] The Applicant, in order to continue with the work directed a letter to First Respondent on the 7^th February 2010. This letter Annexure “FA3” was written by Andrew Ngulele the site manager of Applicant at the premises.

[6] Applicant had established a site office at the premises. The area was camped and materials and equipment stored on the premises under the control and management of Andrew Ngulele the site manager.

[7] The alleged spoliation is alleged to have taken place on the 08^th March 2010. I quote herein the salient paragraphs 37, 40 and 43 of the affidavit:

“37. On Monday 8 March 2010 Ngulele reported to me that unknown builders had moved onto the premises and commenced to build houses on the premises at sites where the Applicant was supposed to build houses in terms of the agreement.

40. In the meantime Ngulele and I tried to establish at whose instance did the unknown builders commence with work at the premises. Through a source in the local Naledi Municipality, I was supplied with a copy of a letter which was purportedly direct by Acting Municipal Manager to Head of the Department of Human Settlement (North West Province) and that concerns the pending project at the premises. Annexure “FA14” hereto is a copy of the letter.

43. From all these facts I came to the only reasonable inference, namely that the First Respondent was behind the appointment of these interlopers.”

[8] Applicant then through the attorney of record dispatched a letter to First Respondent marked FA15. I choose to quote the contents of the whole letter herein as it points out prayers as per Notice of Motion:

“In re: SHATSANE SYSTEMS SOLUTIONS (PTY) LTD (“our client”) NALEDI LOW COST HOUSING DEVELOPMENT : VRYBURG EXT 25

We confirm that we act on behalf of Shatsane Systems Solutions (Pty) Ltd herein who has instructed us as follows:-

1. That during or about October 2008, our client entered into a building contract with Khasu Engineering Services (Pty) Ltd (hereinafter referred to as (“the building contract”) in terms whereof our client was to construct low cost housing as well as water and sewerage systems in terms of a tender contract Khasu Engineering Services (Pty) Ltd (“Khasu”) has with Naledi Local Municipality at Naledi;

2. That as at date hereof, Khasu have failed to pay our client for the services rendered, this despite demand have been place therefore;

3. That our client has a building lien over the building work so performed and, has at date hereof not handed over the works to Khasu or any other party. Our client remains in possession of the site;

4. That despite our client still being present on site you have contracted with a third party sub-contractor to carry on with the works and, ignored our client’s representations on site. In so doing, you are infringing our client’s building lien it has over the works on site.

Accordingly, you are advised that should you fail to by close business to remove the third party contractor from site and, to confirm that you have done so in writing, our client will have no option but to approach the High Court on an urgent basis in order to obtain an interdict against your company as well as any other third party having access to the site via yourself. This will be done without further notice to yourself and the costs thereof will be recovered from you.

Yours faithfully

MARTIN HENNIG

Typed and sent in the absence of Mr. Hennig”

[9] The letter did not produce any positive results in favour of Applicant. This then led to the launching of this application on an urgent basis.

[10] In response First Respondent disputes the allegations in the founding affidavit. The dispute is directed specifically at the issues of spoliation, existence of builder’s lien and resist the prayers sought. I will, for purposes of my conclusion herein deal only with relevant facts in dispute.

[11] Respondents dispute paragraphs 33, 34 and 35 of founding affidavit in the following terms:

“AD PARAGRAPH 33 THEREOF :

26.1 The allegations contained herein are denied.

2. The First Respondent enjoyed the undisturbed possession of the premises alternatively enjoyed joint possession over the premises.

2. It is repeated that nobody deprived the Applicants possession, but that it left the premises, voluntary, without having the courtesy to inform the First Respondent of its departure.

AD PARAGRAPH 34 THEREOF :

The allegations are denied. NGULELE left the site on or about 12 February 2010, also without having the courtesy of informing the First Respondent of his departure.”

[12] In relation to paragraph 53 of founding affidavit Respondents states the following:

“AD PARAGRAPH 53 AND 54

1. The allegations are denied.

2. It is submitted that since the 15^th of December 2009 alternatively 12 February 2010 the Applicant voluntary lost possession of the premises, as the Applicant repudiated the agreement.

3. Nobody deprived the Applicant form possession, whatsoever.

4. Indeed the First Respondent appointed another contractor, who was willing to continue the project, without disappearing 3 months, like the Applicant, and then all of a sudden launch an urgent application to frustrate the First Respondent and the project.”

[13] I need to mention that there are other allegations disputed that have a bearing on whether spoliation did take place. The existence of builder’s lien is also in dispute. I choose not to deal with the same in detail due to the highlighted and material disputes supra.

[14] It is so that certain motion proceedings may not be capable of being decided solely on the papers filed. In order for the Court to arrive at an informed decision it sometimes becomes imperative to hear oral evidence.

[15] The Respondents requested that the application be dismissed or be referred to oral evidence.

[16] I need to mention that the denials by Respondents are not bare denials without substantiating the same. This is ascertainable from the quotation supra from the opposing affidavit.

1. In the case of WIGHTMAN t/a J W CONSTRUCTION v HEADFOUR (PTY) LTD AND ANOTHER [2008] ZASCA 6; 2008 (3) SA 371 (SCA) to which I was referred by Mr Cowley for Applicant HEFER, JA at p 375 G-I said the following:

“A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed. There will of course be instances where a bare denial meets the requirement because there is no other way open to the disputing party and nothing more can therefore be expected of him. But even that may not be sufficient if the fact averred lies purely within the knowledge of the averring party and no basis is laid for disputing the veracity or accuracy of the averment. When the facts averred are such that the disputing party must necessarily possess knowledge of them and be able to provide an answer (or countervailing evidence) if they be not true or accurate but, instead of doing so, rests his case on a bare or ambiguous denial the court will generally have difficulty in finding that the test is satisfied.”

