REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEKJUDGMENT

CASE NO.: A 355/2015

In the matter between:

CHINA HARBOUR ENGINEERING COMPANY LIMITED APPLICANT

and

ERONGO QUARRY AND CIVIL WORKS(PROPRIETARY) LIMITED FIRST RESPONDENT

JASON GURIRAB SECOND RESPONDENT

Neutral citation: China Habour Engineering Company Limited // Erongo Quarry and Civil works (PTY) Ltd. (A355/2015) [2015] NAHCMD 18 (10 January 2016)

Coram: UEITELE, J

Heard: 20 JANUARY 2016 & 02 FEBRUARY 2016

Delivered: 10 February 2016

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Flynote: Spoliation — Mandament van spolie — In what cases — Incorporeal —

Applicant and respondent both having access to a quarry site — Respondent denying

applicant access to the quarry site — Respondent depriving appellant of possession —

Spoliation operating in respect of incorporeal things — Remedy also available to quasi-

possessors - Respondent taking law into his own hands by depriving applicant access

to quarry site.

Summary: This application was brought on an urgent basis for a mandament van

spolie order in which the applicant claimed that on 6 November 2015 respondent denied

applicant access to the quarry site by instructing all persons performing quarry

operations to stop such operations including the operation of the equipment, prohibited

the applicant to access the quarry site and demanded that the keys required to operate

the equipment be surrendered to the officers or employees of the respondent.

The, applicant and first respondent started doing business with each other during the

year 2013. A loan agreement was concluded on 18 December 2013 in terms of which,

applicant would grant first respondent a loan in the amount of US$ 8.5 mil. The loan

was to enable the first respondent to construct and operate a quarry. Further

agreements were concluded between the parties on 25 April 2014.

During June 2015, the respondent purported to cancel the agreements. As a result of

the purported cancellation of the agreements, the respondent denied the applicant

access to the quarry site. During the period between June 2015 and November 2015,

the parties entered into negotiation discussions in respect of the cancelled agreements

and applicant’s access to the quarry site was restored during the negotiation period, the

negotiation discussions, however, broke down during October 2015 and first respondent

through its employees on 6 November 2015 denied applicant access to the quarry site

and consequently to the equipment set out in paragraphs 2.2 to 2.20.

Held, an incorporeal right cannot be possessed in the ordinary sense of the word. The

possession is represented by the actual exercise of the right. Consequently refusal to

allow a person to exercise the right will amount to a dispossession of the right. In

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spoliation proceedings the applicant need not prove that he has the right; what is

relevant is whether or not he has exercised the right.

Held further that, it is inconsequential as to how one characterizes or describes the right

that had been exercised by the applicant, it came to an abrupt stop and that constitutes

a deprivation perpetrated by the respondent, and this without invoking an order of a

court of law. It is a classic case of taking the law into one's own hands and this is what

the remedy of mandament van spolie aims to prohibit.

ORDER

1 The non-compliance with the forms and service provided for by the rules of this

court is condoned and the application is heard on an urgent basis as is envisaged

in rule 73(3) of the High Court Rules.

2 The first and second respondents are ordered to forthwith restore the applicant's

peaceful and undisturbed possession ante omnia in and to;

2.1 the property described as: the quarry site located at Walvis Bay, and more

fully depicted as per annexure ‘J ‘ to the applicant’s founding affidavit

together with all stone products stored or stockpiled thereon; and

2.2 the following equipment:

2.2.1. Three CAT336D excavators;

2.2.2. One CAT336D2 excavator;

2.2.3. One DX800 drilling rig ;

2.2.4. One AirROC D50 downhole drill;

2.2.5. One XRVS1050 movable air compressor;

2.2.6. One ZL50GN loader;

2.2.7. One SD 22 bulldozer;

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2.2.8. Two breaking hammers;

2.2.9. Five SX3255DR384R dump trucks more fully described in annexure

“B” to the applicant’s founding affidavit;

2.2.10. One SX5255GSSDN464 water distributor;

2.2.11. Three generator sets 650 KW;

2.2.12. Two stone crusher plants;

2.2.13. One ZL500N loader;

2.2.14. One generator set 80 KW;

2.2.15. One generator set 400 KW ;

2.2.16. One SX3255DR384R dump truck; and

2.2.17. One loadometer.

3 The first and second respondents, jointly and severally, the one paying the other

to be absolved, are ordered to pay applicant's costs, such costs are to include

the costs of one instructing and two instructed counsel.

