THE
HIGH COURT OF SWAZILAND
CIV.
CASE NO.1076/01
In
the matter between:
SMODERN
LUKHELE APPLICANT
VS
NKOSINGIPHILE
DLAMINI 1st RESPONDENT
HERMON
SAMBO GULE 2nd RESPONDENT
CORAM
:
MASUKU
J.
For
Applicant : Mr
J.S. MAGAGULA
For
1st Respondent : Mr
M.M. NXUMALO
For
2nd Respondent : MR
M.MABILA
JUDGEMENT
27th
JUNE, 2001
In
this opposed application, filed under a Certificate of Urgency, the
Applicant prayed for inter alia: -
1.
That the forms of service and time limits prescribed in the Rules of
Court be dispensed with and this matter be dealt with as an urgent
application.
2.
That the Sheriff or his Deputy in the Hhohho District and/or members
of the Royal Swaziland Police from the Pigg's Peak Police Station be
authorised to seize from the Second Respondent or any other person in
possession thereof a certain motor vehicle, to wit; Mercedes Benz 613
Mini Bus 1986 model.
2
Registration
Number - SD 377 IL
Engine
Number - 36900026028688M
Chassis
Number - 31040426000085
3.
That the said Sheriff or his Deputy and/or the said members of the
Royal Swaziland Police Force keeps the said motor vehicle in a place
of safe custody pending the final determination of this application.
4.
That a rule nisi do issue calling upon the Respondents to show cause
on a day to be determined by this Honourable Court, why;-
4.1.
The said motor vehicle should not be returned to the Applicant
herein,
4.2.
The Respondents should not be ordered to pay jointly and severally
the costs of this application to the Applicant on the attorney and
own client sale.
The
matter appeared before Maphalala J. on the 11th May 2001 and a rule
nisi was issued in terms of prayers 4, 4.1 and 4.2 of the Notice of
Application and was returnable on the 25th May 2001. An undertaking
was made by or on behalf of the 2nd Respondent not to dispose of or
alienate the said vehicle pending the finalisation of this matter.
The
Applicant, in his papers alleges that in October 2000, he entered
into a verbal agreement of sale with the 1st Respondent and in terms
whereof the vehicle described above was sold to him for E45, 000.00.
It was further agreed that the Applicant would pay an amount of
E20,000.00 as a deposit, which he did. The Applicant contends that he
only received the vehicle towards the end of December, 2000 for the
reason that the 1st Respondent was effecting repairs on the merx.
It
is further alleged by the Applicant that on delivery of the merx, it
was still not in a good condition, necessitating him effecting
further repairs, particularly on the gearbox. On the 24th April,
2001, the Applicant was informed by the mechanic who was attending to
the
3
repairs
that the 2nd Respondent, accompanied by another man came to him and
towed the vehicle away and parked it at the former's home. The matter
was thus reported to the Royal Swaziland Police who talked to the
parties. The Applicant alleges that he is the owner of the merx as
delivery had been effected and further alleges that the Respondents
had no right to take the motor vehicle away.
The
1st Respondent on the other hand raised a number of points in limine
the majority of which were not argued as they are of no consequence
at this stage. The only point worth considering is that in the
absence of the affidavit of the motor mechanic from whom it is
alleged that the vehicle was taken, the application is defective.
However,
the gravamen of the 1st Respondent's defence is that he denies a sale
ever taking place as alleged by the Applicant. According to him, a
lease agreement (whether oral or verbal is not clear) was entered
into between him and the Applicant which was for a duration of six
months. In terms of the said agreement, the Applicant would pay an
amount of E20,000.00, presumably as rental of the vehicle over the
period of six (6) months.
The
1st Respondent alleges further that in or about the middle of April,
2001, he was approached by the 2nd Respondent who wished to purchase
the vehicle. The vehicle was then sold to the 2nd Respondent for an
undisclosed pretium. The 1st Respondent denies that he unlawfully
removed the vehicle from the Applicant regard being to the fact that
the six (6) month lease period had expired and he was entitled, he
alleges, to repossess the vehicle without an Order of Court.
