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2023
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[2023] ZAFSHC 156
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Maruping v Matlala (5973/2022) [2023] ZAFSHC 156 (21 April 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 5973/2022
In
the matter between:
TIRELO
MARUPING
Applicant
And
PRECIOUS DINEO
MATLALA
Respondent
JUDGMENT
BY:
C REINDERS, J
HEARD ON:
23 MARCH 2023
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The date and time for hand-down is deemed to be 15H40 on 21 April
2023.
[1]
A blue Hyundai Getz motor vehicle (“the vehicle”) forms
the
subject matter of this application which is based on the
mandament van spolie.
[2]
In her amended notice of motion the applicant prays for declaratory
relief
that the averred dispossession of the vehicle be found
unlawful, and further orders directing, amongst others, the
respondent (or
any other person) from interfering with her possession
of the vehicle, restoration of her undisturbed possession of the
vehicle
and her full and unimpeded access to the vehicle.
[3]
The respondent opposed the relief claimed on the basis that the
applicant
was not spoliated. She moreover proffers the defence of
impossibility in that the vehicle is no longer in her possession as
it
had been sold to a third party who had taken possession of the
vehicle.
[4]
In her founding affidavit the applicant averred that she had been in
the peaceful
and undisturbed possession of the vehicle since 1
November 2019 after she had purchased it from Mr P Matlala (since
deceased).
She had paid for services, the licensing discs and the
like in respect of the vehicle. In her founding affidavit applicant
avers
that she was approached by the respondent and an unknown lady
and gentleman on 11 November 2022 at her workplace in Kimberley where
the vehicle was parked in a parking lot. She was informed by the
respondent that she (respondent) had come to collect the vehicle
as
it belonged to the deceased (respondent’s late husband to whom
she had been married in community of property), but she
resisted the
request to hand over the key and vehicle. She attempted to block the
respondent’s access to the vehicle but
was then “pushed
away” from the vehicle, resulting in the respondent taking
possession of the vehicle without her consent.
Applicant avers that,
at the time of launching of the application (which was initially
brought on an urgent basis) she was still
in possession of the
“spare” key of the vehicle. The applicant states that the
respondent is capable of restoring the
possession of the vehicle to
her as it is still in her possession and had not been sold.
[5]
The respondent in her answering affidavit denied that the events had
occurred
as averred by the applicant. She avers that she and her late
husband bought the vehicle in 2019, where after he had used the
vehicle
for travelling to his place of work in Kimberley where he had
stored the vehicle. Upon his death, she discovered that he had an
affair with the applicant. She went to the said workplace accompanied
by her sister’s daughter and her husband (“the
couple”).
The applicant was informed that she (respondent) had come to fetch
the vehicle and applicant was requested whether
she was in possession
of the car keys, which she admitted. Applicant then accompanied them
to the vehicle, handed over the vehicle’s
keys and removed her
possessions. Respondent denied having had any physical contact with
the applicant and averred that the applicant
consented to her taking
the vehicle and handed her the keys. Confirmatory affidavits of the
couple were annexed. On or about 18
November 2022 she sold the
vehicle to one Mr Malefane in terms of a verbal agreement who, after
having paid the purchase price,
took possession thereof. The
vehicle was, at the date of deposing to the affidavit, still in his
possession.
[1]
[6]
In her replying affidavit the applicant denied the version of the
respondent
and insisted that she had been unlawfully, forcefully and
without her consent dispossessed of the vehicle while she was in
peaceful
and undisturbed possession thereof. When faced with the
opportunity to reply to the respondent’s version that the
vehicle
was no longer in her (the respondent’s) possession,
applicant did not deny that there was a sale of the vehicle or, more
importantly, that a third person took possession of the vehicle and
was at the time of adjudicating this application, still in possession
thereof. The applicant rather replied that the said agreement of sale
was not done for any bona fide purposes and was void as a
result of
the contravention of s13(1) of the Administration of Estates Act.
[7]
It is trite that the mandament van spolie is a possessory remedy
aimed at restoring
the
status
quo ante
.
It is not concerned with the underlying rights to claim possession of
the property. It seeks only restoration
.
It does so by mandatory order irrespective of the merits of any
underlying dispute regarding the rights of the parties.
