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[2021] ZASCA 15
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Monteiro and Another v Diedricks (1199/2019) [2021] ZASCA 15; 2021 (3) SA 482 (SCA); [2021] 2 All SA 405 (SCA) (2 March 2021)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 1199/2019
In
the matter between:
JOSE
AQUINO MONTEIRO
FIRST APPELLANT
AUTOGLEN
MOTORS (PTY) LTD
SECOND APPELLANT
and
KENNETH
LEONARDO DIEDRICKS
RESPONDENT
Neutral
citation:
Monteiro and Another v Diedricks
(Case no
1199/19)
[2021] ZASCA 015
(2 March 2021)
Coram:
DAMBUZA, SCHIPPERS and PLASKET JJA and
GOOSEN and MABINDLA-BOQWANA
AJJA
Heard
:
4 November
2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email,
publication on the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 09h45
on 2 March 2021.
Summary:
Mandament van spolie
– principle affirmed that
remedy possessory in nature – order requiring restoration of
possession must be capable of
being carried into effect – high
court having ordered party not in possession of spoliated property to
restore possession
thereof to despoiled party – whether agent
of company a co-spoliator - order set aside as not capable of being
carried into
effect.
ORDER
On
appeal from:
Gauteng Division of the High Court,
Johannesburg (Mtati AJ sitting as court of first instance):
1
The appeal is upheld
with costs.
2
The order of the Gauteng
Division of the High Court, Johannesburg is
set aside and replaced with the following order:
‘
The
application is dismissed with costs.’
JUDGMENT
Goosen
AJA (Dambuza and Plasket JJA concurring)
[1]
The central issue in this appeal is whether a court can
order a party
to restore possession of goods of which it is not in possession. It
is a question which has served before our courts
in applications for
a
mandament van spolie
on numerous occasions. As with most
questions regarding the application of legal principles to facts,
controversy can arise. In
this instance the controversy extends to
the proper interpretation of the principles.
[2]
Mtati AJ, in the Gauteng Division of the High Court,
Johannesburg
(the high court), on 12 September 2019, ordered the appellants to
restore possession of a BMW motor vehicle to the
respondent. Leave to
appeal to this Court was granted by the high court.
The
facts
[3]
The respondent, Mr Kenneth Leonardo Diedricks (Diedricks),
was in
possession of a BMW motor vehicle and, on 28 August 2019, he
delivered the vehicle to the second applicant, Autoglen Motors
(Pty)
Ltd (Autoglen) for a routine maintenance service. He handed the keys
to the vehicle to Roger Quintal (Roger), a consultant
employed by
Autoglen. At approximately 13h30 he received a telephone call from
Roger advising him that he could collect the vehicle.
When, later
that afternoon, Diedricks went to Autoglen’s premises to
collect the vehicle he discovered that the keys to the
vehicle had
been handed over to representatives of an entity that claimed to own
it.
[4]
It transpired that shortly after Roger had called
Diedricks to advise him that he could collect the vehicle two
persons, Louis and
Diane, had arrived at Autoglen’s premises.
They spoke to Sergio Quintal (Sergio), and told him that they
represented the
owner of the vehicle. They showed him eNATIS
[1]
registration papers which reflected that the vehicle was owned by
Street Talk Trading 178 (Pty) Ltd (Street Talk Trading). Sergio
was
persuaded to hand over the keys to the vehicle but kept possession of
the vehicle. When Diedricks went to collect the vehicle,
using a
spare set of keys, he was informed by Sergio that Autoglen had been
instructed by the first appellant, Mr Jose Aquino Monteiro
(Monteiro), not to hand over the vehicle to him. It was common cause
that Monteiro is a director of Street Talk Trading.
[5]
Autoglen retained possession of the BMW motor vehicle
until 29 August
when it handed the vehicle to Street Talk Trading upon payment of the
invoice for the service it had performed
on the vehicle.
[6]
Diedricks launched an urgent spoliation
application on 29 August 2019. BMW South Africa (Pty) Ltd (BMW SA)
was cited as first respondent,
Autoglen as second respondent and
Monteiro as third respondent. No relief was sought against BMW SA
[2]
or Monteiro. Diedricks sought only an order that Autoglen restore
possession of the BMW motor vehicle to him. He stated in his
founding
affidavit that until 28 August 2019 he was in peaceful and
undisturbed possession of the BMW motor vehicle. He explained
that he
was a party to a vindicatory action in which Street Talk Trading
claimed repossession of the vehicle on the basis of ownership.
That
action was pending before the high court. He had given no instruction
to nor authorised the release of the motor vehicle to
Street Talk
Trading or Monteiro. He accordingly alleged that Autoglen had
unlawfully dispossessed him of the motor vehicle.
[7]
In its answering affidavit Autoglen set out the circumstances,
described above, in which it had released the vehicle to Street Talk
Trading. Monteiro, in his answering affidavit, confirmed
these
facts. He confirmed that a vindicatory action was pending before the
high court. He alleged however, that since Street Talk
Trading was
the owner of the vehicle, it was entitled to take possession thereof
as it did. He further stated that Street Talk
Trading had sold the
vehicle, on 29 August, to a Mr Kioilos and had delivered it to him.
He, Monteiro, was at no stage in possession
of the vehicle. Street
Talk Trading was no longer in possession thereof having entered into
an agreement of sale with a third party.
Proceedings
before the high court
[8]
Before the high court, Autoglen and Monteiro based their
resistance
to the spoliation application on several grounds. Apart from
contending that a spoliation order could not be granted
against them
because they were not able to restore possession, both raised a
challenge to the alleged non-compliance with regulations
governing
the administration of the oath and to the urgency with which the
application was pursued.
[9]
The high court quite correctly ruled that the respondent
had made out
a proper case for urgency. This aspect was abandoned. Insofar
as the alleged non-compliance with rules regulating
the
administration of the oath is concerned, Monteiro persisted with this
issue on appeal. The high court condoned Diedricks’
non-compliance with the regulations. I accept that, for the
reasons given by the high court, it was entitled to condone the
non-compliance and that it did so properly.
[10]
In the notice of motion Diedricks only sought an order against
Autoglen. However,
such relief was abandoned in his replying
affidavit. He sought then, without formal amendment of the notice of
motion, an order
against Monteiro. The high court granted an order,
however, that:
‘
Possession
of a BMW motor vehicle . . . is to be restored to the applicant
immediately by the 2
nd
and / or 3
rd
respondent.
. . .’
The
issues
[11]
Before this court Monteiro and Autoglen relied upon two primary
grounds. The first
was that a
mandament van spolie
ought not
to have been granted because Diedricks was not, as matter of fact and
law, in possession of the motor vehicle when the
spoliation occurred.
It was submitted that he had, by delivering the vehicle to Autoglen
for repairs given up possession thereof.
In relation to Autoglen he
had consented to its possession. Autoglen could therefore not be said
to have spoliated the property.
In relation to Monteiro it was
submitted that inasmuch as the vehicle was taken into the possession
of Street Talk Trading, Diedricks
was not deprived of possession
since it was then in the possession of Autoglen. On this basis, it
was contended that Diedricks
did not establish the first requisite
for an order restoring possession, namely that he was deprived of
possession.
[12]
The second point relied upon was that neither Autoglen nor Monteiro
were in possession
of the motor vehicle. Autoglen had passed
possession on to Street Talk Trading and could therefore not restore
it to the possession
of Diedricks. As for Monteiro, he asserted that
the vehicle had been sold by Street Talk to a third party.
[13]
For reasons which will become apparent hereunder I propose to deal
with the second
issue raised by Monteiro and Autoglen since it is,
having regard to the facts, entirely dispositive of the appeal.
The
principles
[14]
The
mandament van spolie
is a possessory remedy which is available to a person whose peaceful
possession of a thing has been disturbed. It lies against
the person
who committed the dispossession. The
mandament
is not concerned with the underlying rights to claim possession of
the property concerned. It seeks only to restore the
status
quo ante.