The
2nd Respondent, on the other hand, alleges that he was approached by
the Applicant offering to sell the vehicle to him. On enquiry about
the registration documents, it transpired that these were in the 1st
Respondent's possession and who sold the bus and caused same to be
handed over to the 2nd Respondent. The 2nd Respondent alleges that he
believed that the 1st Respondent was the owner of the bus as its
registration documents were in his possession. The 2nd Respondent
further states that he effected repairs to the bus and has restored
it to a good running condition.
During
the argument of the matter, three issues arose for determination,
namely: -
4
whether
or not there is a material dispute of fact;
whether
the Applicant has satisfied the requirements of the mandament van
spolie; and
whether
the 2nd Respondent is a bona fide possessor who is entitled to
retention of the merx until he is paid an amount equivalent to costs
of improvement.
I
now propose to deal with the issues that have arisen ad seriatim:-(a)
whether or not there is a dispute of fact.
At
first glance, I raised this issue with the parties as in my view,
there was a material dispute of fact regarding whether the merx was
sold or leased by the 1st Respondent to the Applicant. This appeared
to have been central to the resolution of the dispute. Mr Magagula
for the Applicant however argued that the dispute of fact was
irrelevant to the resolution of the matter.
In
his spirited address, he argued that whatever the nature of the
agreement:- whether a sale or a lease agreement, the 1st Respondent
had no right to repossess the merx. If it was a sale, clearly, breach
of the contract of sale had not been proved and there was no Court
Order authorising him to repossess the vehicle. If on the other hand
it is proved that there was a lease agreement in place, according to
the 1st Respondent, the lease was for a period of six (6) months
which had not elapsed at the time of repossession, regard being had
to the date of delivery i.e. December, 2000, which date was not
denied by the 1st Respondent.
I
entirely agree with Mr Magagula's argument. The dispute does not
constitute a bar to a resolution of this matter. There is in my view
no necessity for referring this matter to viva voce evidence in view
of the foregoing. Clearly, the 1st Respondent had no document
authorising him to repossess the vehicle, even assuming that his
story that a lease agreement was in place is correct. In this case,
the six month period had not elapsed in which case an Order of Court
would have been necessary to authorise the 1st Respondent to
repossess the merx failing which he could be adjudged guilty of
taking the law into his own
5
hands.
I find therefor that notwithstanding the presence of the dispute, it
is my view that it is not central to and constitutes no bar to the
Applicant obtaining the relief he seeks, provided of course that the
requirements for the mandament sought are satisfied.
(b)
whether Applicant has satisfied requirements for a mandament van
spolie.
According
to Kleyn and Boraine, "Silberberg and Schoeman's Law of
Property", 3rd Edition, Butterworths, Pretoria, 1992 at page
130, the purpose of the mandament is "to restore unlawfully
deprived possession ante omnia to the possessor, in order to prevent
people from taking the law into their own hands".
There
are two-fold requirements to be satisfied by an applicant for the
mandament, namely;
that
he was in possession of the thing; and
that
he was illicitly ousted or despoiled from such possession.
See
DANIEL DIDABANTU KHUMALO vs MAFELENKHOSINI KHUMALO AND ANOTHER CASE
NO. 4004/00 (unreported) at page 4.
It
has been contended on the 1st Respondent's behalf that the Applicant
was not in factual possession of the item in question. For an
applicant to prove possession, he must prove that he had factual
control of the thing coupled with the intention to derive some
benefit from the thing. (See van der Merwe & de Vaal (supra) at
page 72 paragraph 78). In this case, the mechanic exercised physical
control on behalf of the Applicant and cannot be regarded as having
controlled the thing with an intention to derive some benefit
personally. As a result, people in his position who primarily hold
the thing on another's behalf without the intention of deriving some
benefit for themselves have not been granted a mandament van spolie
by the Courts.
As
to the first requirement, it is abundantly clear that the Applicant
was in possession of the merx and this fact is not controverted by
any of the Respondents. This requirement has in my view been
satisfied. Although there is no affidavit by the mechanic, it is
clear from the papers that the Applicant handed the vehicle over to
the mechanic for purposes of effecting repairs thereon and the
Respondents or one of them removed it illicitly. In their work
6
entitled,
"The Law of Things & Servitudes", C.G. van der Merwe
and M.J. de Waal state as follows at page 71 -72.
