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[2021] ZAECMHC 11
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Obena v Minister of Police and Others (1182/2021) [2021] ZAECMHC 11 (13 April 2021)
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Certain
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IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, MTHATHA)
CASE
NO. 1182/2021
Reportable
In
the matter between:
NONCEDILE
OBENA
Applicant
and
THE MINISTER OF
POLICE 1
st
Respondent
THE STATION
COMMANDER,
2
nd
Respondent
TINA FALLS, LIBODE
THE SHERIFF,
QUMBU
3
rd
Respondent
NOLUYANDA
MADIKANE-OBENA
4
th
Respondent
PAMELLA
ZIDE 5
th
Respondent
JUDGMENT
MBENENGE JP:
Introduction
[1]
The subject matter of this application is a Toyota Corolla bearing
registration letters and numbers
BJ[…]
[1]
(the motor vehicle), and two supersonic speakers (the speakers).
[2]
The items form part of the estate of the late Lusindiso Obena
(the deceased), who met his demise on 1 September 2019.
[2]
The dispute at hand involves the applicant and the fourth respondent
as contestants and is a scramble
for possession of the motor vehicle
and the speakers.
[3]
The applicant is a resident of Ngwenyama Locality, Qumbu, and the
mother of the deceased.
[4]
The fourth respondent is surviving spouse of the deceased with whom
she was married by civil rights
on 5 February 2018.
Background
[5]
The motor vehicle and the speakers were removed from the homestead
wherein the applicant resides (the
homestead) by the fourth
respondent acting in concert with members of the South African Police
Service (the police), on 11 March
2021.
[6]
Following this incident, there was an exchange of correspondence
between the parties through their attorneys
of record. In this
correspondence, the fourth respondent acknowledged that the
items were, at all times relevant hereto,
under the control of the
applicant.
[3]
The fourth
respondent’s unrelenting stance was also that, as the surviving
spouse, she was ““
entitled
”
. . .
to
be now the owner
.”
In one of the letters, the demand for the release of the items
was made on pain of “
moving
an application to the high court,
”
which “
would
render applicant liable for legal costs in (sic) a punitive scale
.”
On behalf of the applicant it was stated that she was “
inclined
to settle the matter
”,
but “[needed]
to
obtain all the relevant information to make an informed decision in
respect thereof
.”
[4]
Nothing concrete eventuated beyond this point. More about this
later.
The seizure challenged
[7]
The applicant thereafter launched the instant proceedings seeking, by
way of urgency, an order declaring
the dispossession
[5]
of the items unlawful and unconstitutional, as also a
mandamus
that “
the
respondents be directed to restore
[to
her]
possession
. . .of
[the
items].”
[8]
By the time the application served before me, the fourth and fifth
respondents had delivered their answering
affidavit. The rest
of the respondents, who had no complicity in the acts complained of,
have not opposed the application.
Mr
Malala
,
who appeared for the applicant, was content to argue the application
without the delivery of an affidavit in reply to the answering
affidavit. Regard being had to the speedy nature of the relief
sought, and in the midst of a huge motion court roll,
[6]
I invited the parties to advance argument on the understanding that
no further affidavits would be delivered, which they did. Judgment
was reserved, but purely for the sake of completeness, the parties
were afforded the opportunity to thereafter file heads of argument,
which they have done.
The applicant’s
case
[9]
Stripped of verbiage, the applicant’s case is that she took
possession of the motor vehicle and
the speakers from the deceased
when the latter was leaving for the labour centres, Rustenburg, in
January 2019. The motor
vehicle was utilised “
for
family needs,
” and the speakers “
for social
entertainment
.”
[10] The
applicant contends that at about 16h00 on 11 March 2021, she was
dispossessed of the items by “
the respondents
”,
who, upon invading the homestead, forcefully seized the motor vehicle
and the speakers, after demanding the motor vehicle’s
keys,
which she surrendered amidst resistance. The seizure, laments
the applicant, was unlawful in that the items were not
liable to be
seized. It is further contended that the actions of the
respondents constituted a breach of the applicant’s
rights to
“
privacy, property,
[and]
dignity enshrined in the
Bill of Rights
.”
The fourth
respondent’s case
[11] The
version of the fourth respondent is straightforward. A while
after the demise of the deceased, and by
“
Letters of
Authority
” issued by the Master of the High Court, Mthatha
on 18 February 2021, she was authorised to take control of the assets
of
the estate of the deceased reflected in an inventory embodied in
the Letters
.
