REPUBLIC
OF NAMIBIA

CASE
NO. A 164/2011

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

WARTHOG
LOGISTICS
…....................................................................1^ST
APPLICANT

FREDERICK
JACOBUS PETRUS CARSTENS
…...............................2^ND
APPLICANT

and

AUTO
TECH TRUCK & COACH CC
…............................................1^ST
RESPONDENT

RAINIER
ARANGIES
…....................................................................2^ND
RESPONDENT

CORAM:
DAMASEB, JP

HEARD
ON: 12^TH JULY 2011

RELEASED
ON: 15^th JULY 2011

________________________________________________________________

REASONS

DAMASEB,
JP: [1] The applicants approached this Court on an
urgent basis seeking a mandament van spolie. After hearing
oral argument on 12 July 2011, I granted an order in the following
terms:

1. Condoning
   the applicant’s non-compliance with the forms and service as
   provided for in the Rules and authorizing the applicants to bring
   this application on an urgent basis as contemplated in Rule 6(12) of
   the Rules of Court.

   
   

2. That
   the respondents be ordered to forthwith restore to the applicants
   their peaceful and undisturbed possession of the motor vehicles, to
   wit:

   
   

1. a
   Freightliner truck with registration number CFG28602; and

   
   

2. a
   box body semi-trailer with VIN number AAPV0120350387378

   
   

ante
omnia failing which the Deputy Sheriff of the above Honourable
Court is hereby authorized and directed to attach and hand over to
the applicants the aforesaid motor vehicles.

3. The
   respondents are ordered to pay the costs of the application.’

   
   

[2]
I said then that my reasons would follow. What follow are the
reasons.

[3]
The following facts are fare common cause: The applicants are the
owners and, until the alleged date of forceful dispossession, bona
fide possessor of freightliner truck CFG28602, and a box body
semi-trailer AAPVO12035038737 (‘the subject vehicles’).
It is also common cause that on 21^st June 2011 at Tsumeb,
the respondents took possession of the subject vehicles while under
the control of the driver of the applicants, one Bartlett.

[3]
The Issue Defined

The
issue calling for decision in this case is whether on 21 June 2011
the respondent forcefully – without the applicant’s
permission or consent – took possession of the subject
vehicles.

[4]
The respondents’ case is that on 21 June 2011, the applicants’
driver, acting as agent of the applicants, delivered the subject
vehicles to the respondents for repair and that as a consequence of
effecting repairs thereon, they had acquired an improvement lien over
the subject vehicles to the extent of their invoice in the amount of
N$47 819.89 that they are entitled to payment of the same before they
can release the said vehicles. In support the respondents rely on a
document written by the driver, Bartlett, as evidence of (i) their
having come lawfully in possession of the vehicles and (ii) the
mandate received to effect repairs to the vehicles in question. That
note, written at the local police station in Tsumeb, reads as
follows:

“I
am a truck driver for Warthog Logistics. On 21/06/2011 my truck broke
down. I stopped at Auto Tech Truck and Coach for repairs on
21/06/2011 at 06h00 in the morning when Auto Tech Truck and Coach
opened I gave instruction to repair the truck after I slept the
previous night in front of the workshop.”

[5]
The applicant’s critical averments in support of the mandament
are as follows:

“On
or about 20 June 2011 and at Tsumeb the respondents wrongfully and
unlawfully deprived me of my peaceful and undisturbed possession of
the aforesaid vehicles by forcefully removing same from a driver who
is in the employ of the first applicant and who utilized the vehicles
within the course and scope of his employment with the first
applicant…Thereafter the second respondent took the aforesaid
vehicles to his place of business Tsumeb were I have learnt the
vehicles are currently parked. Immediately upon having been notified
of the respondents’ actions the first applicant’s
financial manaqer, Dawid de la Guerre contacted one Celeste Enslin
who is employed or affiliated with the respondents. She indicated
that the vehicles were taken by the respondents and will be retained
until such time as the outstanding balance of the repairs and
recovery recovery of the Scania vehicle is settled in full. It became
clear to me that the respondents had taken the vehicles for the
purpose of having leverage in order to force the first applicant to
make certain payments to him in terms of the agreement between the
parties …’

[6]
The background to the above allegation is that in May 2011 the 1^st
respondent repaired
a Scania truck of the 1^st
applicant. In
respect of those repairs the applicants still remain indebted to the
1^st
respondent as the
remainder of the debt will only be paid - as agreed - at the end of
August 2011. The applicants’ version is that the respondents
took possession of the subject vehicles in order to put pressure on
the applicants to pay off that
debt while the
applicants are not in default yet. They maintain that they never
authorized the respondents’ taking possession of the subject
vehicles or their doing repairs thereon. They also maintain that not
only was Bartlett coerced in authoring RA1, but that he had no
authority to contract with the respondents to do any repairs to the
subject vehicles.