"The
application need not contain a specific allegation of peaceful and
undisturbed possession as long as this is evident from the
application as a whole. "
This
also finds support from YEKO v QANA 1973 (4) SA 735 at 739 D (A.D.),
per van Blerk J.A., where the following excerpt appears:-
"The
very essence of the remedy against spoliation is that the possession
enjoyed by the party who asks for the spoliation order must be
established."
It
is my view, having regard to the facts of the case that the Applicant
has succeeded in establishing possession. It is however necessary
that I must throw a word of caution that the relaxation of the
standard set out by the learned authors above does not mean that
proof of possession as a condictio sine qua non requisite for
spoliation is in any way negated or watered down.
Regarding
the second requirement, the Court was urged by the Respondents to
find that such has not been proved because according to the
Applicant, he gave the merx to the mechanic to effect repairs on it
and was later told by the said mechanic that the vehicle had been
taken away by the 2nd Respondent. The affidavit of the said mechanic
has not been annexed to show that the taking of the merx was illicit.
It was therefor argued that the Applicant's allegation that he was
despoiled is therefor hearsay and the Court should have no regard to
hearsay evidence.
I
agree that no affidavit by the mechanic has been filed. This renders
paragraph 10 of the Founding Affidavit hearsay. However, in paragraph
11, the Applicant states as follows :-
"I
reported the matter to the Pigg 's Peak police and they called the
2nd Respondent and questioned him about the motor vehicle. The 2nd
Respondent stated that he had bought the motor vehicle from 1s'
Respondent who towed it away and placed it at 2nd Respondent's place
of business. "
7
At paragraph 16.3 of the Answering Affidavit, the 1st Respondent
states as follows:-
"I
then sold the bus to the 2nd Respondent and gave direction where the
bus should be taken from as it was mine. "
At
paragraph 16.5, the 1st Respondent states;
"I
submit further that it was not necessary to seek a Court order to
seize the bus as our agreement with the Applicant had already expired
from the 26th October, 2000 to the 24th October, 2001."
From
the foregoing, it is clear that the taking of the vehicle was
illicit. This is also stated by the Applicant in paragraph 14 of the
Founding Affidavit, where he states:-
"Secondly
1st Respondent should have sought an Order of Court to repossess the
motor vehicle if he felt he was entitled to such repossession and he
did not do this either. I am accordingly entitled to a return of the
motor vehicle forthwith and on the basis of spoliation. "
It
is not denied by the Respondents that no Court order had been issued
in their favour. Clearly therefor, the repossession renders the
taking of the vehicle illicit. The allegation that the lease
agreement had expired, which has been proved to be untrue, did not
alter the position. If property is leased to another individual, one
cannot, in the absence of the other party's consent, failing which, a
Court Order, take the leased property. This amounts to taking the law
into one's hands and it is such unlawful conduct that a mandamant van
spolie was created to prevent. According to authors van der Merwe and
de Wall (supra) at page 72, paragraph 78, the original requirement
that the spoliation had to be either by violence or stealth has been
watered down. Violence, stealth, fraud or force is no longer
necessary for an act of spoliation. All that is now required is
unlawful spoliation i.e. disturbance of possession without the
consent and against the will of the possessor. The authors further
state :-
"A
person who gains possession of a thing by trickery commits an act of
spoilatio, just as a person who fraudulently induces a servant to
hand over the
8
property
of his master. Similarly, a messenger of court who gains possession
of a thing by means of an invalid writ of execution as well as state
officials who do not act strictly within their statutory powers in
evicting persons from certain premises commit act of spoliation."
It
is my view, from the foregoing that the Applicant has succeeded in
satisfying the second requirement as well. It appears to me, subject
to my finding on the last point that a case for the grant of a
mandament van spolie has been made out by the Applicant.
©
Is the 2nd Respondent a bona fide possessor? If so, what are his
rights vis-a vis the Applicant's prayer for a spoliation?