The inventory comprises:
Assets
Amount
1. Unclaimed monies
Ref 20014077- Sibanye Stillwater
R125 755.47
2. PKG 708 GP - Toyota
Corolla
R68 000
3. Personal effects
(speakers) – Speakers
R6 000
[12] On the
strength of the authorization, she, in the company of law enforcement
officers, one of whom was the second
respondent, attended upon the
homestead whence the items were removed. The homestead is said
to be “
the common home belonging to the deceased’s
grandmother, Mamxolwa Obena, which the applicant
[is occupying]
as her homestead
.”
[13] The
fourth respondent denies that the applicant was in possession of the
items. In amplification thereof,
she states that after the
deceased had purchased the motor vehicle in Rustenburg, it was
brought to Qumbu, where it was parked
in a garage that she and the
deceased had built at the homestead. On occasion, when back
home, Qumbu, she and the deceased
would use the motor vehicle. It
was parked there with strict instructions that no one uses the motor
vehicle without her
and the deceased’s permission. The
only person permitted to drive the motor vehicle was Dompass Gqokoma.
The
applicant kept the car keys, which she was entrusted by the
fourth respondent for safekeeping, and was at no stage authorised to
use the motor vehicle and the speakers.
[14]
Furthermore, the fourth respondent deplores the citation of the
respondents who had no complicity in the acts complained
of in these
proceedings. The third respondent, she says, never seized
the items or instigated the impugned seizure.
The fifth
respondent was also not involved in seizing the items.
Issues for
determination
[15] Flowing
from the above, the issues that have arisen for determination are-
(a)
whether the applicant was in possession of
the items at the time of the impugned dispossession;
(b)
whether the dispossession was lawful; and
(c)
what costs order should be made.
[16]
Subject to what is stated herein below, it is available to a litigant
to apply not only for spoliatory relief,
but also a declaratory order
as to the applicant’s own rights.
[7]
The
issues adumbrated above make it plain that what is central to these
proceedings is whether the
mandament
van spolie
should be granted, or not. In my view, but for the quest for an
order declaring the seizure unconstitutional (as against
being merely
“
unlawful
”)
as well, the
manadament
van spolie
,
also justiciable in the Magistrates’Courts,
[8]
would suffice. This is so because an affirmative answer to the
enquiry into the unlawfulness of the dispossession of the
items
concerned is, strictly speaking, and subject to the second requisite
being fulfilled, capable of disposing of the case without
the need
for an order declaring the dispossession unlawful. Otherwise
the applicant in spoliatory proceedings would be at
liberty to
simulateneously seek an order declaring, for example, that he was in
possession of the item when it was being seized.
That would not
only make non-sense of the object of a declatory order but would
negate the self-sufficient nature of the
mandament
van spolie
,
whose object is mainly restoration of the despoiled article.
[17]
A determination that the applicant was in possession of the items and
that his dispossession thereof was unlawful
would render the
declaratory relief superfluous and bereft of any practical effect on
the parties or on others.
[9]
Also, a declaratory order of unlawfulness would be a mere statement
of the law as enshrined in the requisites for the grant
of a
manadament
van spolie
.
The absence of a controversy regarding the relevant legal
position and the availability of other remedies
[10]
are factors against granting a declaratory order in terms of
section 21(1)(c)
of the
Superior Courts Act 10 of 2013
.
[11]
[18]
Section 172 (1)(a) of the Constitution makes it obligatory for Courts
to declare conduct found to have been inconsistent
with the
Constitution unconstitutional.
[12]
This by no means imply that an invocation of the section
eschews the Court’s discretion. Purely because no issue
was made of the appropriateness or otherwise of the quest for relief
declaring the seizure unconstitutional, consideration will
be given
thereto.
Thus, in addition to the
issues outlined above, there is a further issue, which is whether the
conduct complained of constituted
a breach of the applicant’s
constitutional rights to dignity, privacy and property.
Requirements for a
manadament van spolie
[19]
Two factors are requisite to found a claim for an order for
restoration of possession on an allegation of spoliation,
namely,
first, whether the applicant was in possession of the object and,
second, whether the applicant was unlawfully deprived
of that
possession.
[13]
Was the applicant in
possession of the items?
[20]
The law lays down certain requirements before a person is deemed to
be a possessor in order for the consequences
to realise. The
specific content of possession depends on the context within which
and the purpose for which it is employed.
