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

REPUBLIC  OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG DIVISION, PRETORIA

 

(1)    NOT REPORTABLE

(2)    NOT OF INTEREST TO OTHER JUDGES

 

CASE NO: 20136/2018

29/3/2018

 

ln the matter between:

 

PUMULANI  PLANT  AND EQUIPMENT (PTY) LTD                                           Applicant

 

And

 

EXPRESS INDUSTRIAL TRUCK

BODY BUILDERS CC                                                                                                 Respondent

 

JUDGMENT

MIA, AJ

[1]        The applicant is a company duly registered and incorporated in terms the company laws of South Africa. It is the registered owner of a Hino Super F truck (the truck) with registration number [….]. The respondent is a close corporation duly registered in terms of the Close Corporations Act 69 of 1984. The respondent provides goods and services to the applicant  from time to time. The applicant brought    an urgent application to this court for the return of the truck with costs. The application is opposed by the respondent as it is disputed that the applicant was in possession of the truck prior to the vehicle being brought in for repairs to the respondent.

[2]        The applicant indicated in its founding affidavit that the truck was being rented out to Tseleng Road Construction and Projects (Pty) Ltd (Tseleng)[1]  . The truck was required by Tseleng to fulfil its obligations as a subcontractor on a Shell Filling Station  Project.  Further  the applicant  in addressing  the question  of urgency  states the following:

"1.

 

As referred to above, the vehicle is being leased to Tseleng, Tseleng has been appointed as a subcontractor for the construction of a Shell Filling Station at Kroondal.

2.

 

Tseleng is bound by certain time limits and programs and should they not comply to such programme, penalties will be imposed.

3.

 

I am aware of the fact that Tseleng does not have any other option or any other vehicle to use for this specific project.

4.

 

I am aware of the fact that should the said vehicle not be released to Tseleng within the next few days, the subcontract agreement will be cancelled and they will then suffer irreparable damage. They will then have to institute action and claim against the Applicant for their loss and damages."[2]

 

[3]       In the event that Tseleng were in possession of the truck and were in danger  of losing the contract, it would seem that they  would  rush   to court to restore their possession. The driver of the truck  at the time it  went in for repairs was a driver employed by Tseleng,  Mr  Manemela. Whilst Mr Manemela attests that he was tricked  by  Mr Van  Rensburg  the owner of the respondent into  returning  the  vehicle  to  the  respondent for repairs, he nevertheless  returned  the vehicle  on behalf  of Tseleng and not on behalf of the applicant.

[4]        The issue of physical possession is the first issue raised by the respondent in its opposing papers. The respondent points out that the applicant's version is that the vehicle was in the possession of Tseleng. Mr Van Rensburg knew Mr Manemela and indicates that the nature of their relationship was that the drivers often informed him of problems with the trucks before the owner gave the instruction for the repair. Mr Manemela visited the premises on 3 March 2018 complaining of the brakes. He informed Mr Manemela he would contact him when he was available to attend to the problem. He called Mr Manemela on 7 March 2018 when he was available. He points out further that as the owner of the vehicle the applicant had the re vindicatio available to him for the return of the vehicle but knew that same would not succeed in view of the improvement lien the respondent had for the crane which had been affixed to the truck.

[5]        In response to the above the Mr Botha, the director of the applicant places before this court in a replying affidavit a version that the truck did not remain on site at Kroondal unless required for subcontract works. He informed Mr Manemela to return the truck to the applicant's yard in Pretoria until it was required the following week. Mr Manemela resided on the respondent's premises. The applicant's driver was in Pretoria and it made sense for Mr Manemela to drive the truck back to Pretoria.The applicant's driver was at the yard and the truck was required for various work to be done in and around the yard in Pretoria.

[6]        Mr Botha further denies the practice existed that repairs were effected without prior instructions  or an order  given.  He also  denies  knowledge of the complaint made by Mr Manemela to Mr Van Rensburg .  He  submits further that his own technician would have attended to the  brakes. Mr Manemela indicates in the founding affidavit  that  he  was lured however there is no reply from Mr Manemela  who  Mr  Van Rensburg had the conversation with to indicate that  no  such  conversation occurred. That he did not take the vehicle in on 3 March 2018 as suggested  by Mr Van Rensburg.  It is also the  first time Mr  Botha raises the factual possession in the replying affidavit after having indicated that Tseleng required the truck within  the  next  few  days  to fulfil their obligations  on the contract.

[7]        In Nino Bonino v De Lange 1906 TS 120 at 122 the Court per the Chief Justice stated:

 

"It is a fundamental principle that no man is allowed to take the law into his own hands; no one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property whether movable or immovable. If he does so, the Court will summarily restore the status quo ante, and will do that as a preliminary to any inquiry or investigation into the merits of the dispute"'

 

[8]        In Jivan v National Housing Commission 1977 (4) All SA156 (W), the Court per Steyn J, stated at  162:

"A spoliation order against a party other than the spoliator is logically beyond the scope of the purpose of the mandament to prevent persons from taking the law into their own hands."

 

[9]        In the present matter it is evident that Mr Manemela, the driver of Tseleng was in possession of the truck when it went was driven to  the respondent. Thus I hold the view that the property in question is, and was, in the peaceful possession of Tseleng, a third party at the time prior to the launching of this application, and excludes the possibility of granting a spoliation order to the applicant against respondent.

[10]     In view of the findings on the applicable law and facts of this case, the applicant has not made out a case and the application is refused with costs.

 

ORDER

[11]       For the above reasons the following  order is  made

1.         The application is dismissed with costs.

 

 

S C MIA

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

 

 

Appearances:

On behalf of the applicant              :           Adv A Botha

Instructed by                                     :         O J Botha Attorneys

 

On behalf of the Adv V Malherbe

Instructed by Van Heerden & Krugel Attorneys

 

Date of hearing 27 March 2018

Date of judgment29 March 2018

 

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