Mr
Mabila for the 2nd Respondent argued that his client is a bona fide
possessor and therefor enjoys a jus retentionis in respect of the
merx until true ownership has been established. According to Mr
Mabila, his client enjoys a warranty against eviction. It was further
contended on the 2nd Respondent's behalf that he holds an improvement
lien and in regard to the above submission, the Court was referred to
Voet 21.1. 20 to 25 and LAMMERS AND LAMMERS v GIONANNONI 1955 (3)
S.A. 385 at 390 and FLETCHER v BULAWAYO WATERWORKS COMPANY LTD 1915
AD 636.
The
question to be determined is whether the 2nd Respondent's allegation
that he is a bona fide possessor, which must still be proved in the
light of the affidavits before Court, qualifies to deprive the
Applicant of the relief he seeks, namely the mandament van spolie and
which I have found he has clearly established.
The
learned authors van der Merwe and de Waal (op cit), state as follows
at page 75 - 76 paragraph 80:-
"where
an article which has been spoliated is no longer in the hands of the
spoliator but has been lawfully acquired by a bona fide third party,
the court will also refuse a spoliation order since restoration of
the status quo is no longer possible.
Earlier,
on the same page, the following excerpt is recorded.
9
"Although
the courts differ as to when restoration is actually impossible, the
weight of authority supports the view that the mandament van spolie
will not succeed where the spoliated thing is destroyed, materially
damaged or alienated to a bona fide third party".
The
2nd Respondent regards himself as a bona fide possessor or a bona
fide third party as referred to in the immediately preceding excerpt.
A bona fide possessor is described in the following terms by CJ.
Classen, "Dictionary of Legal Words and Phrass" Vol. I.
A-D, Butterworths, 1975 at page 1932.
"Is
one who possesses and on reasonable and probable grounds believes
himself to be the owner.
Two
elements are necessary - detentio and the intention to hold for
himself. If he does not believe himself to be the owner he cannot be
a bona fide possessor......Bona fide possessor is therefore one who
possesses in the belief that he is the legal owner or that no one has
a better title ".
It
would appear to me, regard being had to the definition of a bona fide
possessor above that the 2nd Respondent does not have the hallmarks
of one. I say so in view of the 2nd Respondent's affidavit in which
it is clear that he was approached by the Applicant (if his version
is correct) who offered to sell the vehicle in question to him. A
tentative agreement of sale was then reached and a bottleneck was
reached when the Applicant advised the 2nd Respondent that the
registration documents were in the 1st Respondent's possession. The
2nd Respondent approached the 1st Respondent and a sale agreement was
reached after the 1st Respondent explained the circumstances under
which the vehicle was in the Applicant's hands.
Thereafter,
and without notifying the Applicant, albeit aware that he had some
colour of right over the vehicle, the 2nd Respondent went and removed
the vehicle without an Order of Court or the Applicant's consent.
In
my view, this conduct removes the 2nd Respondent from the class of a
bona fide possessor to a mala fide possessor because had he acted in
good faith, he would have advised the Applicant of all the
developments regarding the sale of the vehicle to him by
10
the
2nd Respondent. In this case, the 2nd Respondent is a spoliator and
having been declared a mala fide possessor is in a possession to
restore possession to the Applicant. As earlier stated, he had no
valid Court Order and did not even attempt to seek the Applicant's
consent to his taking possession of the merx.
Sight
must not be lost of the underlying principles of this mandament as
articulated by the authors van der Merwe and de Waal (op cit) at page
68 paragraph 75 in the following language:-
"
...the person who has been deprived of his possession must first be
restored to his former position before the merits of the case can be
considered. The main purpose of the mandament is to preserve public
order by restraining persons from taking the law into their own hands
and by inducing them to submit the matter to the jurisdiction of the
courts. Peace in a community could not be maintained if every person
who asserted that he had a claim to a particular thing were entitled
to resort to self-help to gain possession of a thing. "
The
Courts are there to ensure that we do not revert to the state of
nature.
The
Applicant having satisfied the requirements for the mandament, I am
constrained, in view of the excerpt immediately above, to restore
possession to the Applicant before the merits of the cases, both of
the 1st and 2nd Respondents can be considered.
In
the result, the rule nisi issued on the 11th May, 2001, be and is
hereby confirmed with costs to be borne jointly and severally by the
Respondents and it is so ordered.
T.S.
MASUKU
JUDGE