[14]
Determining whether possession has indeed been established
depends on all the facts and circumstances of a particular case.
This already daunting task is exercebated when facts are scant
and conflicting versions are presented before court. However,
where, as here, the facts are common cause or not in dispute, the
task is made easier.
[21]
It was argued by Ms
Zide,
on behalf of the fourth and fifth respondents, that the possession of
the items, in this case, was not of a kind that warrants
the
protection accorded by the remedy. For this submission,
reliance was placed on
Mbuku
v Mdinwa,
[15]
where Hefer CJ held:
“
In
any event, I am of the view that an agent who has no interest in the
property which he holds for his principal, or who derives
no benefits
from holding it, is not entitled to claim the relief of a
mandament
van spolie
.
One should not forget that it is a remedy which is available to
a possessor; it has never, to my knowledge, been extended,
except
perhaps inadvertently, to a mere
detentor
but the
animus
possidendi
which is required to transform detention into possession is not the
intention required of old for so called civil possession; it
is no
more than the intention to hold the thing in question for one’s
benefit and not for another. And a
detento
r
who does not have that intention is indeed merely a
detentor
.”
[16]
[22] It was
accordingly argued that the applicant, having been a mere
detentor
,
derived no benefit from holding the items, and was thus not in
possession thereof at the time of the impugned seizure.
[23]
Although the weight of authority has hitherto supported the view
that, to qualify as a possessor in spoliation
proceedings, the holder
must have the intention to hold for his benefit,
[17]
the case law and legal writings on this subject have not been
unanimous.
[18]
[24]
In
Agha
v Sukan,
[19]
Alkema AJ (as he then was) dealt with the situation where the assets
concerned were spoliated after the deceased’s death
and,
relying,
inter
alia
,
on
Van
der Merwe
,
[20]
said:
“
.
. . if the possession of the respondent in this case does not qualify
for a spoliation order, who will ever qualify as an applicant
in
spoliation proceedings in respect of assets of a deceased immediately
after his death and before an executor is appointed? On
the
argument of the applicant, and on the judgment in Mdlulwa, apparently
no one. This will leave the assets in the estate
unprotected
and open to self-help without recourse to a court by anyone for a
spoliation order. This result defeats the very
object of
a
mandament van spolie
; namely to protect
society from people taking the law into their own hands.
How, then, should the
requirement of holding ‘
for own benefit
’ be
interpreted? It may be said with some force that a prospective
heir taking care of the deceased’s property
until an executor
is appointed is holding the property ‘for his own benefit’
in the sense that he has a spes to inheritance
to be protected. But
what of holders who are not heirs? In
casu
, the benefit
in the very narrow sense to respondent may be said to protect the
stock in trade . . . but even if I am wrong in this
finding, it is my
respectful view that the requirement of ‘intention to hold for
own benefit’ should be given a wider
meaning to include an
interest in the thing held, over and above the interest of a mere
detentor
. I have already indicated that there is support
for this view in the case law and jurisprudence of South Africa. Any
person holding property in terms of the above mentioned sections of
the Administration of Estates Act will, on such meaning, qualify
as
possessors to claim spoliation. On the narrow meaning, such
property may be open to self-help without remedy.”
[25]
I am of the view that in this case, too, holding “
for
own benefit
”
should be given a wider meaning. This is especially so where,
as in
Agha
[21]
,
the applicant had an interest in the items. She kept the items
under strict instructions not to allow others to use same.
The
property would be liable to self-help if she were to distance herself
therefrom purely by reason that she may not be
the heir. In any
event, she utilised the speakers for social entertainment. The
fact that she did not have the authority
to use the speakers (and the
motor vehicle) did not, in my view, detract from such possession.
[26] I,
therefore, conclude that the applicant was in possession of the items
when the fourth respondent and the police
dispossessed her of same.
The possession was of the kind warranting protection accorded
by the
mandament van spolie
.
Was the dispossession
lawful?
[27]
Acting in terms of section 18(3) of the Administration of Estate Act
66 of 1965 (the Act),
[22]
the
Master authorised the fourth respondent to take control of the assets
of the estate of the deceased,
[23]
and, after paying debts, transfer the residue of the estate to the
heirs entitled thereto by law.
[28]
According to the fourth respondent, “[t]
he motor vehicle and
the speakers were seized by the police after all attempts to approach
the matter in a proper way
. . .
failed and the police
assisted me to get the car through using the letter of authority from
the Master of the High Court and therefore
I submit that I never took
the motor vehicle unlawfully and unconstitutionally . . .