The
onus

[7]
The applicant bears the legal and evidential onus,
on balance of probabilities, to (i) establish that it was in peaceful
and undisturbed enjoyment of the subject vehicles and that (ii) same
was forcefully removed by the respondents. The respondents bear the
legal and evidential onus
in respect of the
improvement
lien they
rely on to justify the retention of the subject vehicles.¹

The
evidence

[8]
The second applicant deposed to the founding affidavit on behalf of
the applicants and relies on e-mail correspondence between the
parties as proof that the respondents unlawfully took possession of
the subject vehicles to exact payment of a debt not yet due. The
e-mail in question occurred on 21 June 2011, the very day the subject
vehicles came in the possession of the respondents. The first e-mail
(at 8: 16 AM on 21 June ) was sent by one Celeste Enslin of the
respondents to one Dawie de la Guerre of the applicants referring him
to the “FINAL ACCOUNT TO BE SETTLED” and that the “Truck
will be released as soon as funds are REFLECTING AND CLEARED in our
bank account.” In answering this e-mail, de la Guerrre states
in his e-mail (at 9: 37 on 21 June) that the debt in question was
subject to ‘a repayment period of 3 months (1 June 2011 to 31
August 2011). 'In it the author makes no reference to the subject
vehicles detained by the respondents that very morning. From the
answer to that e-mail letter it however becomes clear that the two
people had spoken about the subject vehicles earlier: Celeste’s
answer to de la Guerre (at 10: 30) is in the following terms):

“Repayment
of three months is NOT R50 000.00 per month! The FULL amount as on
today’s final account SHALL APPEAR IN MY ACCOUNT AND BE CLEARED
BEFORE THE VEHICLE WILL LEAVE!!! ‘’

[9]
Based on the above correspondence the applicants allege that the
respondents had “taken the law into their own hands and are,
in fact, executing without judgment’’.

[10]
Carsten’s avers that they next approached a legal practitioner
who, on 28 June 2011, wrote a letter of demand to the respondents
demanding the return of the vehicles by no later than 29 June failing
which urgent relief will be sought. Apparently, upon receiving this
letter the respondents engaged the services of legal practitioner Mr
Roets who, it appears, had a discussion with the applicant’s
legal practitioner. The latter then wrote a letter to Mr Roets on 29
June recording a discussion between the two stating:

“The
above, as well as our telecon on even date refer. We confirm acting
on behalf of Warthog Logistics CC, as well as Mr Frederick Carstens
…In light of our aforementioned conversation, during which you
disclosed your client’s intention of bringing an application to
found jurisdiction over the vehicles …, we hereby advise that
our clients consent to the jurisdiction of the High Court of Namibia
for purposes of such application. Furthermore, our clients agree that
all processes therein may be served upon our offices in light thereof
that our clients do not have offices within the Republic of Namibia.”

[11]
On 30 June 2011 the 2^nd applicant deposed to an affidavit
to initiate the present proceedings which were served on the
respondents on 1 July 2011.

[12]
The respondents’ answering affidavit is deposed to by the 2^nd
respondent. He states in respect of the applicants’ allegation
that the subject vehicles were forcefully detained that:

‘The
aforesaid truck and trailer experienced a breakdown on the 21^st
of June 2011 whereupon the first respondent was approached by the
driver of the truck and trailer to assist him with the necessary
repairs. I respectfully refer to a statement of the driver dated 30
June 2011 annexed hereto marked “RA1”, confirming the
circumstances that occurred as a result of the breakdown so
experienced. Pursuant to the aforesaid repairs were effected to the
truck and trailer in question as per the driver’s instructions
at the workshop of the first respondent. This was done on the premise
of an oral agreement concluded between the first respondent and the
first applicant, the latter duly represented by the said Mr Bartlett,
in terms of which the first respondent was employed to render such
repair services to the truck and trailer in question against payment
of the services and repairs so effected to same. Subsequently and
pursuant to such an agreement an invoice in the sum of R47 819-89 was
rendered for payment of the repairs and services so effected to the
truck and trailer. Although the first respondent immediately
commenced with repairs to the truck and trailer upon their arrival,
the repairs could only be completed by late last week, since the
first respondent was awaiting the arrival of parts from South Africa.
Further it has since transpired that the trailer is also under
attachment at the behest of Namibian Police Force inter alia for the
reason that they have discovered that there has been tampering with
the vin and chassis numbers. I respectfully refer to the notice of
attachment emanating from the Namibian Police Force dated 30 June
2011, annexed here to marked “RA3”. Hence, it follows
that the applicants should have joined the Namibian Police in these
proceedings insofar as the trailer is concerned and in any event will
not be able to obtain the release thereof pending such attachment. By
reason of the aforesaid I am advised and respectfully submit that the
first respondent has an improvement/repairs lien in and respect to
the truck and trailer pending payment of the invoice as aforesaid. By
virtue of same the first respondent is entitled to retain possession
of the said truck and trailer until proper payment has been received
for the full amount of the invoice.’

[13]
This deponent denies forcefully dispossessing the driver of the truck
and relies on RA1 as proof that it was received voluntarily. To deal
with the e-mail correspondence of 21 June the deponent states:

“Safe
for admitting that one Celeste Enslin spoke to Dawid de la Guerre, I
respectfully point out that the account that had to be settled was
that reflected in “RA2” and not the account pertaining to
the previous arrangement. As stated above, the account remains
outstanding. I respectfully refer to her confirmatory affidavit
annexed here to marked “RA5”.

[14]
The implication is very clear: Carstens and Celeste Enslin are here
suggesting that in the latter’s email of 21 June she referred
to ‘RA1’ and not to the unpaid account in respect of the
Scania.

Analysis

[15]
Where there are disputed facts I must accept the version of the
respondents unless such version is so farfetched or inherently so
improbable that it can be rejected on the papers. I have come to the
conclusion that the respondents' version that the subject vehicles
were given to them voluntarily by the respondents's driver for
repairs and that they, having effected the repairs, acquired an
improvement lien over the subject vehicles is farfetched and stands
to be rejected on the papers. I set out below the facts and
circumstances that led me to that conclusion.

[16]
There is no reply to the applicants’ legal practitioner’s
letters - both to the respondents directly or to Mr Roets acting for
them. In the letter of demand (of 28 June) the applicants’
lawyers make clear that the subject vehicles were wrongfully retained
by the respondents and that the applicants wanted them back
immediately and that failing such return they hold instructions to
approach court for relief. In the letter to Mr Roets (of 29 June) the
applicants’ lawyers record that what Mr Roets conveyed is that
the subject vehicles were being kept in order to seek relief founding
jurisdiction. The implication being that the respondents’
lawyers made no reference either to the alleged lawful manner in
which the respondents came in possession of the subject vehicles, or
that they were being kept on account of an improvement lien. In the
latter respect, what is clear is that the letter records a
conversation between two lawyers acting for the parties and that Mr
Roets, acting for the respondents, in such conversation made no
reference to the fact that the subject vehicles are being retained by
his clients on account of an improvement lien. So, we are here faced
with a situation where not only did Enslin Celeste in the email
messages of 21 June not make reference to an improvement lien or the
respondents having come in possession of the subject vehicles at the
behest of an agent of the applicant, but that, even as late as 29
June (just a day before the applicant’s founding affidavit is
deposed), when a legal practitioner engaged by the respondents
discusses the subject vehicles, those two critical averments are not
relied on.

[17]
Two principles of the common law are implicated in that regard: the
first is a vicarious admission (by conduct) by Mr Roets and Celest
Enslin that the respondents did not receive the trucks from Bartlett
lawfully nor that Bartlett had surrendered the vehicles to the
respondents for repair.as is observed by Zeffert and Paizes,
The South African Law of Evidence, 2^nd
Ed at p 493: “when
a person, A, Makes a statement( or performs Conduct) that is contrary
to his or her interests, it is, as a general rule, admissible against
that person as an admission’’ The second is that an
adverse inference may be drawn by a Court where a person fails to
mention the existence of a fact counting in his favour or fails to
deny an adverse allegation against them when a reasonable person
would expect them to have done either of those things. The
principle was summed up by Miller JA in McWilliams v First
Consolidated Holdings (Pty) Ltd: 1982 (2) SA 1 (AG) at 10 E-F as
follows:

‘...in
general, when according to ordinary commercial practice and human
expectation firm repudiation of . . . an assertion would be the norm
if it was not accepted as correct a party’s silence and
inaction, unless satisfactorily explained, may be taken to constitute
an admission by him of the truth of the assertion, or .it least will
he, an important factor telling against him in the assessment of the
probabilities and in the final determination of the dispute.’