JUDGMENT

UEITELE, J

Introduction and Background

[1] In this matter the applicant is China Harbour Engineering Company Limited, a

company registered and incorporated in accordance with the company laws of the

People’s Republic of China, but which has its principal offices situated in Namibia . The

first respondent is Erongo Quarry and Civil Works (Proprietary) Limited, a private

company with limited liability, registered and incorporated in accordance with the

applicable company laws of the Republic of Namibia. The second respondent is Jason

Gurirab, the first respondent’s managing director (I will, in this judgment refer to them

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collectively as the respondent except where the context requires me to refer to each of

them as the first or second respondent).

[2] On 14 December 2015 and on an urgent basis the applicant commenced

proceedings in this court by notice of motion in which it sought the following relief:

'1. Condoning the applicant's non-compliance with the forms and service provided for

by the Rules of the above Honourable Court and hearing the application as one of

urgency as contemplated in rule 73;

2. That the applicant’s possession of –

2.1 the quarry site located at Walvis Bay, and more fully depicted as per

annexure ‘J ‘ to the founding affidavit together with all stone products stored

or stockpiled thereon;

2.2 … [the equipment set out in paragraphs 2.2 to 2.20 in the notice of motion];

be restored ante omnia;

3 That the respondents pay the cost of the application, including the costs of one

instructing and two instructing counsel jointly and severally the one paying the other

to be absolved;

4. Further and/or alternative relief.'

[3] The background (as I could discern it from the pleadings filed of record) to the

institution of the proceedings is briefly as follows. The applicant and the first respondent

commenced doing business with each other during the year 2013. On 18 December

2013 the parties concluded a loan agreement, a copy of which was annexed as

annexure “JG3” to the respondents’ answering affidavit. In terms of the loan agreement

the applicant would grant the first respondent a loan in the amount of US$ 8.5m. The

loan was to enable the first respondent to construct and operate a quarry.

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[4] On 25 April 2014 the parties concluded two further agreements, the one

agreement is titled Stone Products Supply Agreement, a copy of which was annexed as

annexure “JG4” to the respondent’s answering affidavit. The other agreement was titled

the Agreement for Provision of Stones Products a copy of which was annexed as

annexure “JG5” to the respondent’s answering affidavit. The respondents referred to

the agreement contained in annexure “JG5” as the Resource Agreement and I will for

the sake of convenience also refer to it as such. In terms of the Resource Agreement

the applicant was responsible to conduct the quarry operations in accordance with the

laws of the Republic of Namibia.

[5] Since the signing of the Stone Products Supply Agreement and the Resource

Agreement (i.e. April 2014), the applicant has been conducting quarry operations at the

quarry site and for that purpose, employed a number of staff members who performed

the operations for and on behalf of the applicant. During June 2015 the respondent

purported to cancel the agreements. As a result of the purported cancellation of the

agreements the respondent denied the applicant access to the quarry site. Between

June 2015 and November 2015 the parties conducted negotiations with respect to the

purported cancellation of the agreements. During this period (i.e. between June 2015

and November 2015), the respondent restored the applicant’s right to access the quarry

site.

[6] It appears that during October 2015 the negotiations between the parties broke

down. When the respondent realized that the negotiations had broken down, it (i.e. the

respondent), through its officers and employees, on 6 November 2015 denied the

applicant access to the quarry site and consequently to the equipment set out in

paragraphs 2.2 to 2.20 in the notice of motion. The respondent denied the applicant

access to the quarry site by instructing all persons performing quarry operations to stop

such operations including the operation of the equipment, prohibited the applicant to

access the quarry site and demanded that the keys required to operate the equipment be

surrendered to the officers or employees of the respondent. It is the exclusion of the

applicant from the quarry site which led the applicant to institute these proceedings.

