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[2023] ZAFSHC 159
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Maruping v Matlala (5973/2022) [2023] ZAFSHC 159 (21 April 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
Yes / No
Of
Interest To Other Judges: Yes / No
Circulate
To Magistrates: Yes / No
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