”
[29]
Statutory measures have to be interpreted in such a way that they
interfere as little as possible with the principle
that no person may
take the law into his or her own hands.
[24]
In
Minister
of Finance and Others v Ramos
[25]
it was held:
“
.
. . it should also be borne in mind that where a party opposing an
application for a
mandament van spolie
relies upon a statutory provision in order to support an averment
that he was entitled thereby to deprive the applicant of his
possession, without recourse to due process of law, and that such
deprivation or possession was therefore lawful, such statutory
provision must be restrictively interpreted. A person who
invokes the protection of such statutory provision will need to
establish that he acted strictly within its terms.
[30] It
becomes necessary, as part of the enquiry, to also consider whether
the impugned actions fell within the ambit
of the letters of
authority, which accorded the fourth respondent the power to “
take
control of the assets of the estate of the
[deceased].”
[31]
The terminological problem besetting us may be resolved by having
regard to the meaning of “
seize
”
and “
take
control
”.
To “
seize
”
means to “
take
hold of suddenly and
forcibly
.”
On the other hand, “
to
take control
”,
means to “
gain,
assume, or exercise the ability or authority to manage
something
.”
[26]
Clearly, these terms mean different things. The element
of force is absent when one takes control of something.
[32]
Upon a proper interpretation of section 18(3) of the Act, the Master
is accorded the power to authorise, in circumstances
such as the
present one, his representative to take control of the assets of the
estate of the deceased. In my view, that
power does not include
the power to seize. The Master may not grant the representative
more powers than he (the Master) has.
[27]
The manifest purpose of the section is to streamline the
administration process by providing an expedient procedure for
estates that are of a nominal value. The appointee is not an
executor, but the Master’s representative with the limited
powers specified in the letters of authority.
[28]
[33]
Therefore, neither the police nor the fourth respondent was entitled
to seize the motor vehicle and the speakers.
In acting as they
did, they resorted to self- help. The fact that the fourth
respondent called in the aid of the
police was also not sufficient to
justify the seizure of the items. Little wonder that the police
remained supine, and did
not enter the fray of the skirmish.
[34] The
irresistible inference to be drawn from the circumstances of this
case is that the aid of the police was solicited
so as to forcibly
remove the items, and to avert any possible form of resistance that
the applicant might mete out.
[35]
Observation needs to be made concerning the fourth respondent and the
manner in which she acted. The letters
of authority authorised
her to take control of the assets of the deceased and to transfer the
residue of the estate to heirs. She
laboured under the mistaken
but ill-begotten view that, even amidst protest, she was entitled to
dispossess the applicant of the
items. In so doing, she took
the law into her own hands. It is a matter of concern that when
she acted as she did she
had already engaged the services of her
attorneys of record, who ought to have known better and dissuaded her
from resorting to
self-help.
[36]
Peace in a community could not be maintained if every person who
asserted that he or she had a claim to a particular
thing was
entitled to resort to self-help to gain possession of a thing.
[29]
In
Ngqukumba
v Minister of Safety and Security,
[30]
Madlanga J remarked that “[s]
elf
help is so repugnant to our constitutional values that where it has
been resorted to in despoiling someone, it must be purged
before any
enquiry into the lawfulness of the possession of the person
despoiled.
”
[37] The
ineluctable conclusion to which I come is that the seizure of the
items was unlawful. Except for reliance
on the letters of
authority issued in terms of section 18(3) of the Act, which has been
proven to be unavailing, no other lawful
dispensation was pointed to
justifying the seizure.
Declaratory relief
[38] In terms
of section 10 of the Constitution everyone has inherent dignity and
the right to have their dignity respected
and protected. Section
14(a) - (c) of the Constitution accords everyone the right to
privacy, which includes the right not
to have their home and property
searched, and their possessions seized. In terms of section
25(1) no one may be deprived
of property except in terms of law of
general application, and no law may permit arbitrary deprivation of
property.
[39]
On the day in question, the fourth respondent and his cohorts stormed
the applicant’s premises, conducted
a warrantless search
therein and, amidst protest, forcibly removed the items from the
premises. There is no doubt that such
conduct constituted a
breach of the applicant’s constitutional rights to dignity,
privacy and property. It might be
that with
Ngqukumba
[31]
having clarified the legal position in relation to the nature and
ambit of the
mandament
van spolie
,
the quest for an order declaring unconstitutional the very conduct
that has resulted in the grant of a spoliation order will be
found to
be superfluous. That is a matter for another day.