2. In the case of BEUKES v CROUS & EN ʼn ANDER 1975 (4) SA 215 (NC) the full court held that in spoliation proceedings, where there is a dispute on possession prima facie cases does not suffice particularly in motion proceedings Van Den Heever R, said the following at 218 E-F

“Waar daar ʼn geskil is aangaande die vraag, of applikant werklik in besit was, is ʼn prima facie saak nie voldoende in mosie of inderdaad enige verrigtinge nie. Braun v Powrie, 13 C.T.R. 464; Van Malsen v Alderson & Flitton and Another, 1931 T.P.D. 38 te bl. 39; Shaw v Hendry, 1927 C.P.D. 357; Buhrman v Neumeyer, 1917 T.P.D. 630; Remly v Lipton, 1946 W.L.D. 353. Verder oorwegings, soos die sg. “balance of convenience” is nie tersake nie.”

He further with regard to interdicts said the following:

“Insgelyks, wat interdikte betref, is daar ʼn verskil afhangende daarvan of hulle finaal aangevra word, of pendende lite. In lg. geval hoef ʼn aansoek-doener slegs prima facie te toon dat hy op iets geregtig is indien die oorwig van gerief die toestaan van ʼn tydelike interdik begunstig. Maar indien hy ʼn finale bevel verlang, moet hy weereens op ʼn oorwig van waarkysnlikhede sy “liquide reg” bewys, ʼn taak wat gewoonlik by wyse van aksie aangepak word aangesien ʼn finale bevel nie op mosie toegestaan sal word nie indien daar ʼn geskil op die feite is. Botha v Maree en ʼn Ander, 1964 (1) S.A. 168 (O); Fourie v Uys 1957 (2) S.A. 125 (K) te bl. 126.”

3. In the ROOM HIRE CO (PTY) LTD v JEPPE STREET MANSIONS (PTY) LTD 1949 (3) SA 1155(T) the Court dealt with the issue of existence of dispute of tact as follows: at 1162 – 1163

“It is obvious that a claimant who elects to proceed by motion runs the risk that a dispute of fact may be shown to exist. In that event (as is indicated infra) the Court has a discretion as to the future course of the proceedings. If it does not consider the case such that the dispute of fact can properly be determined by calling viva voce evidence under Rule 9, the parties may be sent to trial in the ordinary way, either on the affidavits as constituting the pleadings, or with a direction that pleadings are to be filed. Or the application may even be dismissed with costs, particularly when the applicant should have realised when launching his application that a serious dispute of fact was bound to develop. It is certainly not proper that an applicant should commence proceedings by motion with knowledge of the probability of a protracted enquiry into disputed facts not capable of easy ascertainment, but in the hope of inducing the Court to apply Rule 9 to what is essentially the subject of an ordinary trial action.

The crucial question is always whether there is a real dispute of fact. That being so, and the applicant being entitled in the absence of such dispute to secure relief sought by means of affidavit evidence, it does not appear that a respondent is entitled to defeat the applicant merely by bare denials such as he might employ in the pleadings of a trial action, for the sole purpose of forcing his opponent in the witness box to undergo cross-examination. Nor is the respondent’s mere allegation of the existence of the dispute of fact conclusive of such existence.”

[17] Circumstances in this case inter alia the delay in completing the houses, the effect on the employees of the Applicant and possible impact this case may have on the second respondent demand that the matter be finalised on papers. However, I have come to the conclusion that dispute of facts do exist and that only viva voce evidence will enable an informed decision on the matter.

[18] I am convinced that this matter qualifies to be referred to evidence in terms of Rule 6 (5)(g) for reasons advanced supra. It may be necessary for the parties to approach the Registrar of Court and request that the matter be enrolled within a short space of time.

CONCLUSION

Consequently I make the following order:

1. The application is referred for the hearing of oral evidence at a time to be arranged with the Registrar, on the question whether or not the

1. Applicant enjoyed undisturbed possession up till 08^th March 2010.

2. A builder’s lien becomes lost despite the allegation that Applicant’s material and implements are on the premises.

2 The evidence shall be that of any witnesses whom the parties or either of them may elect to call, subject, however, to what is provided in para 3 hereof.

3 Save in the case of the deponents to the affidavits filed of record, neither party shall be entitled to call any witness unless;

1. it has served on the other party at least 14 days before the day appointed for the hearing (in the case of a witness to be called by the respondent) and at least 10 days before such date (in the case of a witness to be called by the applicant), a statement wherein the evidence to be given in chief by such person is set out; or

2. the Court, at the hearing, permits such person to be called despite the fact that no such statement has been so served in respect of his evidence.

4 Either party may subpoena any person to give evidence at the hearing, whether such person has consented to furnish a statement or not.

5 The fact that a party has served a statement in terms of para. 3 hereof, or has subpoenad a witness, shall not oblige such party to call the witness concerned.

6 Within 21 days of the making of this order, each of the parties shall make discovery, on oath, of all documents relating to the issue referred to in para. 1 thereof, which are or have at any time been in the possession or under the control of such party. Such discovery shall be made in accordance with Rule of Court 35 and the provisions of that Rule with regard to the inspection and production of documents discovered shall be operative.

7 The provisions of Rule of Court 37 shall apply.

8 The incidence of the costs incurred up to now shall be determined after the hearing of oral evidence.

________________________________

M J MPSHE

ACTING JUDGE OF THE HIGH COURT

APPEARANCES:

For the Applicant : Adv Cowley

For the 1 & 2 Respondents : Adv Scholtz

Applicant’s Attorneys : Smit Stanton Inc

1 & 2 Respondents’ Attorneys : Nienaber & Wissing

Date of hearing : 25 March 2010

Date of judgment : 22 April 2010

---