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[7] The respondent entered a notice to oppose the applicant’s claim and on 12

January 2016 filed the answering affidavit. In the answering affidavit the respondent

raised two points in limine the first being that the applicant in its founding affidavit,

misrepresented the area it wants to be restored possession of. The respondent

contended that the area described in the founding affidavit is not a map of the quarry

site but a survey done of drilling points on the actual quarry site. Respondent thus

contended that it is impossible to garner the exact locality of the area which the

applicant wants restored to it. The second point in limine relates to the urgency of the

application. The respondent contends that the onus is on the applicant to establish the

requirements for urgency and that the Applicant has failed to discharge that onus in its

founding affidavit. On the merits, the basis on which the respondent opposes the

application is that the applicant was never in possession of the quarry site and of the

equipment set out in paragraphs 2.2 to 2.20 in the notice of motion.

The remedy sought by the applicant and the nature of that remedy

[8] The main ground on which the applicant seeks relief is on the basis of

mandament van spolie. It is now well established that the remedy of mandament van

spolie is recognised and enforced by this court.1 It is furthermore trite that the remedy is

available to possession and that its purpose is to provide robust and speedy relief

where spoliation has occurred to restore the status quo ante. In the matter of Greyling v

Estate Pretorius2. Price J explained the principle as follows:

‘When people commit acts of spoliation by taking the law into their own hands, they must

not be disappointed if they find that Courts of law take a serious view of their conduct.

The principle of law is: Spoliatus ante omnia restituendus est. If this principle means

anything it means that before the Court will allow any enquiry into the ultimate rights of

the parties the property which is the subject of the act of spoliation must be restored, to 1 Ruch v Van As 1996 NR 345 (HC)); Kuiiri and Another v Kandjoze and Others 2007 (2) NR 749 (HC);

Uvhungu-Vhungu Farm Development CC v Minister of Agriculture, Water & Forestry 2009 (1) NR 89 (HC); Kock t/a Ndhovu Safari Lodge v Walter t/a Mahangu Safari Lodge and Others 2011 (1) NR 10 (SC); Nufesha Investments CC v Namibia Rights and Responsibilities Inc and Others 2013 (3) NR 787 (HC).

2 1947(3) SA 514 (W) at 516 at 517A.

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the person from whom it was taken, irrespective of the question as to who is in law

entitled to be in possession of such property. The reason for this very drastic and firm

rule is plain and obvious. The general maintenance of law and order is of infinitely

greater importance than mere rights of particular individuals to recover possession of

their property.’ (Italicized and underlined for emphasize)

[9] The mandament van spolie is a remedy to restore to another ante omnia property

dispossessed 'forcibly or wrongfully and against his consent'. It protects the possession

of movable and immovable property as well as some forms of incorporeal property3. The

mandament van spolie is available for the restoration of quasi-possessio of certain

rights and in such legal proceedings it is not necessary to prove the existence of the

professed right, this is so because the purpose of the proceedings is the restoration of

the status quo ante and not the determination of the existence of the right4. In the matter

of First Rand Ltd t/a Rand Merchant Bank and Another v Scholtz NO and Others5 Malan

AJA said:

‘[13] The mandament van spolie does not have a 'catch-all function' to protect the quasi-

possessio of all kinds of rights irrespective of their nature. In cases such as where

a purported servitude is concerned the mandement is obviously the appropriate

remedy, but not where contractual rights are in dispute or specific performance of

contractual obligations is claimed: its purpose is the protection of quasi-possessio

of certain rights. It follows that the nature of the professed right, even if it need not

be proved, must be determined or the right characterised to establish whether its

quasi-possessio is deserving of protection by the mandement. Kleyn seeks to limit

the rights concerned to 'gebruiksregte' such as rights of way, a right of access

through a gate or the right to affix a nameplate to a wall regardless of whether the

alleged right is real or personal. That explains why possession of 'mere' personal

rights (or their exercise) is not protected by the mandament. The right held in

3 Nino Bonino v De Lange 1906 TS 120 at 122 approved in Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi 1989 (1) SA 508 (A) at 511H - 512B. Tigon Ltd v Bestyet Investments (Pty) Ltd 2001 (4) SA 634 (N) at 640H - 642D.