It does so by mandatory order
irrespective of the merits of any underlying dispute regarding the
rights of the parties.
[3]
The essential rationale for the remedy is that the rule of law does
not countenance resort to self-help.
[15]
In
Rikhotso v Northcliff
Ceramics (Pty) Ltd and Others (Rikhotso)
[4]
it was held that:
‘
The
remedy afforded by the
mandament
van spolie
, expressed in the
maxim
spoliatus ante omnia restituendus est
,
is generally granted where one party to a dispute concerning
possession of property seizes the property pursuant to what he
believes
to be his own entitlement thereto. In such cases a court
will summarily order return of the property irrespective of either
party’s
entitlement to possession, and will not entertain
argument relating to their respective rights until this has been
done. The principle
underlying the remedy is that the entitlement to
possession must be resolved by the courts, and not by a resort to
self-help.
By
its nature then a spoliation order will usually operate as no more
than a preliminary order for restoration of the
status
quo
until the entitlement to
possession of the property is determined. The assumption underlying
the order is that the property exists
and may be awarded in due
course to the party who establishes an entitlement thereto.’
[16]
This doctrinal basis of the remedy has been
approved both by this Court in
Tshwelopele
Non-Profit Organisation and Others v City of Tshwane Metropolitan
Municipality and Others
[5]
and the Constitutional Court in
Schubart Park
Residents Association and Others v City of Tshwane Metropolitan
Municipality.
[6]
[17]
Two requirements must be met in order to obtain the remedy. Firstly
the party seeking
the remedy must, at the time of the dispossession,
have been in possession of the property. The second is that the
dispossessor
must have wrongfully deprived them of possession without
their consent. As indicated in
Rikhotso
the assumption
underlying the granting of the remedy is that the property exists and
is capable of being restored to the possession
of the party that
establishes entitlement thereto. It is for this reason that the
remedy is not available in circumstances where
it has been destroyed.
It is also not available, generally, in circumstances where the
property is no longer in the possession
of the spoliator.
[18]
Our courts have accepted that in certain circumstances a remedy may
nevertheless
be granted where the property concerned has been
destroyed. These circumstances are not relevant to the present
matter. They relate,
as indicated in
Tshwelopele
and
Schubart
Park
to instances where the dispossession also implicates
constitutionally protected rights such as the right to housing and
shelter.
Importantly, it was held in
Tshwelopele
that there is
no need to develop the remedy’s essential possessory character
or to graft onto it a constitutional element.
In that matter, as in
Schubart Park
, the remedy was based upon the court exercising
its constitutional jurisdiction to grant an appropriate remedy
distinct from the
essential
mandament
.
[19]
Our courts have also accepted that the remedy may
be granted in circumstances in which the property is no longer in the
possession
of the spoliator, but is held by a third party. In
Malan
v Dippenaar
[7]
it was held:
‘
Na
my mening is ’n Hof geregtig om ’n bevel te maak teen ’n
spoliator vir teruglewering van die besit van gespolieerde
eiendom al
is hy nie meer in besit daarvan nie tensy, om een of ander rede—bewys
waarvan op die spoliator is—dit duidelik
is dat dit onmoontlik
vir hom sal wees om die Hof se bevel uit te voer.’
[8]
[20]
There is, however, a contrary view to the effect
that the mandament does not lie in circumstances where possession of
the property
has passed into the possession of a bona fide third
party.
[9]
In
Jamieson and Another v Loderf (Pty) Ltd and
Others
[10]
Rogers J outlined and considered the nature of this controversy in
the authorities. The court came to the conclusion that it was
unnecessary to resolve it. Instead it held, on the facts, that the
immovable property in issue in that matter had been sold and
transferred to the third party who had no knowledge of the pending
spoliation proceedings and had purchased the property bona fide.
Accordingly as a matter of fact restoration of the property was not
possible. For this reason an order restoring the property could
not
be granted. The court nevertheless framed a declaratory remedy to
vindicate the underlying principle of the rule of law. It
did so
primarily because the property had been sold after an unsuccessful
application for a
mandament
but while an appeal was pending, in which the court of first instance
was found to have been wrong.
[21]
In this matter I am similarly of the view that it
is unnecessary to enter upon the terrain of the academic controversy
regarding
the availability, in principle, of the remedy where the
spoliator is no longer in possession of the spoliated property. That
is
so because the
mandament
by its nature may involve either mandatory elements, such as the
delivery of movable property, or prohibitory elements, as in the
case
where a party is restrained from preventing certain steps being taken
to restore possession.
[11]
Where the order cannot be carried into effect it cannot, competently,
be granted. Whether the order can be carried into effect
is a
question of fact to be determined by the court asked to grant an
order.
[22]
In
Administrator, Cape and
Another v Ntshwaqela
[12]
the court said of this essential consideration,
‘
It
is trite that a court will not engage in the futile exercise of
making an order which cannot be carried out. So, an order for
specific performance of a contract will be refused where performance
is impossible; and an order
ad
factum praestandum
will similarly
be refused in such circumstance (e.g. an order for maintenance where
the defendant is destitute). The principle is
embodied in the
maxim
lex non cogit ad
impossibilia
, which is discussed in
Broome’s
Legal Maxims
,
10th ed. at 162:
“
This
maxim, or, as it is also expressed,
impotentia
excusat legem
, must be understood in
this qualified sense, that
impotentia
excuses
when there is a necessary or invincible disability to perform the
mandatory part of the law, or to forbear the prohibitory.
It is akin
to the maxim of the Roman law,
nemo
tenetur ad impossibilia
, which, derived
from common sense and natural equity, has been adopted and applied by
the law of England under various and dissimilar
circumstances.
The law itself and the administration of it, said Sir W.
Scott, with reference to an alleged infraction of the revenue laws,
must
yield to that to which everything must bend, to necessity; the
law, in its most positive and peremptory injunctions, is understood
to disclaim, as it does in its general aphorisms, all intention of
compelling to impossibilities, and the administration of laws
must
adopt that general exception in the consideration of all particular
cases.”
The same principle must apply where the question is one
not of obeying the law but of complying with an order of court.
In
the context of the mandament van spolie, impossibility is a question
of fact, and where it is contended that an order should
not be
granted because it cannot be complied with, it must be shown that
compliance is impossible on the facts.’
[23]
In
Eke v Parsons
[13]
the Constitutional Court affirmed the
essential characteristics of a court order. It accepted that a court
order must be effective,
enforceable and immediately capable of
execution. In a minority concurring judgment Jafta J stated that:
‘
The
rule of law requires not only that a court order be couched in clear
terms but also that its purpose be readily ascertainable
from the
language of the order. This is because disobedience of a court order
constitutes a violation of the Constitution.’
[24]
It bears emphasis that in order to be an effective order, whether or
not its language
is clear, the order must be capable of being carried
into effect by the party under burden of that order.
Assessment
[25]
The facts in this matter are those which, on the
principle set out in
Plascon-Evans Paints Ltd
v Van Riebeeck Paints (Pty) Ltd,
[14]
are set out in the answering affidavits filed by Monteiro and
Autoglen. It must be accepted therefore that Monteiro, acting in
his
capacity as a director of Street Talk Trading, caused it to take
possession of the motor vehicle from Autoglen. What occurred
immediately thereafter, indeed on the day that the spoliation
application was launched, is set out in Monteiro’s affidavit
as
follows:
‘
Street
Talk had no use for the motor vehicle and for this reason it sold the
motor vehicle to Mr Kioilos on 29 August 2019. The
agreement in terms
of which the motor vehicle was sold was concluded orally. I
represented Street Talk and Mr Kioilos acted personally.
Pursuant to
the sale of the motor vehicle to Mr Kioilos, Street Talk delivered
the motor vehicle to Mr Kioilos who is in possession
thereof.’