[18]
There is no mention in the e-mail between Enslin and de la Guerre of
the respondent having been given the trucks for repair. This is such
a significant fact that it is reasonable to expect that the
respondent would have mentioned it at the earliest opportunity at
which the suggestion was made by the applicant that the respondents
are in illegal possession of the subject vehicles. The fact that the
subjects of spoliation were being kept as a lien, is not just another
reason for the retention of the subject vehicles, it is the
reason for its retention. It is far-fetched that Enslin would not
have mentioned that fact at the very first opportunity that presented
itself. Not only that, even the respondent’s legal practitioner
makes no mention of the reason for the retention, in response to the
letter of demand.

[19]
I remind myself that the respondents seek to retain both the truck
and the trailer. Not only do the respondents not give any explanation
of the nature of the breakdown and the nature of the repairs they
were asked by Bartlett to fix, but ‘RA1’ only makes
reference to repairs to the truck - not the trailer. On what basis do
the respondents seek to justify a lien over the trailer? The police
document to which the respondents refer is not only hearsay, but it
does not prove the assertion the respondents make that the trailer
was detained by the police because its VIN number was interfered
with. The document (dated 30 June) provided as proof of that
allegation states that in the opinion of the official who prepared it
the Trailer Cy 334545’s ‘general condition’ ‘is
not roadworthy’ and that the vehicle ‘may only continue
to be used …after repair to the testing station’. As can
be seen, the date of 30 June falls within the period in which the
trailer was in the possession of the respondent. Absent an
explanation why it became necessary for the respondents to invite the
police to inspect the trailer to make such a determination, it adds
credence to the applicants’ version that the respondents were
determined to find some reason to justify not having to release the
trailer and to place pressure on the applicants to pay off the
portion of the debt which was not due and payable. Similarly, the RA1
note in which Bartlett confirms the alleged instructions for the
repair of the truck was authored on 30 June 2011, the very day on
which the police’s detention document was done.

[20]
The unambiguous references in the 21 June email by Enslin Celeste
that the vehicles will only be released if the debts outstanding in
respect of the May repairs are paid, compared to her clearly
untruthful allegation under oath that ‘RA1’ is the unpaid
invoice she referred to in her email of 21 June 2011, in my view
strengthens the applicant’s version that the lien claimed by
the respondents is a farce. In view of the exchange of letters
between the parties, it is clear that the respondents knew the nature
of the proceedings that were intended. The allegations proferred in
support of the lien are therefore farfetched and stand to be rejected
on the papers.

[21]
It is not said what repairs had as at 21 June 2011 been effected. The
only thing that is said is that the parts were being awaited. What I
find curious it that the respondents knew on 21 June 2011 that the
applicants wanted the trucks released, i.e. the day on which they
took possession of them. It is not explained in the papers on what
basis they continued beyond 21 June to order parts for repairs which
– it must have been clear on 21 June – the owners of the
vehicles did not want done. Even assuming that Bartlett had
voluntarily surrendered the vehicles as alleged, would the exchanges
of 21 June not have put them on notice that the applicants had not
consented to the repairs of the trucks? Why proceed, as alleged, to
order parts in respect of vehicles that the applicants want restored
immediately?

[22]
All these circumstances in my view add considerable weight to the
applicant’s version that the note by Bartlett was not voluntary
and that the lien sought to be justified by means of RA1 is a ruse.

[23]
I am satisfied that the applicants established that it is more likely
than not that the respondents had embarked upon a stratagem to create
a basis for retaining possession of the subject vehicles when they
realized that they were in law not entitled to retain the vehicles as
‘security’ for the payment of the debt owing to them as a
consequence of effecting repairs to the applicants’ Scania in
May.

