Salcarb KZN (Pty) Ltd v Ikwezi Mining (Pty) Ltd (2024/043364) [2024] ZAGPJHC 434 (6 May 2024)

The case involves a dispute over access to and use of a property, the Dundee Coal Mine, between Salcarb KZN (Pty) Ltd (the applicant) and Ikwezi Mining (Pty) Ltd (the respondent). The applicant, Salcarb KZN, sought a spoliation order to restore its possession and rights to the property, which it claimed had been unlawfully interfered with by the respondent, Ikwezi Mining.

According to the founding affidavit of Ms. Vermaak, the general manager of Salcarb KZN, the applicant had been conducting its business at the Dundee Coal Mine property under an agreement with Ikwezi Mining's predecessor since 2014. In 2018, Salcarb KZN stepped into the shoes of its predecessor. Ikwezi Mining purchased the mining business and property in 2022, with knowledge of the lease agreement.

Disputes arose between the parties, and on April 8, 2024, Ikwezi Mining allegedly took steps to deprive Salcarb KZN of its possession and rights at the property. Ikwezi Mining instructed its staff to prevent Salcarb KZN from bringing in or taking out any material or equipment, effectively blocking their trucks from entering or leaving the site. This action was taken without a court order.

Salcarb KZN sent a letter of demand to Ikwezi Mining on April 19, 2024, but received no response. Between April 8 and April 19, Salcarb KZN attempted to negotiate a resolution but failed. As a result, Salcarb KZN initiated the urgent court application on April 22, 2024, seeking to restore its possession and rights to the property.

In response, Ikwezi Mining, in its answering affidavit by Mr. Bonani Ndlovu, a director, relied on misjoinder and denied any business or contractual relationship with Salcarb KZN. Ikwezi Mining also denied owning or having any involvement with the Dundee Coal Mine property.

Salcarb KZN, in its replying affidavit, presented evidence to substantiate its claims, including email communications and WhatsApp messages involving Ikwezi Mining's staff and directors, such as Mr. Santanu Chakraborty, Mr. Nitin Agrawal, and Mr. Prosper Nkala. These communications indicated Ikwezi Mining's ownership of the property and their instructions to prevent Salcarb KZN's access.

The court found that Ikwezi Mining's affidavits were evasive and failed to address key points of substance. The court emphasised the importance of witnesses providing the whole truth and not merely bare denials. The court concluded that Salcarb KZN had been in peaceful and undisturbed possession of its business on the property and that Ikwezi Mining had interfered with its rights without following due legal process.

The court granted the spoliation order, restoring Salcarb KZN's possession and rights to the Dundee Coal Mine property. The order included allowing Salcarb KZN's vehicles to enter and leave the property and to remove their equipment and material. The court also awarded costs to Salcarb KZN.

The core legal principle underlying the decision in this case is the concept of spoliation and the restoration of the status quo ante. The court found that the applicant, Salcarb KZN, was in peaceful and undisturbed possession of its business on the Dundee Coal Mine property and that the respondent, Ikwezi Mining, interfered with its rights without following due legal process.

The court applied the principle that a person in possession of property may not be deprived of that possession without due process of law. The mandament van spolie, or spoliation order, is a remedy available to restore the status quo ante, or the situation as it was before the unlawful interference. The court's focus was on determining whether Salcarb KZN was in possession of the property and whether Ikwezi Mining interfered with that possession, rather than on the underlying contractual arrangements or rights and obligations of the parties.

The court stressed that the purpose of a spoliation order is not to finally determine the rights and obligations of the parties but to restore possession and the position the parties were in before the spoliation occurred. The court also highlighted the requirement for witnesses to provide truthful and complete evidence, addressing the points of substance and avoiding evasiveness or misleading half-truths.

In conclusion, the court granted the spoliation order, restoring Salcarb KZN's possession and rights to the property, and awarded costs in favor of Salcarb KZN.

Here is a summary of the case law relied on by the court in its reasoning process, along with the neutral citation:
Wightman t/a JW Construction v Headfour (Pty) Ltd and Another 2008 (3) SA 371 (SCA): This case emphasized the importance of witnesses providing genuine and unambiguous responses to disputed facts. The court noted that bare denials may not be sufficient, especially when the disputed facts lie within the knowledge of the responding party.
Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T)
Peterson v Cuthbert & Co Ltd 1945 AD 420
Soffiantini v Mould 1956 (4) SA 150 (E)
Engar v Omar Salem Essa Trust 1970 (1) SA 77 (N)
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd  1984 (3) SA 623 (A)
Tsenoli v State President of the Republic of South Africa 1992 (3) SA 37 (D)
Dennegeur Estate Homeowners Association and Another v Telkom SA SOC 2019 (4) SA 451 (SCA): This case defined possession as a question of fact and explained that exclusive possession is not required for a spoliation order.
Blendrite (Pty) Ltd v Moonisami 2021 (5) SA 61 (SCA): This case confirmed that a spoliation order is a possessory remedy, and the purpose is to restore the status quo ante without determining the underlying rights and obligations of the parties.
Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi 1989 (1) SA 508 (A): This case emphasized that the purpose of a spoliation order is to restore the status quo ante and that the court does not concern itself with the rights of the parties before the spoliation.
Nienaber v Stuckey [1946] AD 1049: This case recognized that exclusive possession is not required for a spoliation order and that the mandament van spolie can be used to restore quasi possessio, such as the exercise of a right to enter upon property.
FirstRand td t/a Rand Merchant Bank and Another v Scholtz NO and Others 2008 (2) SA 503 (SCA): This case clarified that an applicant for a spoliation order need not prove that they have a right to possess the property but merely that they exercised such a right.
Zulu v Minister of Works, KwaZulu, and Others 1992 (1) SA 181 (D): This case was cited in relation to quasi possessio but no specific details were provided.

Jivan v National Housing Commission 1977 (3) SA 890 (W): This case discussed the requirement for a spoliation application to be brought within a reasonable period.
Nienaber v Stuckey [1946] AD 1049: This case was cited for the principle that a spoliation application must be brought without undue delay.
Le Riche v PSP Properties CC 2005 (3) SA 189 (C): This case was cited for the principle that an applicant is not dilatory when they take reasonable steps to seek the cooperation of the respondent before bringing an urgent application.
Nelson Mandela Metropolitan Municipality v Greyvenouw CC 2004 (2) SA 81 (SE): This case established that an applicant is not dilatory when they take reasonable steps to avoid having to approach the court for relief.
Stock v Minister of Housing 2007 (2) SA 9 (C): The applicant must not be the author of the delay in bringing the application.

Kumah v Minister of Home Affairs 2018 (2) SA 510 (GJ): The applicant must not be the author of the delay in bringing the application.