[26]
It is apparent from these facts that, to the extent that Monteiro
exercised possession
over the motor vehicle, he did so on behalf of
Street Talk Trading. It is also apparent that Street Talk Trading, a
separate legal
persona, sold the motor vehicle and perfected the sale
by delivery of the merx to the third party purchaser.
[27]
The order that was granted by the high court required Autoglen and /
or Monteiro
to restore possession of the motor vehicle to Diedricks.
In the light of these facts it is difficult to conceive how Autoglen
and Monteiro could give effect to the order. Neither was in
possession of the motor vehicle. Autoglen could not be expected to
intervene in a contractual relationship to which it was not a party.
No doubt, for this reason Diedricks did not move for an order
against
Autoglen. Nevertheless, an order was made against it by the high
court.
[28]
Just as Autoglen could not, in law or fact, give effect to the order
made, so too
was Monteiro not capable of giving effect to the order.
Certainly, Monteiro could not be compelled to take steps to restore
possession
without Street Talk Trading, the entity which took
possession of the motor vehicle and disposed of it to a third party,
being compelled,
by a court order, to forbear such steps or to take
them itself. Street Talk Trading was not joined in the proceedings.
This is
inexplicable given the facts disclosed in the affidavit filed
by Monteiro and also in the light of the fact there was pending
litigation
between Street Talk Trading and Diedricks, in which
ownership of the motor vehicle was at issue. Had Street Talk Trading
and Kioilos,
the third party, been properly joined, even after the
answering affidavits were filed in the application, Diedricks may
well have
been able to obtain proper relief.
[29]
It follows, that upon a proper appreciation of the facts of the
matter, an order
requiring Monteiro to restore possession of the
motor vehicle to Diedricks was not an order with which compliance was
possible.
[30]
It was suggested in argument that Monteiro did not assert that it was
impossible
to comply with the order. It was also submitted that since
the onus is borne by the party asserting such impossibility more was
required than the ‘mere’ assertion that the vehicle had
been sold. In this regard it was suggested that such ‘mere’
assertion would defeat a party’s entitlement to the restoration
of possession and would undermine the administration of justice.
In
developing the argument, counsel suggested that Monteiro ought to
have provided greater detail regarding the sale of the motor
vehicle
so that the court would be able to assess whether it was a
bona
fide
sale. Counsel was, however, unable to point to any
particular allegation regarding the sale which would alter the
essential fact,
namely that the sale had been perfected.
[31]
The argument regarding the ‘mere’ assertion of disposal
of the vehicle
loses sight of how an onus or evidentiary burden is
discharged. The burden is discharged upon application of a single
standard
and upon the facts as are found to be established. In this
instance those facts are that the vehicle was sold and delivered to a
third party. They do not permit of a finding that an order for
restoration could properly be made against Monteiro. The failure
to
allege that compliance with a restoration order is impossible would
not add to the weight in favour of such conclusion. In each
instance
the court deciding whether to grant a
mandament van spolie
against a particular respondent must make its decision upon the facts
and, as it must necessarily do when making an order, alert
to whether
the order it makes can be carried into effect.
[32]
Counsel for Diedricks argued that the rapid sale of the motor vehicle
suggested that
Monteiro and Kioilos had ‘colluded’ in
some manner to frustrate Diedricks’ claim to possession of the
motor vehicle.
There is however, no evidence to support this. The
conclusion, to which the high court came, is based upon an inference.
It is
however, not the only one which can reasonably be drawn. Even
if it were to be accepted that Monteiro conducted himself in a manner
which was deliberately calculated to deprive Diedricks of possession
of the vehicle and to frustrate his defence to the pending
vindicatory action, it is not possible to conclude that Kioilos was a
party to such scheme. The fact that Monteiro’s conduct
may be
reprehensible does not render the order an effective order.
[33]
For the reasons already indicated, the order against both Autoglen
and Monteiro is
not one that competently could be made. The appeal
must therefore succeed.
Costs
[34]
As already indicated the high court ought not to have granted an
order against Autoglen
in circumstances where such relief was
abandoned at the hearing of the application. Autoglen was obliged to
come to this court
on appeal to set that order and the associated
costs order aside. It was open to Diedricks to abandon the orders
obtained against
Autoglen. He did not. In these circumstances
Autoglen is entitled to its costs on appeal on the ordinary principle
that it was
successful. It is also entitled to its costs in the high
court.
[35]
The same is true of Monteiro notwithstanding that he, as the agent of
Street Talk
Trading, conducted himself in manner that suggests a
deliberate resort to self-help. For reasons I have already mentioned
relief
was sought against the wrong party. The order by the high
court ought not to have been granted. For as long as that order
subsisted
and had not been abandoned, Monteiro was obliged to
approach this Court. He is accordingly entitled to his costs on
appeal. He
is also entitled to his costs in the high court for the
reasons already mentioned. I do not consider that it will be
appropriate
to issue a declaratory order such as was done in the
Loderf
matter, given the particular circumstances of that
case. Similar circumstances do not apply in this case.
[36]
In the result, I make the following order:
1
The appeal succeeds, with costs.
2
The order of the high court is set aside and is replaced with the
following order:
‘
The
application is dismissed with costs.’
________________________
G.
GOOSEN
ACTING
JUDGE OF APPEAL
Schippers
JA (Mabindla-Boqwana AJA concurring):
[37]
I am grateful to my colleague, Goosen AJA, for his statement of the
circumstances
in which the claim in this case arose and for setting
out the issues debated before us. I agree that an order should not
have been
granted against the second appellant, Autoglen, since
Diedricks had abandoned the spoliation order sought against it.
However,
he persisted with his claim for costs, as the actions by
both Autoglen and Monteiro resulted in Diedricks being dispossessed
of
the vehicle. In my view he is entitled to part of his costs of
suit in the high court.
[38]
Unfortunately, however, I find myself in disagreement with Goosen AJA
on the outcome
of the appeal in relation to the first appellant,
Monteiro. In my judgment, on the particular facts of the case, the
high court
was correct to hold that Monteiro had unlawfully despoiled
Diedricks of his possession of the vehicle, and to grant a spoliation
order.
[39]
To explain my reasons for differing from the majority, it
is necessary
to state the basic facts, which in my opinion clearly
show that Monteiro engineered the dispossession of the vehicle. They
are
largely common ground. Monteiro is a director of Street Talk
Trading, the registered owner of the vehicle. The latter has
instituted
a vindicatory action against Diedricks in the high court
under case number 42871/2018, for delivery of the vehicle (the
vindicatory
action). That action is defended and when the spoliation
application was launched, had reached the stage where the parties
were
required to deliver their heads of argument.
[40]
On the morning of 28 August 2019 Diedricks delivered the vehicle to
Autoglen for
a service. It was not the first time that Diedricks had
taken the vehicle to Autoglen for a service or repairs. He had done
so
in April 2019, without incident. Autoglen sent an automated
message via SMS to the contact person on its system, ie Monteiro,
confirming
delivery of the vehicle. Monteiro would otherwise not have
known that the vehicle was at the premises of Autoglen. Monteiro then
advised Mr Sergio Quintal (Sergio), Autoglen’s Service Manager
that the vehicle should not be handed to Diedricks, but to
Street
Talk Trading.
[41]
Around 15h00 on 28 August 2019, Diedricks telephoned Autoglen to
arrange transport
in order to collect the vehicle. He was referred to
Sergio who informed him that Monteiro had instructed him to give the
key of
the vehicle to one, Louis, which he did. A short while later
Diedricks took the spare key and the court documents relating to the
vindicatory action, and went to collect the vehicle from Autoglen. He
showed those documents to Sergio and said that he was in
lawful
possession of the vehicle. In addition, Diedricks’ attorney
telephoned Sergio and sent him further documents. Sergio
however
informed Diedricks that Monteiro had given instructions that the
vehicle must not be delivered to him, and he refused to
deliver it to
Diedricks.