Conclusion
[40] It
follows that the seizure of the items is liable to be declared
unconstitutional and that the applicant is entitled
to restoration of
possession of the items.
[41]
Let me, at the same time, caution that, nothing in this judgment
should be construed as suggesting that the fourth
respondent is
precluded from resorting to court and seek an order that the
applicant be directed to return the items to her, in
the event of her
demand for the applicant to surrender the items not being given heed
to. The law prescribes that the spoliated
thing be returned
ante
omnia
or
‘
at once
,’
hence the thing is to be returned to the applicant regardless of the
fact that she may immediately thereafter be dispossessed
of same with
the invocation of the due process of law.
[32]
[42] It can
only be hoped that lucidity will prevail, with the result that the
applicant will see her was clear to eventually
surrendering the items
to the fourth respondent, at the opportune stage, so as to
afford the fourth respondent considerable
latitude to give effect to
the letters of authority, thus avoiding another bout of unnecessary
costly litigation over items of
nominal value to the detriment of the
heirs. The items are part of the deceased estate and will
devolve upon heirs after
payments of debts, the existence of which
have yet to be established.
Costs
[43]
The award of costs is entirely a matter for the discretion of the
court which is to be exercised judicially upon
a consideration of the
facts of each case and, in essence, is a matter of fairness to both
sides.
[33]
[44]
This litigation concerns a deceased estate. The general rule
that costs follow the event is qualified in
litigation concerning
deceased estates.
[34]
Ordinarily, such costs may be ordered to come out of the
estate.
[35]
However, it
is as important that the Court ascertains the capacity in which
persons representing a deceased estate
litigate before orders
mulcting such estates in costs are made.
[36]
Where there was litigation involving executors but the court
found that the estate was merely a contest between two beneficiaries,
it refused to order that costs come out of the estate.
[37]
[45] We are
here dealing with a scramble for possession of items belonging to a
deceased estate by the litigants concerned
in their personal
capacities. Both parties ought to have known that the items in
this dispute formed part of the estate of
the deceased, but they
allowed their personal contest to cloud their judgment, resulting in
an application that could and should
have been avoided.
[46]
In these circumstances, the estate of the deceased ought not to be
mulcted in costs.
[38]
[47]
The applicant has attained victory in these proceedings. Generally
speaking, a successful party should be allowed
his or her costs, but
this is not a hard and fast rule: each case must be decided on its
own facts.
[39]
[48]
The general rule that costs follow the results is departed from,
inter
alia
,
where the successful party has acted in bad faith or is guilty of
reprehensible conduct. In such instances, the successful
party
may be ordered to pay the costs of his opponent,
[40]
or deprived of the whole or part of his costs.
[41]
The Court may also be fortified in its conclusion on costs by
the nature of the conduct of the losing (as opposed to the
successful) party.
[42]
[49]
The manner in which the applicant conducted this litigation is cause
for concern. Besides indicating that
the matter was possible to
settle and that she needed “
documents
”
[43]
to consider her stance, the papers are bereft of any
bona fide
steps taken to bring that wish to fruition. The fourth
respondent has this to say in her answering affidavit:
“
My
attorneys of record wrote a letter requesting the release of the
motor vehicle and it was served by the sheriff Qumbu and the
applicant promised to meet with family members and discuss the
matter, my attorneys waited for the response but after the five-day
period, a call from Mr
Malala
… enquiring about what was happening in the matter received
and it was explained to him and he promised to reply to the
aforesaid
letter. Me and attorneys of record visited the Master of the
High Court to amend the inventory which was not having
my husband’s
assets. I receipted the amended letter of authority dated 18
February 2021 as I was advised by Qumbu police
officials that if the
items were listed they can be in a position to accompany me to fetch
all that belongs to my husband as I
was the surviving spouse in the
estate of my late husband not the applicant. My attorneys of
record contacted me on the 24
February 2021 advising me that a letter
from [the applicant’s] attorneys [of record] was received
promising to consult with
the applicant and other family members and
the date of the meeting was the 25
th
of February 2021 and my attorneys wrote another letter to the
Master of the High Court and [the applicant’s] attorneys
requesting for Master of the High Court’s intervention and
directions as the applicant and her attorneys were delaying this
matter unnecessarily. After not receiving feedback for the
meeting of the applicant’s attorneys from my attorney of
record, I
lost
patience
and decided to visit the police officials of Tina Falls, Qumbu with
the letter of authority having the list of the goods that belongs
to
my husband and the car and speakers were part of the property. The
motor vehicle and speakers were seized . . .”