4 Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi 1989 (1) SA 508 (A) at 511H - 512B5 2008 (2) SA 503 (SCA).

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quasi-possessio must be a 'gebruiksreg' or an incident of the possession or control

of the property.’

[10] The learned judge quoted two cases to illustrate the difference between rights

which amount to a possession of 'mere' personal rights (or their exercise) and which is

not protected by the mandament van spolie and the right held in quasi-possessio

amounting to an incident of the possession or control of the property. The first case is

the case of Telkom SA Ltd v Xsinet (Pty) Ltd6, which case concerned Telkom's supply of

a telephone and bandwidth system to Xsinet to enable the latter to conduct its business

as an internet service provider. Telkom alleged that Xsinet was indebted to it in respect

of one of the other services provided by it and disconnected Xsinet's telephone and

bandwidth system. Xsinet successfully brought an urgent spoliation application in a

Provincial Division. On an appeal, to the Supreme Court of Appeal the judgment of the

court of first instance was overturned. The Court of Appeal said the following:

‘[13] Counsel for Xsinet conceded that Hodes AJ erred in regarding the use of the

equipment as an incident of the possession of the premises. He submitted, instead, that

Xsinet was in possession of the system, including the lines, telephones and modems

installed at its premises as well as electronic impulses, and that it made use of them in the

conduct of its business. Disconnection denied Xsinet access to the beneficial use of its

equipment, which, so the argument goes, was an act of spoliation. There is no suggestion

that Telkom interfered in any way with Xsinet's physical possession of its equipment.

There is no evidence that Xsinet was ever in possession of any of the mechanisms by

which its equipment was connected to the internet. It is not as if Telkom had entered the

premises and removed an item of Xsinet's equipment in order to effect the disconnection.

In these circumstances it is in my opinion both artificial and illogical to conclude on the

facts before the Court that Xsinet's use of the telephones, lines, modems or electrical

impulses gave it 'possession' of the connection of its corporeal property to Telkom's

system.

[14] In the alternative counsel argued that the quasi-possession of the right to receive

Telkom's telecommunication services consisting of the actual use ('daadwerklike gebruik')

of those services must be restored by the possessory remedy. This is, however, a mere 6 2003 (5) SA 309 (SCA).

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personal right and the order sought is essentially to compel specific performance of a

contractual right in order to resolve a contractual dispute. This has never been allowed

under the mandament van spolie and there is no authority for such an extension of the

remedy. ‘

.

[11] The second case used by the learned judge is the matter of Impala Water Users

Association v Lourens NO and Others7 which was an appeal against a decision of the

High Court granting a spoliation order directing the appellant to remove locks, chains

and welding works from certain sluices and to restore the flow of water to reservoirs on

the respondents' farms. There was a dispute between the parties concerning the legality

of certain water charges assessed by the appellant and relating to the costs of financing

the construction of a dam. Although proceedings to recover these charges were

pending the appellant decided to exercise its powers in terms of s 59(3)(b) of the

National Water Act 36 of 1998 and restricted the flow of water to the respondents by

locking the sluices. The first question the court had to consider was whether the rights

on which the respondents relied were merely contractual. Farlam JA said8:

‘[18] The first question to be considered, in my view, is whether the rights on which the

respondents relied were merely contractual and whether the Xsinet decision can be

applied. In my opinion, it is not correct to say that the rights in question were merely

contractual. It will be recalled that the respondents or the entities they represent were all

entitled to rights under the previous Water Act 54 of 1956, which were registered in terms

of the schedule prepared under s 88 of that Act. These rights were clearly not merely

personal rights arising from a contract. The individual respondents and the entities

represented by the other respondents all automatically, in terms of para 7.2a of the

appellant's constitution, became founding members of the appellant. It is clear therefore

that the rights to water which belonged to the individual respondents and the entities

represented by the other respondents, insofar as they were replaced by or, perhaps more

accurately put, subsumed into rights under the Act, cannot be described as mere personal

rights resulting from contracts with the appellant. It follows that, on that ground alone, the

Xsinet decision is not applicable.