[42]
Consequently, on the same day, ie 28 August 2019, Diedricks’
attorneys wrote
to Martins Weir-Smith, the attorneys acting for
Monteiro, and to Sergio, advising them of the vindicatory action, and
stating that
if Diedricks was not placed in possession of the
vehicle, the court would be approached urgently for relief. It is not
disputed
that Monteiro had informed Sergio that the vehicle was not
to be released to Diedricks under any circumstances, and that
Monteiro
would pay any costs incurred by Autoglen. The vehicle was
handed to Monteiro at about 11h00 on 29 August 2019, although it was
driven away from the premises of Autoglen by someone else. On the
same day that the application was launched, Monteiro says that
that
Street Talk Trading sold the vehicle.
The
relief against the first appellant
[43]
In order to obtain a spoliation order, an
applicant must show that he was in peaceful and undisturbed
possession of a thing; and
that he was unlawfully deprived of such
possession.
[15]
These two requirements must be proved on a balance of probabilities:
a prima facie case will not suffice, since the
mandament
van spolie
is a final court order.
[16]
[44]
It is necessary firstly, to consider the argument by counsel for
Monteiro that, at
the time of the spoliation, Diedricks was not in
peaceful and undisturbed possession, because he had handed over
control of the
vehicle to Autoglen. Diedricks, so it was argued, also
gave up the intention to possess the vehicle when he delivered it to
Autoglen.
This argument has no merit and can be disposed of shortly.
[45]
It is trite that possession comprises an
objective or physical element (
corpus,
detentio
) and a subjective or mental element
(
animus
).
[17]
The objective element consists in effective physical control or
custody of the thing in a person’s possession. The measure
of
control required is a question of degree that differs with the
circumstances of each case. In this regard, one of the factors
taken
into account is whether acquisition or retention of possession is
being considered.
[18]
Once possession has been required initially, continuous physical
contact with or control over the thing, is not required for the
retention of such possession.
[19]
[46]
As to the mental element, the person must have
the will to possess (
animus possidendi
),
which includes (a) an awareness that physical control is being
exercised over the thing; (b) the direction of the possessor’s
will towards exercising control over the thing for himself; and (c)
the peculiar
animus
required in view of the function served by possession in the
particular case.
[20]
As regards (c), where the possessor wishes to protect his possession,
the will to have the thing for oneself is required.
[21]
[47]
In
Yeko v Qana
,
[22]
Van Blerk JA said:
‘
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. As has so often been said by our Courts the possession
which must be proved is not possession in the juridical
sense; it may
be enough if the holding by the applicant was with the intention of
securing some benefit for himself.’
[48]
Following this decision, in
Bennett
Pringle (Pty) Ltd v Adelaide Municipality
,
[23]
Addelson J stated:
‘
If
one has regard to the purpose of this possessory remedy, namely to
prevent persons taking the law into their own hands, it is
my view
that a spoliation order is available at least to any person who
is (a) making physical use of property to
the extent that
he derives a benefit from such use; (b) intends by such use
to secure that benefit to himself; and (c) is
deprived of
such use and benefit by a third person.’
[49]
Applied to the present case, Diedricks plainly was in possession of
the vehicle,
both when it was delivered to and while it remained with
Autoglen for a service. He had used the vehicle and held it with the
intention
of securing that benefit for himself. In the founding
affidavit Diedricks says that the vehicle is his primary means of
transport
for personal and business use. He was still capable of
exercising physical control over the vehicle after its delivery to
Autoglen.
Indeed, the defence of the vindicatory action is a powerful
indicator that Diedricks had no intention of forfeiting the benefits
derived from his possession of the vehicle.
[50]
As indicated above, the measure of control
required for possession depends on whether the acquisition or
retention of possession
is in issue. In in the former case,
more stringent control is required; and in the latter, continuous
physical contact
with the thing is not necessary.
[24]
As stated in
Bennett Pringle
,
[25]
detentio
will be held
to exist despite the fact that the claimant may not possess the whole
property, or possess it continuously.
Thus, in
Lawsa
,
the example is given of a person who has left his coat in the foyer
of a dance-hall (normally handed to another for safekeeping).
While
he is dancing, he retains possession of the coat.
[26]
Likewise, persons who leave their cars to be guarded by an attendant
in a parking lot, and those who leave their cars at a carwash,
do not
lose possession of their cars, although they are unable for a period
of time to exercise physical control over the cars.
There is no
difference in logic or principle between these examples and the facts
of this case. Once possession is acquired it
will be retained, as
long as the possessor is capable of exercising physical control over
the thing.
[27]
[51]
The contrary approach in
Bank
van die Oranje Vrystaat v Rossouw
,
[28]
in which it was said that the respondent gave up possession of a
vehicle when he delivered it to a panel beater for repairs, is
in my
view, incorrect. The judge in that case seems to acknowledge that the
approach is inconsistent with
Yeko v Qana
and
Bennett Pringle
.
[29]
Aside from this, it is not clear whether the respondent lost
possession upon delivery of the vehicle, or as a result of the panel
beater’s exercise of its right of retention. The judge said:
‘
Dit
sal onthou word dat hy [die bank] die voertuig uit die besit van van
’n derde verkry het nadat hy hom betaal het om sy
retensiereg
af te los. Na my mening was die verweerder
op
daardie stadium
nie in
besit van die voertuig nie
. Met ander woorde,
die nodige
detentio
het by die verweerder ontbreek.’
[30]
[52]
It follows that when Diedricks delivered the
vehicle to Autoglen, he did not relinquish possession of it.
Otherwise viewed, the
mandament van spolie
– rooted in the rule of law, whose main purpose is to preserve
public order by preventing persons from taking the law into
their own
hands
[31]
– is unavailable to the party unlawfully deprived of possession
in circumstances such as the present, and those described
in
paragraph 50 above.
[53]
This brings me to the second issue: whether the
high court was correct to grant a spoliation order. The majority
judgment states
that Monteiro, ‘as the agent of Street Talk
Trading, conducted himself in a manner that suggests a deliberate
resort to self-help’.
That Monteiro deliberately resorted to
self-help is, on his own version, in my view beyond question. He
played a pivotal role in
the dispossession. Without Monteiro’s
active intervention, Diedricks could not and would not have been
dispossessed of the
vehicle.
[32]
A person who has ordered or ratified an act of spoliation is also
deemed a spoliator.
[33]
What the facts show, in my respectful opinion, is that Monteiro did
not exercise possession or control over the motor vehicle on
behalf
of Street Talk Trading. But even if he had, it would not assist him,
for two reasons. The first is that throughout, Monteiro
was a
co-spoliator and the claim that he acted in a representative capacity
is immaterial, in my view. So too, the fact that Diedricks
must have
known of Street Talk Trading’s claim of ownership. The second
is that a better title to possession of a thing –
Street Talk
Trading’s ownership of the vehicle – is not a defence to
the
mandament van spolie
.
[34]
[54]
In
Administrator Cape v
Ntshwaqela
,
[35]
the applicants, who had been unlawfully dispossessed of their sites
on a farm in Noordhoek in the Western Cape, obtained a
mandament
van spolie
against the former Cape Provincial
Administration (CPA), the South African Police (SAP) and the owners
of the farm. It was argued
that the role of the CPA was essentially
to provide transport for the removal of the applicants and that of
the SAP, to maintain
order and to prosecute should that prove
necessary. Rejecting this argument, Nicholas AJA said:
‘
There
can be no doubt that the CPA and the SAP were co-spoliators with the
respective owners. . . . Mr
Comrie
,
who appeared for the second and third respondents in this Court, said
that although the CPA was vitally involved in the pre-planning,
its
role was essentially that of providing transport for the removal of
the squatters from Dassenberg Farm and The Tip to Khayelitsha.
It
played no part in the demolition of structures or bulldozing
activities or anything else. This is no doubt correct, but the
part
played by the CPA was nevertheless a vitally important one: without
its assistance and support there could have been no removal
of the
squatters. Mr Comrie said that the role of the SAP was essentially to
maintain order and prosecute if that should prove
necessary; the
police were not involved in the demolition of any structures. I do
not think that this is a correct assessment of
the part played by the
police. They provided the driving force for the operation.’