[44]
(Emphasis added)
[50]
These averments have not been gainsaid by the applicant in reply, and
on the
Plascon
Evans
rule,
[45]
they stand
unchallenged. The litigation, which could and should have been
avoided, at least by the applicant taking reasonable
steps to ensure
that meaningful settlement talks are held, was instead embarked upon,
without ado. Nothing, in the founding
papers, is said
concerning whether the documents that had been sought eventually came
to hand, or why litigation, as against settlement
talks, even after
the impugned seizure had been effected, was embarked upon. This
conduct is reprehensible.
[51] The
conduct of the applicant is not so reprehensible as to warrant
ordering her to pay the costs of the fourth
respondent. Nor
should the applicant, in my view, be deprived of her costs
altogether on the basis that she did not take
bona fide
steps to settle the matter.
[52] The
fourth respondent is also to blame. She did not only lose
patience when the applicant’s attorneys
were not coming to the
party after they had proposed settlement, but ended up taking the law
into her own hands aided by the police,
yet, as already pointed out
above, she had demandend the release of the items on pain of “
moving
an application to the high court
.”
[53]
In all these circumstances, and regard being had to the fact that the
matter was heard in the ordinary (and not
the opposed) motion
court,
[46]
costs should be on
the unopposed scale and ought not cover the drawing of the parties’
heads of argument filed after the
hearing.
Order
[54] I
therefore make the following order:
1.
The seizure of the motor vehicle namely,
a Toyota Corolla bearing register number BJ[…] and
registration letters and
number PKG […] (the motor vehicle)
and two supersonic speakers (the speakers) at the instance of the
fourth respondent is
declared unconsitutional.
2.
The fourth respondent is directed to
forthwith restore possession of the motor vehicle and the speakers to
the applicant.
3.
The fourth respondent shall pay costs of
this application incurred up to 16 March 2021 on the unopposed High
Court scale.
_______________________
S M MBENENGE
JUDGE
PRESIDENT OF THE HIGH COURT
Applicant’s
attorney :
L Malala
Mvuzo
Notyesi Inc
14
Durham Street
Mthatha
Respondent’s
attorney:
P N Zide
N
Zide & Partners Inc.
28
Madeira Street
Clublink
Building
Mthatha
Date
urgent application heard
: 16
March 2021
Date
judgment delivered
:
13 April 2021.
[1]
According
to a copy of the relevant certificate of registration, annexed to
the fourth and fifth respondents’ answering
affidavit, the
current registration letters and numbers of the motor vehicle is
“
PKG
708 GP
”.
[2]
The
motor vehicle and the speakers are otherwise collectively referred
to as “
the
items
.”
[3]
According
to the letter “
the
above motor vehicle
”
is “
under
your late son
”,
“
2
supper (sic) sonic speakers belonging to them are in
‘[the
fourth respondent’s]
possession’
”
and she is “
refusing
to release
[them]”.
[4]
The
correspondence was exchanged between 5 February 2021 and 24 February
2021.
[5]
“
Dispossession
”
and “
seize
”
are used interchangeably.
[6]
There
were no less than 170 matters enrolled for hearing in motion court.
[7]
For
example in
Scoop
Indutsries (Pty) Ltd v Laanglagter Estate and GM company Ltd
1948
(1) SA 91
(W), the applicant sought a
mandament
van spolie
together with an order declaring that he was the owner of some of
the articles that had been seized.
[8]
Depending
on the value of the subject matter (see section 30(1) read with
section 29(1)(g) of the Magistrates’ Court Act
32 of 1944).
[9]
President
of the Ordinary Court Martial and Others v Freedom of Expression
Institute and Others
[1999] ZACC 10
;
1999 (4) SA 682
(CC);
1999 (11) BCLR 1219
at para
16.
[10]
In
this instance, the
manadament
van spolie.
[11]
Herbstein
and Van Winssen: The Civil Practice of the High Courts and the
Supreme Court of Appeal (Vol 1) (5
th
Ed) 2009 pp 1438 – 1440; also see
Minister
of Finance v Oakbay Investments (Pty) Ltd and Others; Oakbay
Investments (Pty) Ltd and Others v Director of the Financial
Intelligence Centre
[2017] ZAGPPHC 576; [2017] 4 All SA 150 (GP); 2018 (3) SA 515 (GP).