7 2008 (2) SA 495 (SCA) ([2004] 2 All SA 476).8 2008 (2) SA 495 (SCA) p 512-513.

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[19] The facts of this case also differ in another material respect from those in the

Xsinet case. There it was held that the respondents' use of the bandwidth and telephone

services in question did not constitute an incident of its use of the premises which it

occupied, with the result that the disconnection by Telkom of the telephone lines to

Xsinet's telephone and bandwidth systems did not constitute interference with Xsinet's

possession of its equipment. In the present case, however, the water rights interfered with

were linked to and registered in respect of a certain portion of each farm used for the

cultivation of sugar cane, which was dependent on the supply of the water forming the

subject- matter of the right. The use of the water was accordingly an incident of

possession of each farm which was, in my view, interfered with by the actions of the

appellant's servants.’

[12] The requisites for a spoliation order are trite and may be summarized as follows:

(i) that the applicant was in possession of the property; and

(ii) that the respondent deprived him of the possession forcibly or wrongfully

against his consent.

[13] The cause for the applicant’s possession is irrelevant9. The question whether that

possession is wrongful or illegal is also irrelevant and goes to the merits of the dispute. 10

An applicant has to show not that he was entitled to be in possession, but that he was in

de facto possession at the time of being despoiled. It is not necessary that the

possession be continuous.11 In cases that concern immovable property, the continuous

presence of the applicant or its servants on the premises is not required, if the nature of

the operations which it conducts on the premises does not require his continuous

presence. Furthermore the possession need not have been exclusive possession. A

spoliation claim will lie at the suit of a person who holds jointly with others.12

9 See: Nino Bonino v De Lange 1906 TS 120 at 122.10 See: Ivanov v North West Gambling Board 2012 (6) SA 67 (SCA) at [27].11 See: Bennett Pringle (Pty) Ltd v Adelaide Municipality 1977 (1) SA 230 (E) at 233. 12 See: Bennett Pringle, supra.

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[14] An incorporeal right cannot be possessed in the ordinary sense of the word. The

possession is represented by the actual exercise of the right. Consequently refusal to

allow a person to exercise the right will amount to a dispossession of the right. In

spoliation proceedings the applicant need not prove that he has the right; what is

relevant is whether or not he has exercised the right.13

Discussion

[15] At the hearing of the application Mr. Barnard who represented the respondents

did not persist with the points in limine, in my view correctly so. It is now accepted that a

claim of spoliation is invariably an inherently urgent process14. I am also of the view that

the applicant has complied with the requirements of Rule 73(3) as required in Smith v

Salt and Another15 and has also met the requisites set out by this court in Bergmann v

Commercial Bank of Namibia Ltd and Another16.

[16] Both Mr. Tötemeyer for the applicant and Mr. Barnard agreed that the issue for

determination in this matter is simply whether the applicant had possession of the

quarry site which is worthy of protection by the mandament van spolie. In my view the

crisp question is this: did the applicant have peaceful and undisturbed use of the quarry

site, at the time respondent interfered with it and denied the applicant access to the

quarry site? Depending on the answer, the next question might be whether or not this

use, constituted a type of possession that, in law, qualified for the protection by

mandament van spolie.

[17] I have above stated that the applicant approached this court seeking an order

ordering the respondent to restore of the status quo ante that had been disturbed by the

respondent on 06 November 2015. Both the applicant and the respondent

acknowledge in their respective affidavits that the applicant has, since April 2014 until 13 See: Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi 1989 (1) SA 508 (A).14 See the unreported judgment in the matter of Three Musketeers Properties (Pty) Ltd and Another v

Ongopolo Mining and Processing Ltd and 2 Others Case No A 298/2006, delivered on 30 November 2006.