[36]
[55]
Nicholas AJA went on to say:
‘
There
is a dearth of authority on the question of the liability of
co-spoliators. In his unpublished doctoral thesis,
Die Mandament
van Spolie in die Suid-Afrikaanse Reg
(1986), Prof D G Kleyn says
the following at 253:
“
7,2.2.7
Teen wie mandament aangevra word
Die
mandament is in die eerste plek teen die spoliator self gerig
.
Voorts kan diegene wat opdrag gegee het tot ’n daad van spolie
(prinsipaal), asook diegene wat dit ratifiseer (
rationem
habere
) aangespreek word. Die rede vir
laasgenoemde persone se aanspreeklikheid is volgens Zoesius “
quia
ratihabitio in delictis mandato comparatur
”.
Die gedagte is dus dat die ratifiseerder as ’n prinsipaal en
derhalwe as ’n
socius delicti
,
beskou word.
Waar die spoliator wat in opdrag
gehandel het aangespreek word, word geen tussenkoms van die
prinsipaal toegelaat nie
aangesien spolie ’n
“
species delicti
”
is. Die vraag of beide die prinsipaal en die lashebber en of net een
van die twee aangespreek kan word, word ontbeantwoord
gelaat deur
genoemde skrywers.” In support of these statements, the learned
author refers to
Christaneus
,
Schrassert
,
Zoesius
and
Nassau la Leck
.
Although Prof Kleyn does not specifically discuss the liability of
co-spoliators,
the principle is clear and
there can be no doubt that they are liable as joint wrongdoers
.’
[37]
[56]
Applied to the facts of this case, Monteiro was
the
spoliator.
He was the driving force behind the removal of the vehicle. He
ordered and executed the act of spoliation from start
to finish. Upon
being informed that the vehicle was at the premises of Autoglen,
Monteiro decided to take possession of the vehicle
unlawfully, and
instructed Sergio not to release it to Diedricks under any
circumstances. When Sergio refused to release the vehicle
on 28
August 2019, it was Monteiro who went to the premises of Autoglen and
convinced the dealer principal to release it, against
payment of
Autoglen’s invoice. The vehicle was released to Monteiro on
condition that he (not Street Talk Trading) would
deal with any
issues which could arise from its release.
[57]
The sole reason for his instruction that Diedricks should not be
placed in possession
of the vehicle, in Monteiro’s own words,
was this:
‘
Since
Street Talk is the owner of the vehicle
,
it was perfectly entitled to take possession of the motor vehicle as
it did.
For this reason, I advised the second
respondent’s representative
Mr Sergio
Quintal
that the motor vehicle should be
handed to Street Talk and not the applicant.
’
[38]
[58]
Plainly, it was Monteiro who took this decision. On his own showing,
he was intent
on unlawfully despoiling Diedricks of possession of the
vehicle, well-knowing that ownership thereof was the subject of the
vindicatory
action. Street Talk Trading, the registered owner of the
vehicle, instituted that action. It did so – it must be
accepted
– precisely because it could not take the law into its
own hands. In these circumstances, it is inconceivable that Monteiro
could honestly have believed that he, or Street Talk Trading, was
entitled to take possession of the vehicle. This is the clearest
indication that Monteiro’s conduct was mala fide.
[59]
Apart from this, the fact that Street Talk
Trading is the registered owner of the vehicle, or that it produced
proof of its ownership
to Autoglen, is not a permissible defence in
spoliation proceedings: possession of the spoliatus must first be
restored before
the merits of the case can be considered.
[39]
The essence of spoliation proceedings is the restoration of
possession before anything else is decided (
spoliatus
ante omnia restituendus est
).
[40]
[60]
The next question is whether restoration is
impossible. In principle, the
mandament
should apply in all cases where a person dispossesses another even
without acquiring possession himself, when in so doing he has
taken
the law into his own hands, and when he is afterwards capable of
restoring the status quo ante.
[41]
The authors of Silberberg and Schoeman’s
The
Law of Property
, rightly in my view, state
that transfer of possession to a third party cannot imply that
restoration will always
per se
be impossible.
[42]
Where a third party has acquired possession a spoliation order can
still be granted, unless the spoliator proves that it is impossible
for him to give effect to the order.
[43]
[61]
In
Administrator Cape v
Ntshwaqela
Nicholas AJA said:
[44]
‘
In
the context of the mandament van spolie, impossibility is a question
of fact, and where it is contended that an order should
not be
granted because it cannot be complied with, it must be shown that
compliance is impossible on the facts.’
[62]
Monteiro simply failed to show that it was impossible for him to
comply with the
spoliation order. The explanation for his alleged
inability to restore possession, comprises the most perfunctory
assertions. He
said:
‘
Street
Talk had no use for the motor vehicle and for this reason it sold the
motor vehicle to a Mr Kioilos on 29 August 2019. The
agreement in
terms of which the motor vehicle was sold to Mr Kioilos was concluded
orally. I represented Street Talk and
Mr Kioilos acted
personally. Pursuant to the sale of the motor vehicle to Mr Kioilos,
Street Talk delivered the motor vehicle to
Mr Kioilos who is in
possession thereof.’
[63]
To begin with, apart from Monteiro’s say-so, there is no
evidence of the sale
of the vehicle to the third party on 29 August
2019. Unsurprisingly, no affidavit by Mr Kioilos confirming the
so-called sale has
been filed. Monteiro gives no indication of the
purchase price, whether the vehicle was sold for cash or on terms,
whether the
purchase price has been paid, or whether the proceeds of
the alleged sale have been paid to Street Talk Trading. And the
whereabouts
of the vehicle were masked with the simple statement that
Mr Kioilos ‘is in possession thereof’.
[64]
Now, if the courts were to countenance such a ‘defence’,
in my view every
application for a spoliation order would be
dismissed by the sleight of an allegation that the thing has been
sold in terms of
an oral agreement, and is in the possession of a
third party. Little wonder then, that Mtati AJ, correctly, came to
the following
conclusion:
‘
Under
the circumstances, I am not persuaded that the action of the second
respondent [Autoglen] to release the vehicle was to err
on the side
of caution, nor am I persuaded that the reasons proffered by the
third respondent [Monteiro] of being no longer in
possession of the
motor vehicle was as a result of a sale to an innocent party and that
same was
bona fide
.’
[65]
Further, it will be recalled that in the
afternoon of 28 August 2019, Monteiro’s attorneys had been
informed that a spoliation
application would be brought. The papers
in that application were issued the next day and served on his
attorneys by e-mail, the
very day on which Monteiro says he sold the
vehicle. The time at which the papers were served does not appear
from the record.
Monteiro does not say precisely when on 29 August
2019, the sale was concluded. This too, is not surprising. What is
clear, however,
is that the vehicle could not have been delivered to
a buyer before 11h00 on 29 August 2019 – when it was handed to
Monteiro
by Autoglen. And there is nothing in the answering affidavit
to suggest that Mr Kioilis is an innocent third party. But even on
the assumption that he is, Monteiro did not allege that it was
impossible for him to restore possession of the vehicle; neither
did
he adduce any evidence of steps he had taken to do so.
[45]
The high watermark of his case on this score was that the application
had to fail, simply because he was not in possession of the
vehicle.
[66]
What is more, Monteiro himself said that Street
Talk Trading ‘had no use for the motor vehicle’, which he
knew or ought
to have known when he instructed Sergio not to hand it
to Diedricks. Why then was it necessary for Monteiro to give this
instruction
and remove the vehicle from the premises of Autoglen in
the first place, if not to unlawfully deprive Diedricks of possession
of
the vehicle, and subvert the vindicatory action? This, after he
was given notice of the intended spoliation proceedings. The most
plausible and readily apparent inference to be drawn from the above
facts,
[46]
is that throughout, Monteiro acted mala fide, with the intention of
despoiling Diedricks of possession and undermining the vindicatory
action.