[24]
Even if I were to find, as suggested by Mr Strydom, that on account
of the paucity of elaboration by Bartlett as to the circumstances in
which the truck and trailer were taken from him, the applicants had
failed to demonstrate the forceful removal of the subject vehicles by
the respondent, it was still incumbent upon the respondents to
establish their lien on a balance of probabilities. The absence of
proof of forceful removal of the subject vehicles does not
necessarily translate to proof of the existence of the respondents'
lien. The subject vehicles are the property of the applicants and
were in their possession at the material time and the applicants
would be entitled to possession thereof even if they failed to proof
that on the 21^st of June 2011 same were forcefully removed
by the respondents. The only circumstance in which the respondents
would be entitled to retain property which – it is common cause
– is not theirs but that of the applicants, would be if they
had some right in law to retain it: in this case the alleged lien.
The evidence in the form of the e-mail correspondence between the
parties, the letters of demand and the respondent’s answer
thereto by a legal practitioner, and the knowledge by the respondents
that the applicants had already as at 21^st June demanded
back possession of the subject vehicles, all point the conclusion
that the respondents had failed to demonstrate the presence of a lien
in respect of the subject vehicles.

[25]
As regards Mr Strydom’s suggestion in argument that the Court
retains a discretion to release the subject of spoliation subject to
payment of security into Court pending the filing and determination
of an action for the recovery of the amount in respect of the which
the lien is held, I agree with the submission made by Ms Van Der
Westhuizen that the Court can only do so if it is satisfied that the
respondents had proved a lien in respect of the subject vehicles. The
case relied on by Mr Strydom, Lamontville African Transport Co.
(Pty) Ltd v Mtshali 1953(1) SA 90 clearly demonstrates that (i)
the improvement lien claimed must be established and that (ii) the
lien claimed must have a relationship to the item in respect of which
the lien is claimed. Not only do the respondents fail to establish
just what it is they were mandated to repair on the truck, but they
failed t show the link between the alleged lien and the trailer. The
jurisdictional fact for the exercise of my discretion has therefore
not been established and nothing more needs to said in regard to the
suggestion made by Mr Strydom.

[26]
I have therefore come to the conclusion that the applicants
demonstrated on a balance of probabilities (i) that they were in
peaceful and undisturbed enjoyment of the subject vehicles on the 21
June 2011, and (ii) that the respondents – without any just
cause for doing so – took possession of the subject vehicles
and that the applicants are therefore entitled to the relief they
seek.

[27]
Although the notice of motion sought a special costs order, the
applicants did not traverse that by way of evidence in the affidavits
to enable the respondents to deal therewith. The issue was also not
elaborated on in argument for me to test the basis on which it was
being sought. I accordingly did not consider it appropriate to grant
such an order.

[28] I
declined Mr Strydom’s request that I strand the matter down and
allow the respondents to file a fourth set of papers to deal with
paragraph 3.3 and 3.4 of the applicants replying affidavit. It is
trite law that the court may exercise its discretion in granting
leave for a fourth set of papers to be filed only in ‘exceptional
circumstances’ or in ‘special circumstances’ or if
the ‘court considers such a course advisable’.²
The concerned
paragraphs read as follows:

‘3.3
I therefore respectfully submit that the invoice (RA2 to the
answering affidavit) which is incidentally also dated 30 June 2011,
is no more that a fabrication by the respondents in order t justify
their unlawful detention of the vehicle in question

3.4
I also respectfully submit that annexure RA1 to the answering
affidavits was written by Mr. Bartlet on instruction of Ms Enslin as
it was indicated to him by both the second applicant and Ms Enslin
that he needed to do this in order to avoid being deported from the
Republic of Namibia as his was overstaying hi visa due to the
retention of the vehicles by the respondents. As Mr. Bartlet felt
intimidated (due to the Namibian Police and Mr. Arangies’
presence) he wrote and signed the document as indicated to him by Ms
Enslin….”

The
applicants had as early as 21 June 2011 conveyed to the respondents
that the latter were unlawfully detaining the subject vehicles: they
say as much in their founding papers. It is clear from the
applicants’ papers that they did not know until the answering
papers were filed that the respondents relied on a lien for repairs
allegedly done. The denial for the existence of a lien is, in my
view, an aversion that RA1 is not genuine and that Bartlet had not
voluntarily surrendered the subject vehicles to the respondents. The
applicants therefore do not in paragraph 3.3 and 3.4 raise any new
matter that the respondents could not have been expected to
anticipate. For that reason, I find no special circumstance that
would justify the respondents’ basis to file a fourth set of
papers.

[29]
It is for these reasons that I made the order earlier referred to.

_______________________

DAMASEB, JP

ON BEHALF OF THE
APPLICANTS: Mrs C E Van der Westzhuizen

Instructed by:
Engling, Stritter & Partners

ON BEHALF OF THE
RESPONDENTS: Mr A Strydom

Instructed By: Chris
Roets Legal Practitioners