15 1990 NR 48.16 2001 NR 48 (HC).

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June 2015 been conducting quarry operations at the quarry site and had the right to

access the quarry site. The respondent states that the applicant was again granted the

right to access the quarry site between June 2015 and 06 November 2015 when, on

that day, the respondent denied the applicant access the quarry site.

[18] I am therefore of the view that the applicant is not suing for the realization or

enforcement of a right in the widest sense. What the applicant is seeking is the

restoration of the exercise of the specific right (i.e. the right to access the quarry site

and the equipment on the quarry site) that has been unlawfully taken away from him.

What is sought is not specific performance of a contractual obligation as Mr. Barnard

argued; but the restoration of the factual position that had obtained, until the respondent

intervened. That factual position bears repeating: The applicant had the right to access

the quarry site since 2014 and the quarry site was accessible or used by both the

applicant and the respondent and their employees, freely until 6 November 2015. On

that day (i.e. 6 November 2015) the respondent changed this state of affairs in respect

of the applicant. The respondent blocked applicant's right to use the quarry site and the

equipment on the quarry site and, by his conduct, claimed exclusive control over it.

[19] The right to use or to access the quarry site could also only be exercised by

physically being present on the quarry and by having physical control over the

equipment on the quarry site. The right which the applicant had is no doubt an incident

of the possession or control of the property. It is in my view inconsequential as to how

one characterizes or describes the right that had been exercised by the applicant, it

came to an abrupt stop and that constitutes a deprivation perpetrated by the

respondent, and this without invoking an order of a court of law. It is a classic case of

taking the law into one's own hands and as I said in the unreported judgment of Ludik v

Keeve & Another17 this is what the remedy of mandament van spolie aims to prohibit.

The questions I posed above in paragraph [16] of this judgment are answered in the

affirmative namely that the applicant did have peaceful and undisturbed use of the

quarry site and that the right to use the quarry site qualifies for protection by the remedy

of mandament van spolie.

17 Case No. A 316/2015 [2015] NAHCMD delivered on 20 January 2016.

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[20] No arguments have been advanced as to why costs should not follow the result.

The first respondent should therefore be held liable for the costs of the application. In

the premises, I make the following order:

1 The non-compliance with the forms and service provided for by the rules of this

court is condoned and the application is heard on an urgent basis as is envisaged

in rule 73(3) of the High Court Rules.

2 The first and second respondents are ordered to forthwith restore the applicant's

peaceful and undisturbed possession ante omnia in and to;

2.1 the property described as: the quarry site located at Walvis Bay, and more

fully depicted as per annexure ‘J ‘ to the applicant’s founding affidavit

together with all stone products stored or stockpiled thereon; and

2.2 the following equipment:

2.2.18. Three CAT336D excavators;

2.2.19. One CAT336D2 excavator;

2.2.20. One DX800 drilling rig ;

2.2.21. One AirROC D50 downhole drill;

2.2.22. One XRVS1050 movable air compressor;

2.2.23. One ZL50GN loader;

2.2.24. One SD 22 bulldozer;

2.2.25. Two breaking hammers;

2.2.26. Five SX3255DR384R dump trucks more fully described in

annexure “B” to the applicant’s founding affidavit;

2.2.27. One SX5255GSSDN464 water distributor;

2.2.28. Three generator sets 650 KW;

2.2.29. Two stone crusher plants;

2.2.30. One ZL500N loader;

2.2.31. One generator set 80 KW;

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2.2.32. One generator set 400 KW ;

2.2.33. One SX3255DR384R dump truck; and

2.2.34. One loadometer.

3 The first and second respondents, jointly and severally, the one paying the other to be

absolved, are ordered to pay applicant's costs, such costs are to include the costs of

one instructing and two instructed counsel.

---------------------------------SFI Ueitele

Judge

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APPEARANCES:

PLAINTIFF: R Tötemeyer ((with him D Obbes)

Instructed by Chris Brandt Attorneys

DEFENDANT: P Barnard

Instructed by Nambahu Associates