[67]
For these reasons, the high court’s finding
that Monteiro unlawfully dispossessed Diedricks of the vehicle, and
that he took
an easier route by taking the law into his own hands so
as to avoid the vindicatory action, cannot be faulted. Monteiro’s
version that a spoliation order should not have been granted because
he was no longer in possession of the vehicle, or because
the order
could not be complied with as restoration was impossible, does not
raise a genuine dispute of fact. That version is so
clearly untenable
that the high court rightly rejected it merely on the papers.
[47]
This approach is permitted because motion proceedings are quicker and
cheaper and it is in the interests of justice that unvirtuous
respondents should not be allowed to hide behind patently implausible
versions on affidavit.
[48]
For this reason, the robust practice of rejecting a plainly untenable
version on the papers alone, referred to in
Fakie
,
[49]
is not out of place in spoliation proceedings.
[68]
As has been shown above, the high court was
correct to grant an urgent spoliation order against Monteiro, in
light of his patently
untenable version and the circumstances at the
time that the application was launched and when judgment was
delivered. However,
more than a year has passed since the granting of
that order. There is no evidence as to the present whereabouts of the
vehicle
or who has possession or ownership of it. Does the
possibility, in the particular circumstances of this case, that an
order to
restore possession of the vehicle may not be able to be
carried into effect leave Diedricks without a remedy? In my
view,
not, particularly because it was Monteiro who by his conduct,
made it impossible for Diedricks to obtain full relief.
[50]
[69]
For these reasons, I consider that a declaratory
order that Diedricks was unlawfully dispossessed of the vehicle,
together with
an order for costs in the high court, is
appropriate.
[51]
This, it seems to me, is a matter of principle: the essential aim of
the
mandament van spolie
,
which is deeply rooted in the rule of law, is the preservation of the
legal order, by preventing individuals from taking the law
into their
own hands to enforce their rights. Its purpose is to vindicate the
rule of law.
[52]
As Prof Kleyn has observed, the Constitutional Court’s decision
in
Ngqukumba
‘underscores
and heralds a re-look at the interpretation and application of South
African common law provisions within the
new supreme constitutional
context’.
[53]
The
relief against the second appellant
[70]
Autoglen opposed the spoliation application on the same grounds as
the first appellant.
It claimed that Diedricks was not entitled to
any relief at all; that he was not in possession or control of the
vehicle at the
time of the dispossession; and that it was unable to
return the vehicle to Diedricks ‘due to the documentation
handed to
[Sergio] on behalf of the third respondent [Monteiro]’.
As stated earlier, Autoglen handed the vehicle to Monteiro on 29
August 2019 after he had convinced the dealer principal to do so and
undertook to deal with any consequential issues. It did so
on the
impermissible basis that Diedricks was not the owner of the vehicle.
As already stated, a court does not consider title,
or the merits of
the case, in a spoliation application.
[71]
It is common ground that when the spoliation application was
launched, Diedricks
was unaware of what had transpired at the
dealership on 29 August 2019, more specifically that Autoglen had
handed over the vehicle
to Monteiro. That Autoglen was a
co-spoliator, in my opinion, is also beyond doubt. However, in the
replying affidavit Diedricks
gave notice of his intention to amend
the notice of motion that possession of the vehicle be restored only
by Monteiro; and to
seek a costs order against both Autoglen and
Monteiro because of their collective actions which resulted in the
dispossession.
[72]
Given Diedricks’ stated intention not to proceed against
Autoglen, the high
court erred in granting the order that it did
against Autoglen. On the facts, and given that Diedricks achieved
substantial success,
I consider it reasonable that in relation to
Autoglen, he should be awarded costs up to and including the date of
delivery of the
replying affidavit, ie 2 September 2019.
[73]
In the result, I would make the following order:
1
The first appellant’s appeal is dismissed with costs, including
the costs of two
counsel.
2
The second appellant’s appeal succeeds with costs.
3
Paragraphs 2 and 3 of the order of the court a quo are set aside and
replaced with the
following order:
‘
1
It is declared that the third respondent on 29 August 2019 unlawfully
despoiled the applicant of
his possession of a BMW motor vehicle with
engine number 67259275 and chassis number WBA8F36060NT48007.
2
The third respondent is directed to pay the applicant’s costs
of suit.
3
The second respondent is directed to pay the applicant’s costs
of suit, up to
and including 2 September 2019.’
A.
SCHIPPERS
JUDGE
OF APPEAL
Plasket JA
[74]
I am in agreement with the order proposed by my brother Goosen AJA
and agree too with his reasoning for arriving
at the conclusion that
the appeal should succeed with costs. Consequently, I disagree with
the order proposed by my brother Schippers
JA and with his reasons
therefor. I consider it necessary to deal briefly with why I disagree
with his reasoning. In doing so,
I rely largely on the facts set out
by Goosen AJA in paragraphs 3 to 7 of his judgment.
[75]
Schippers JA’s judgment raises two issues that require
consideration. The first is the capacity in which
Monteiro acted and
whether he was a co-spoliator; and the second is whether Monteiro was
able to restore possession of the vehicle
to Diedricks.
[76]
It is undoubtedly so that Monteiro played a prominent role in the
spoliation of the vehicle and its disposal by
sale. This, on its own,
does not necessarily mean that, as Schippers JA concluded, he was ‘a
co-spoliator’ or ‘
the
spoliator’. Given these conclusions, it is necessary to
consider the facts in finer detail. Those facts are, on the basis
of
the
Plascon-Evans
rule,
[54]
the facts put up by Diedricks that have not been disputed or denied,
and the facts put up by Monteiro and Sergio.
[77]
What appears clearly from Monteiro’s answering affidavit is
that, at all times, he acted in a representative
capacity on behalf
of Street Talk Trading, a company. He acted in that capacity because
he was a director of the company. It must
be accepted as a fact for
purposes of this case that the vehicle at the centre of this dispute
belonged to Street Talk Trading.
Monteiro stated that, on 28 August
2019, Autoglen advised Street Talk Trading by SMS that the vehicle
was at its premises for a
service. It did so because, according to
Sergio, Autoglen’s records reflected that Street Talk Trading
was the owner of the
vehicle. Because Street Talk Trading was the
owner of the vehicle, Monteiro, obviously in his capacity as a
director, told Sergio,
when they met on 29 August 2019, ‘that
the motor vehicle should be handed to Street Talk and not to the
applicant’.
And Monteiro expressly made it clear that he acted
in a representative capacity when Street Talk Trading sold the
vehicle to Kioilos
on 29 August 2019: having stated that the sale
agreement was concluded orally, he said that ‘I represented
Street Talk and
Mr Kioilos acted personally’.
[78] It is clear too from Sergio’s
answering affidavit that whatever Monteiro did, he did on behalf of
Street
Talk Trading: Monteiro provided Sergio with proof that Street
Talk Trading was the owner of the vehicle; when Monteiro spoke to
Sergio for the first time on the afternoon of 28 August 2019, he
tried to persuade Sergio to hand over the vehicle to ‘the
owner’; and the following morning, when they met for the first
time, Monteiro succeeded in persuading Autoglen ‘to
release the
motor vehicle to the owner against the payment of the invoice in
relation to the service which had been carried out,
and on condition
that he, the third respondent, would deal with any issues which could
arise from [Autoglen] handing the vehicle
over to the owner’.
[79]
Sergio’s interactions with Louis and Diane are to the same
effect: they told him that they ‘represented
the owner of the
motor vehicle’ and provided him with proof of Street Talk
Trading’s ownership; Louis made it clear
to Sergio that ‘as
far as the owner was concerned, I was not to return the motor vehicle
to [Diedricks]’; and Sergio
told Diedricks that ‘on
instructions of the owner, I had given the keys of the motor vehicle
to Louis on its behalf’.