[12]
Section
172(1)(a) of the Constitution provides:
“
When
deciding a constitutional matter within its power, a court –
(a)
must declare that any . . . conduct that
is inconsistent with the Constitution is invalid to the extent of
its inconsistency .
. . ”
[13]
Yeko
v Qana
1973 (4) SA 735
(A) 739E;
Mdlulwa
v Gwija
1992 (3) SA776 (Tk) and
Plaatjie
v Olivier
1993 (2) SA 156 (O).
[14]
Silberberg
and Schoeman’s, The Law of Property (6
th
ed), p 310-1.
[15]
Mbuku
v Mdinwa
1982 (1) SA 219
(Tk) at 332 - H.
[16]
Also
see
Mdlulwa
and Another v Gwija
(above n 13).
[17]
Mbuku
(above n 15);
Mdlulwa
above
n 13.
[18]
See
Mpunga
v Malaba
1959 (1) SA 853
(W) at 861 F;
Dlamini
and Another v Mavi and Others
1982 (2) SA 490
(W) at 492-3; Van der Merwe,
Sakereg
,
(2 ed) 125.
[19]
Agha
v Sukan
[2004] 3 All SA 421
D at 432.
[20]
Above
n 18 (p125-6
),
where
the following is stated:
“
‘
n
Laaste voortel is om die bedoeling om alle ander persone daarvan uit
te sluit. Hierdie voorstel hou in dat ‘n
verteenwoordiger of dienaar geregtig sal wees op ‘n mandament
van spolie vis-à-vis ‘n buitestaander maar nie
teen sy
prinsipaal of heer respektiewelik nie. Hoewel hierdie
standpunt tot billike resultate aanleiding gee, geniet dit
geen
steun in die regspraak nie. In gevalle van indirekte of
middellike besit mag die vraag in die toekoms ontstaan of
die
direkte sowel as die indirekte besitter op die mandament van spolie
geregtig is. Indien fisieke beheer namens ‘n heer
of werkgewer
deur ‘n dienaar of werknemer uitgeoefen word, huldig ons howe
die standpunt dat slegs die heer of die werkgewer
die mandament kan
instel. Indien ‘n direkte besitter soos ‘n agent
of huurder egter inderdaad die besitswil
het omm voordeel uit die
saak te trek, word ter oorweging gegee dat die agent of huurder,
sowel as die prinsipaal of verhuurder,
geregtig behhort te wees om
die mandament van spolie in te stel. Aangesien besit nie meer
so uitsluitend as in die Romeinse
reg is nie, kaan hierdie personne
as mede-besitters vir doeleindes van die instelling van die
mandament van spolie beskou word.
Die direkte besitter behoort
die eerste geleentheid te he om die mandament van spolie in te stel.
Indien hy egter
ongenee of nie in staat is om die mandament in
te stel nie, behoort die middellike besitter (naamlik die prinsipaal
of die verhuurder
in die bogenoemde voorbeeld), geregtig te wees om
van die spoediger mandament begruik te maak eerde as wat hy verplig
word om
die langsamer eiendomsaksie (die rei vindication) te
gebruik.”
[21]
Agha
above
n 19.
[22]
The
section provides:
“
The
Master may dispense with the appointment of an executor and give
direction as to the manner in which any such estate shall
be
liquidated and distributed.”
[23]
Unclaimed
monies totalling R125 755.47, the motor vehicle and the
speakers.
[24]
African
Billboard Advertising Pty Ltd v North & South Central Local
Councils, Durban
2004 (3) SA 223 (N).
[25]
Minister
of Finance and Others v Ramos
1998 (4) SA 1096
(C) at 1101 G - H.
[26]
Oxford
Dictionary.
[27]
Die
Meester v Protea Assuransie Maatskappy Bpk
1981 (4) SA 685
(T) at 690, where it was held “
die
Meester as ‘n skepping van die wetgewer en het slegs die
bevoegdhede wat deur die wetgewer aan hom opgedra is (the Master
is
a creature of the legislature and has only the power conferred on
him by the legislature)
”.
[28]
Ian
Mac Larren, Trusts/Wills and Estates.