[2]
The despoiled person need to prove that she was in possession of the
object and that she was wrongfully deprived of such possession
without her consent.
[3]
From the
different versions tendered by the parties as alluded to above, it is
evident that a factual dispute arose in this application.
It is
incumbent on an applicant to satisfy a court on a balance of
probabilities that she is entitled to the relief sought by proving
the aforementioned, based on the well-known test as enunciated in
Plascon-Evans
Paints
.
[4]
[8]
On the version of the respondent the applicant was indeed in
possession
of the vehicle when she (the respondent) fetched the
vehicle in Kimberley, so the first requirement for spoliation could
in my
view not be seriously disputed. The question is thus whether
the applicant was deprived of her possession of the vehicle
unlawfully.
It is the applicant’s case that such dispossession
was done unlawfully, forcefully and without her consent. The version
of
the respondent (confirmed by two supporting affidavits) is that
the applicant consented to the respondent taking the vehicle by
freely handing her the keys thereof.
[9]
I am unable to find that the version tendered by the respondent can
be
said to be untenable or far- fetched. On applicant’s own
version she was, at the time of deposing to her founding affidavit
still in possession of the “spare” key of the car. This
begs the question how the respondent would have managed to
drive the
car if not given the keys to the vehicle. The respondent’s
version is that applicant handed her the keys to the
vehicle. It is
not the applicant’s version that such keys were forcefully
taken from her. In my view the consent of
the applicant for the
removal of the vehicle by providing the respondent with the keys to
the car, negates the notion that applicant
was unlawfully deprived of
her possession of the vehicle. Accordingly, the applicant has not
succeeded in proving that she is entitled
to the relief claimed,
namely restoration of her possession of the vehicle.
[10]
Even if I am wrong in my conclusion herein as stated above, the
applicant must still
cross the hurdle relating to the defence of
impossibility as tendered by the respondent.
[11]
Recently the Supreme Court of Appeal in
Monteiro
and Another v Diedericks
[5]
dealt with the question whether in an application for mandament van
spolie the court can order a party to restore possession of
goods of
which it is not in possession. A BMW motor vehicle was the subject
matter on facts that are similar to the application
in casu, where
the vehicle was at the time also not in the possession of the
spoliator but in that of a third. Goosen AJJA (Dambuza
and Plasket
JJA concurring) dealt comprehensively with case law setting out the
principles applicable to mandament van spolie,
confirming the
principle that the remedy is possessory in nature. Reference was made
to
Administrator,
Cape and Another v Ntshwaqela
[6]
wherein the principle was enunciated that the court will not make
orders which cannot be carried out with Nicolas AJA holding:
“
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.”
The
order of the trial court that the party not in possession of the
vehicle must restore possession thereof to the spoliated party,
was
set aside
[12]
As indicated in para [9] above, the application should be dismissed
as the applicant
did not succeed in proving on a balance of
probabilities that she had been despoiled of the vehicle. Moreover,
it is not disputed
by applicant that a third party was in possession
of the vehicle when the application was instituted. It would not have
been possible
for the respondent to remove the vehicle from such a
party. In my view, and based on
Monteiro and Another v
Diedericks supra
, the applicant would in any event not have
been successful in claiming the relief as requested. There is
no reason why cost
should not follow the event.
[13]
Accordingly the following order is granted:
The
application is dismissed with costs.
_________________
C
REINDERS, J
On
behalf of applicant:
Adv
T Mogwera
Instructed by:
Thlong
Attorneys
c/o
Fixane Attorneys
BLOEMFONTEIN
On
behalf of respondent:
Adv
Z Nyezi
Instructed
by:
Vosloo
Attorneys
BLOEMFONTEIN
[1]
At para 6.15 of Respondent’s answering affidavit
[2]
Van Rhyn and Others NNO v Fleurbaix Farm (Pty)Ltd 2013 (5) SA 54
(WCC)
[3]
Ngqukumba v Minister of Safety and Security
2014 (5) SA 112
CC at
para 13
[4]
Plascon -Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3)
SA 623 (A)
[5]
(Case no 1199/19) [2021] ZASCA 015(2 March 2021)
[6]
1990 (1) SA 705
(A) at 720 G-H