By this stage, Sergio had never had
any dealings with Monteiro and there is no evidence that Louis and
Diane acted on his instructions.
[80] In my view, Schippers JA has
misconstrued the evidence in important respects. First, it was not
Monteiro who told
Sergio, immediately after the SMS was sent
automatically, that the vehicle was not to be returned to Diedricks
but should be handed
over to Street Talk Trading. Instead that was
the upshot of Sergio’s dealings with Louis and Diane. Secondly,
when Sergio
spoke to Diedricks on the afternoon of 28 August 2019, he
did not tell him that Monteiro had instructed him to give the keys to
Louis. Rather, he told Diedricks that, on the instructions of ‘the
owner’, he had given the keys to Louis ‘on
its behalf’.
Thirdly, Sergio did not say, when Diedricks went to Autoglen (armed
with spare keys), that Monteiro had told
him not to release the
vehicle to Diedricks. Instead, it was Louis who had said earlier that
the owner’s view was that the
vehicle should not be released to
Diedricks, and Sergio had simply told Diedricks that ‘due to
the documentation handed to
me on behalf of the third respondent, I
was unable to give him the motor vehicle’.
[81]
This reference to the ‘third respondent’ requires
clarification. It cannot be a reference to Monteiro
because, at that
stage, on the afternoon of 28 August 2019, Sergio had not had any
dealings with Monteiro, and Louis and Diane
had not mentioned him:
all they had said was that they represented the owner. Furthermore,
it was only ‘[l]ater that same
afternoon’ that he had ‘a
discussion’ with Monteiro. In these circumstances, it is fair
to assume that the reference
to the third respondent was, in fact,
intended to be a reference to Street Talk Trading.
[82]
The effect of Schippers JA’s judgment is to collapse the
distinction between the separate legal personality
of Street Talk
Trading and its human agents such as Monteiro. It also has the effect
of collapsing the distinction between a principal
and an agent by
seeking to visit liability on an agent for a representative act on
behalf of the principal. Both of these outcomes
are in conflict with
first principles of company law
[55]
and the law of agency.
[56]
They would have far-reaching and deleterious consequences for both
company law and the law of agency.
[83]
The visiting of liability on Monteiro is not a proper or acceptable
alternative to the course Diedricks ought to
have followed namely,
citing Street Talk Trading as a respondent, rather than one of its
agents. His failure to do so is inexplicable,
and no attempt was made
to explain or justify this failure. In the light of the litigation
concerning the ownership of the vehicle,
Diedricks must have known of
Street Talk Trading’s claim of ownership; and if he did not, he
was apprised of this fact clearly
enough before he deposed to his
founding affidavit in this matter. Despite amending his notice of
motion (in his reply) in order
to change his target for the
spoliation order from Autoglen, he chose to cite Monteiro and seek an
order against him, rather than
Street Talk Trading. In my view, this
amounts to a fatal non-joinder.
[84]
I turn now to the second issue, which is in truth the nub of the case
– whether restoration of the vehicle
to Diedricks by Monteiro
is possible, and whether an order directing restoration of possession
would be effective. Schippers JA
found that restoration was not
impossible and that the court below was correct in finding that the
sale of the vehicle was mala
fide. The order proposed by Schippers
JA, however, does not confirm the order of the court below. Instead,
it would set aside that
order and replace it with an order declaring
that the dispossession was unlawful. I am of the view for the reasons
that follow
that the finding and the proposed order are both
unsustainable.
[85]
It is a defence to an application for a mandament van spolie that it
is impossible for the person who dispossessed
the possessor to
restore possession of the spoliated property to him or her. The
reason that underpins this defence is that courts
generally do not
make orders that cannot be carried out. Whether restoration of
possession is possible or not is a question of
fact.
[57]
[86] It is not in dispute that Monteiro, in
his capacity as a director of Street Talk Trading, sold the vehicle
to one
Kioilos, and that the vehicle was delivered to Kioilos. (There
is no evidence upon which an inference may be drawn that Kioilos
was
not a bona fide purchaser.) Monteiro’s evidence of the sale was
rejected by Schippers JA on the basis that it did not
create a
genuine dispute of fact and was ‘clearly untenable’. I am
unable to agree.
[87]
There was no dispute of fact insofar as the sale of the vehicle by
Street Talk Trading to Kioilos is concerned.
In the founding papers,
an order was sought against Autoglen only, because Diedricks
obviously believed that Autoglen was in possession
of the vehicle.
Evidence of the sale of the vehicle only emerged in Monteiro’s
answering affidavit and, in his reply, Diedricks
said that he had ‘no
knowledge of the alleged sale of the vehicle’. Diedricks never
applied for Monteiro to be cross-examined
on the issue. Monteiro’s
version that Street Talk Trading sold the vehicle must be accepted,
even if Monteiro did not provide
the detail that Schippers JA
expected him to provide. The absence of those details does not alter
the fact that the evidence is
that the vehicle was sold and delivered
to Kioilos. That is an inescapable bottom line: the vehicle has been
sold and is no longer
in the possession of Street Talk Trading.
[88]
In order for Monteiro, in his personal capacity, to restore
possession of the vehicle to Diedricks, as he was ordered
to do by
the court below, he would have to take legal steps to set aside the
contract of sale entered into by Street Talk Trading
and Kioilos. It
seems to me that he may encounter insurmountable difficulties. For
instance, I have my doubts that a person who
is not a party to a
contract has standing to institute proceedings to set it aside.
Secondly, if he cleared this hurdle, he would
have to establish a
basis for the setting aside of the agreement. No one has suggested
what this may be. Even if a ground was established,
Kioilos may take
the view that he wishes to abide by the contract even if it was
induced by a misrepresentation or non-disclosure.
All of this
illustrates that, whatever one thinks of Street Talk Trading’s
conduct in selling the vehicle, the issuing of
an order directing
Monteiro – in his personal capacity, I stress – and not
Street Talk Trading, to restore possession
of the vehicle to
Diedricks, would be an exercise in futility. The order would be
impossible to enforce.
[89]
I do not understand why Schippers JA, having rejected the defence of
the impossibility of the restoration of the
property, proposed the
alteration of the order of the court below to a declarator that
Monteiro ‘unlawfully despoiled’
Diedricks of his
possession of the vehicle. On the one hand, to issue a declarator
rather than an order directing the restoration
of possession defeats
the purpose of a mandament van spolie. Its very object is that
‘possession of the thing of which the
applicant has been
dispossessed should be restored to him’.
[58]
If, on the other hand, he entertained doubts that possession could be
restored, a declarator could not have been made because a
successful
defence would have been raised.
[90]
Schippers JA’s reliance on
Jamieson
and Another v Loderf (Pty) Ltd and Others
,
[59]
in which a declarator was issued, requires brief consideration. This
judgment is not authority for the proposition that a declarator
may
be issued if restoration of possession is impossible. The declaratory
relief granted on appeal is tied tightly to the peculiar
facts of the
case. The appellants had brought an application for a mandament van
spolie. The application was dismissed. They took
the matter on appeal
to a full court. After the dismissal of the application, but before
the hearing of the appeal, the property
was sold by the first
respondent. The full court concluded that the appellants should have
succeeded in the court of first instance
but, because of the disposal
of the property, could not make the order that should have been made.
Instead, in order to reflect
the success of the appeal in these
unusual circumstances, the full court replaced the court of first
instance’s order dismissing
the application with a declarator
that the dispossession had been unlawful. Similar circumstance do not
prevail in this case.
[91]
For these reasons, additional to those set out in Goosen AJA’s
judgment, I am in respectful agreement with
the order proposed by
him.