[29]
Municipality
of George v Vena
[1988] ZASCA 166
;
1989 (2) SA 263
;
[1989] 2 All SA 125
(A). Also see
Greyling
v Estate Pretorius
[1947] 3 All SA 489
(W) at 517, where Price J said:
“
If
it became an established practice for the Court to fail to enforce a
spoliation order . . . we should very soon find that the
slender
paradise our toil has gained for us of an ordered community had been
lost and the dreadful ‘
reign of
chaos and old night
’ would be
upon us. The modern Montagues and Capulets . . . would soon
make our streets and thoroughfares hideous
with their disputes,
their fighting and their brawls – turbulence and civil
commotion would soon replace law of order and
decency.”
[30]
Ngqukumba
v Minister of Safety and Security
and
Others
ZACC
14; 2014 (7) BCLR (CC);
2014 (5) SA 112
(CC);
2014 (2) SACR 325
(CC)
at paras 10 - 13; also see
Monteiro
and Another v Diedricks
[2021] ZASCA 015
(SCA), where Goosen AJA (for the majority)
held that “
the
principle underlying the remedy is that the entitlement to
possession must be resolved by the court, and not by a resort to
self-help
.”
[31]
Id.
[32]
See
Dyani
v Minister of Safety and Security and Others
2001 (1) SACR 634
(Tk); also see
Sigwebendlana
v Minister of Police
(unreported decision of the then Supreme Court of Transkei,
delivered on 10 March 1994 under Case No 27/1994), where, in
relation
to the return of a motor vehicle that had been unlawfully
seized without a warrant, Davies AJ said:
“
If
an article has been illegally seized and is now being produced or
has infact been produced as an exhibit and the owner
wishes to get
it back, there is no reason at all why the police should not legally
seize the article if they have justification
for doing so. They
would normally be able to do so by obtaining a warrant authorising
the seizure if there are proper grounds
for such a warrant and in
this way
the police could
pari
passu
with the handing back of
the article, again under warrant, seize the article so that it can
remain an exhibit
.”. (Emphasis
added)
[33]
Wanders
Club v Boyes – Moffat
[2011] JOL 27764 (GSJ); 2012 (3) SA 641 (GSJ).
[34]
This
does not mean that the general rule that success carries costs is
not applicable in litigation relating to deceased estates
(
Ex
parte Ortlepp and Another
[1966] 2 All SA 140
(N);
1966 (1) SA 809
(N) 813).
[35]
Bonsma
v Meaker NO and Others
[1973] 4 All SA 269
(R);
1973 (4) SA 526
(R) 531;
Dempers
v The Master
(2)
1977 (4) SA 63 (SWA).
[36]
Cilliers,
Law of costs, 10.10 (10-16 (4 C) (10-12/12) (Issue 41).
[37]
Schoevers
v Schoevers
1965
(3) SA 655
(G) 661 at 665; Compare
Zalk
v Inglestone
1961 (2) 788 (W) at 794.
[38]
See
Laubscher
NO v Duplan and Another
(
Commission
for Gender Equality as amicus curiae
)
2017 (4) BCLR 415
(CC);
2017 (2) SA 264
(CC) at para 56 where, in
relation to costs, it was held:
“
The
applicant contendend that the costs should be costs in the deceased
estate. The respondent submitted that the ordinary
rules
relating to costs should apply. I am of the view that for
costs to come from the deceased estate would be unfairly
punitive
towards the successful party. Both parties made cogent
submissions and the losing party’s argument had substance-
which warranted the applicant’s persistence through to this
Court. Accordingly, the interests of justice dictate
that each
party should bear their own costs.”
[39]
Transvaal
and Orange Free State Chamber of Mines v General Electric Co
.
[1967] 1 All SA 95
(T) ;
1967 (2) SA 32
(T) 72 (appeal).
[40]
Merrington
v Davidson
(1905) 22 SC 148
;
Treatment
Action Campaign v Minister of Health
2005
(6) SA 363 (T) 371 H.
[41]
King
Pie Holdings (Pty) Ltd v King Pie (Durban) (Pty) Ltd
1984 (4) SA 1240 (D).
[42]
Qaqa
v Minister of Correctional Services and Another
[2018]
JOL 39784
(GP) at para 32.
[43]
No
specificity regarding the nature of these documents and what bearing
they would have had in her deciding on the matter was
given.
[44]
Sic.
[45]
Plascon
Evens Paints Ltd v Van Riebeek Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E – 635 C.
[46]
But
for the censure, the applicant would, inspite of the hearing having
been in the unopposed motion court, have been entitled
to
costs on the opposed scale.