C. PLASKET
JUDGE
OF APPEAL
Appearances
For
first appellant:
H A
Van der
Merwe
Instructed
by: Maree & Partners, Bloemfontein
For
second appellant: B D Hitchings
Instructed by: Maree & Partners, Bloemfontein
For
respondent:
M S Baloyi SC
C Rowji
Instructed
by: Webbers Attorneys, Bloemfontein
[1]
This is the national vehicle
registration system established in terms of the National Land
Transportation Act 5 of 2009.
[2]
The high court made no order
against BMWSA. It is accordingly not before this Court.
[3]
Van Rhyn and Others NNO v
Fleurbaix Farm (Pty) Ltd
2013
(5) SA 54
(WCC) para 7.
[4]
Rikhotso v Northcliff
Ceramics (Pty) Ltd and Others
1997
(1) SA (W) at 532G-I.
[5]
Tshwelopele Non-Profit
Organization and Others v City of Tshwane Metropolitan Municipality
and Others
2007
(6) SA 511
(SCA) para 24.
[6]
Schubart Park Residents
Association and Others v City of Tshwane Metropolitan Municipality
(Socio-Economic Rights Institute of
South Africa as amicus curiae)
2013 (1) SA 323
(CC) para 24.
[7]
Malan v Dippenaar
1969
(2) SA 59
(O) at 65G-66A; see also
Painter
v Strauss
1951 (3)
SA 307
(O);
Sityata
v Eastern Cape Development Corporation
[2018] ZAECMHC 34.
[8]
‘
In my view a Court
would be entitled to make an order against a spoliator for the
return of possession of spoliated property even
if he is no longer
in possession thereof unless, for one or other reason – proof
thereof being on the spoliator –
it is clear that it will be
impossible for him to carry out the Court’s order’.
[9]
Burnham v Neumeyer
1917
TPD 630
at 633;
Jivan
v National Housing Commission
1977 (3) SA 890
(W) at 894A – 896G.
[10]
Jamieson
and Another v Loderf (Pty) Ltd and Another
[2015] ZAWCHC 18.
[11]
See
Administrator,
Cape and Another v Ntshwaqela
1990
(1) SA 705
(A) at 720; [1990] 2 All S 34 (A)
[12]
Ibid at 720.
[13]
Eke v Parsons
[2015] ZACC 30
;
2016 (3) SA
37
(CC) para 12.
[14]
Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd
1984
(3) SA 623 (A).
[15]
WA Joubert and J A Faris
The
Law of South Africa
2 ed (2014) vol 27 at 113 para 74.
[16]
P J Badenhorst, J M Pienaar and H Mostert
Silberberg
and Schoeman's The Law of Property
5 ed
(2006). at 292.
[17]
Lawsa
fn 15 at 81 para 74.
[18]
Lawsa
fn 15 at 81 para 75.
[19]
Lawsa
fn 15 at 84 para 78.
[20]
Lawsa
fn
15 at 85 para 80.
[21]
Rubin v Botha
1911 AD 568
at 579;
Groenewald v Van
Der Merwe
1917 AD
233
at 240;
Lawsa
fn 15 at 86 para
80.
[22]
Yeko v Qana
1973
(4) SA 735
(A) at 739D-E.
[23]
Bennett Pringle (Pty) Ltd v Adelaide
Municipality
1977
(1) SA 230
(E) at 233.
[24]
Lawsa
fn
15 at 84 para 78.
[25]
Bennet Pringle
fn 24 at 233.
[26]
Ibid.
[27]
Lawsa
fn
15 at 84 para 78.
[28]
Bank van die Orange Vrystaat v Rossouw
1984
(2) SA 644
(C) at 648C.
[29]
Bank van die Orange Vrystaat
fn 28
at 648H.
[30]
Bank van die Orange Vrystaat
fn 28
at 648C. Emphasis
added. My translation:
‘
It
will be recalled that it [the bank] obtained the vehicle from the
possession of a third party after it had paid the third party
to
relinquish its right of retention. In my opinion, the defendant
at
that stage was not in possession
of the vehicle. In other words,
the necessary
detentio
on the part of the defendant was
lacking.’
[31]
Tswelopele
Non-Profit Organisation and Others v City of Tshwane Metropolitan
Municipality and Others
2007
(6) SA 511 (SCA) para 22;
Ngqukumba
v Minister of Safety and Security and Others
[2014] ZACC 14;
2014
(7) BCLR 788 (CC); 2014 (5) SA 112 (CC); 2014 (2) SACR 325 (CC)
paras
10-12.
[32]
Adminstrator, Cape, and Another v Ntshwaqela
and Others
1990 (1)
SA 705
(A) at 718G-719A.
[33]
See
Lawsa
fn
15 at 113 para 107 and the authorities there collected.
[34]
Lawsa
fn 15 at 124
para 111.
[35]
Ntshwaqela
fn 32.
[36]
Ntshwaqela
fn 32 at
718C-F.
[37]
Ntshwaqela
fn 32 at
718H-719A. Emphasis added. My translation:
‘
7.2.2.7
Against whom the mandament may be sought
The
mandament is in the first place directed at the spoliator
himself/herself. Moreover, those who gave an instruction for an
act
of spoliation (principal), as well as those who ratify if (
rationem
habere
) can be held liable. The reason for the liability of the
latter persons is according to Zoesius, “quia ratihabitio in
delictis
mandato comparatur”. The idea is thus that the person
who ratifies is regarded as a principal and therefore as a
socius
delicti
. Where the spoliator who has acted on instruction is
sought to be held liable, the interposition of the principal is not
permitted
because spoliation is a “species delicti.” The
question whether the principal and the agent or only one of the two
can be held liable, is left unanswered by the said writers.’
[38]
Emphasis added.
[39]
Nino Bonino v De Lange
1906 TS 120
at 122;
Nienaber
v Stuckey
1946 AD
1049
at 1053;
Lawsa
fn 15 at 124 para 111.
[40]
Tswelopele
fn 31 para
21;
Ngqukumba
fn 31
para 10.
[41]
Lawsa
fn 15 at 120 para 110.
[42]
Silberberg and Schoeman's The Law of Property
fn 16 at 305.
[43]
Painter v Strauss
1951 (3) SA 307
(O) at
318B-D;
Malan v
Dippenaar
1969 (2)
SA 59
(O) at 65H-66C;
Silberberg and
Schoeman's The Law of Property
fn 16
at
305.
[44]
Ntshwaqela
fn 32 at 720G-H.
[45]
Ntshwaqela
fn 32 at 720G-H.
[46]
Ocean Accident and Guarantee Corporation Ltd
v Koch
1963 (4) SA 147
(A) at 159D, affirmed
in
Kruger v National Director of Public
Prosecutions
[2019] ZACC 13
;
2019 (6) BCLR
703
(CC) para 79.
[47]
Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-635C.
[48]
Fakie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) paras 55-56.
[49]
Fakie
fn 48 para 56.
[50]
Jamieson and Another v
Loderf (Pty) Ltd and Others
[2015]
ZAWCHC 18
para 59.
[51]
Jamieson
fn
48 paras 59 and 62.
[52]
Ngqukumba
fn
31 para 10.
[53]
D G Kleyn and B Bekink ‘The
Mandament van Spolie, The Restitution of Unlawful Possession and the
Impact of the Constitution’
2016 (79)
THRHR
308
at 321.
[54]
Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd
fn
47 at 634E-I.
[55]
Du Bois (ed)
Wille’s
Principles of South African Law
(9 ed) at 400-401;
Webb
& Co v Northern Rifles; Hobson & Sons v Northern Rifles
1908 TS 462
at 464-465;
Morrison
v Standard Building Society
1932 AD 229
at 238;
Lewis
& Co (Pty) Ltd v Pietersburg Ko-operatiewe Boere Vereeniging and
Others
1936 AD 344
at 353.
[56]
Du Bois fn 55 at 997-998;
Blower v Van
Noorden
1909 TS
890
at 899-900.
[57]
Administrator, Cape and
Another v Ntshwaqela
fn
11 at 720C-H.
[58]
Burnham v Neumeyer
fn 9 at 633.
[59]
Footnote 10.