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[2018] ZAECMHC 46
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King Sabata Dalindyebo Local Municipality v Noah (CA&R19/2018) [2018] ZAECMHC 46 (21 August 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION - MTHATHA)
CASE
NO.: 3478/2016
APPEAL
CASE NO.: CA & R 19/2018
In
the matter between:
KING
SABATA DALINDYEBO
LOCAL
MUNICIPALITY
Appellant
and
THOBANI
NOAH
Respondent
FULL
BENCH APPEAL JUDGMENT
HUISAMEN
AJ
[1]
This is an appeal against a declaratory
order with costs, made by Notununu AJ on 4 July 2017, with respect to
the unlawful impoundment
of the respondent’s motor vehicle.
The appeal comes before us with the leave of the Supreme Court of
Appeal, after
an application for leave to appeal had been dismissed
by the Court
a quo
on 25 October 2017.
[2]
It is the respondent’s case that he
had parked his motor vehicle in an open parking space next to the
Home Affairs building
in Mthatha on 28 September 2016.
[3]
The respondent, being a practicing
attorney, was running a trial in the regional court in Mthatha at the
time. During the
course of the trial he was informed that his
vehicle had been impounded.
[4]
The respondent subsequently went to the
appellant’s pound where he was informed that he had to pay an
amount of R3 000,00
for the release of his vehicle.
According to the officials the vehicle had been unlawfully parked in
an undemarcated area.
The respondent requested to meet with the
head of the pound, who was unavailable. The remaining officials
in charge at the
unit were unwilling to assist him in getting his
vehicle back.
[5]
On 30 September 2016 the respondent brought
an application in the Eastern Cape Local Division, Mthatha, for the
following relief:
“
1.
That the applicant be and is hereby granted leave to institute this
application;
(a)
Utilizing Form 2(a) and;
(b)
In accordance with Rule 6(12)(a) of the Rules of this Honourable
Court.
2.
That the Applicant’s non-compliance with the 72 hour notice in
terms of the General Law Amendment Act when instituting
urgent
proceedings against an organ of state be and is hereby condoned;
3.
That Rule Nisi be issued calling upon the Respondent to show cause,
if any, before this Honourable Court on Tuesday 18
th
day of October 2016 at 10h00, or so soon thereafter as the matter may
be heard, why an order in the following terms should not
be made
final,
3.1
declaring the respondent’s conduct to impound applicant’s
motor vehicle to wit a VW Polo red in colour with registration
letters and numbers H[…] EC wrongful and unlawful;
3.2
Interdicting and restraining the respondent and any person acting in
cohorts with the respondent from further unlawfully impounding
applicant’s motor vehicle to wit a VW Polo with registration
letters and number H[…] EC;
3.3
Ordering and directing the respondent to return the applicant’s
motor vehicle VW Polo with registration letters and numbers
H[…]
EC forthwith to the applicant.
4.
That respondent is directed to pay costs of this application on an
attorney and own client scale;
5.
That paragraph 3.3 shall operate as interim interdict and/or mandamus
pending the finalization of this application
”
[6]
According to the respondent the decision to
impound and retain his vehicle was wrongful and unlawful and
inconsistent with the provisions
of the
National Road Traffic Act No.
93 of 1996
, as amended. The respondent therefore demanded that
the vehicle be returned to him forthwith.
[7]
On 30 September 2016 the appellant filed a
notice of opposition to the respondent’s application. On
the same day the
matter came before Brooks J, who then made an order
in the following terms, by agreement between the parties:
“
1.
The Respondent is hereby ordered to return the Applicant’s
motor vehicle VW Polo with registration letters and numbers
H[...] EC
forthwith to the Applicant;
2.
The respondent is to file it’s answering affidavit, if any, by
the 11
th
of October 2016;
3.
The applicant to file it’s replying affidavit, if any, by the
17
th
October 2016;
4.
Both the Applicant and the Respondent are to file their respective
heads of arguments by the 25
th
of October 2016;
5.
The matter be postponed to Tuesday, 1
st
November 2016 at 10h00am;
6.
Costs shall be costs in the cause.
”
[8]
On 18 October 2016 the appellant filed its
answering affidavit in which its deponent contended,
inter
alia
, as follows:
(a) The
respondent’s vehicle was parked on a sidewalk next to the Home
Affairs Building in Mthatha;
(b) The vehicle was
unoccupied;
(c) A traffic fine
of R500,00 was issued for the traffic violation, whereafter the
vehicle was removed and impounded;
(d) The vehicle was removed in terms
of the law. In this regard the deponent refers to
Regulation
305(6)
of the Regulations issued in terms of the
National Road
Traffic Act which
provides as follows:
“
Whenever
a vehicle has been parked in contravention of the Act, any by-law
made under the Act, or in contravention of or in disregard
of the
directions of any road traffic sign or notice board as prescribed in
those regulations, such vehicle may be removed or caused
to be
removed and impounded by a traffic officer.
”
[9]
The appellant also relies on the provisions
of
section 20
of the
Criminal Procedure Act No. 51 of 1977
, which
provides,
inter alia
,
that:
“
The
State may, in accordance with the provisions of this Chapter, seize
anything (in this Chapter refer to as an article) –
(a)
which is concerned in or is on reasonable grounds believed to be
concerned in the commission or suspected commission of an offence
whether within the Republic or elsewhere;
”
[10]
On 25 October 2016 the respondent filed his
replying affidavit in which he denied that his vehicle was parked
unlawfully.
He furthermore contended that his vehicle was not
parked in contravention of the
National Road Traffic Act. He
also contended that
section 20
of the
Criminal Procedure Act was
not
applicable to the facts of the matter.
[11]
The respondent furthermore points out, in
reply, that the order granted by Brooks J was not in the form of a
rule nisi
,
but was a final order that was granted by consent between the
parties. The application has therefore become academic on
the
main issue leaving costs as the only outstanding issue for
determination.
[12]
The matter eventually came before Notununu
AJ who found,
inter alia
,
as follows:
(a) that
section 20
of the
Criminal Procedure Act was
not applicable to the facts of the
matter;
(b) that there was
a dispute of fact regarding whether the respondent’s motor
vehicle was parked on the sidewalk or the pedestrian
area as alleged
by the appellant, or in a demarcated parking bay as alleged by the
respondent. Such a dispute of fact must,
however, be real and
not fictitious;
(c) that in the
present case the appellant’s version consisted of bald and
uncreditworthy denials, raised fictitious disputes
of fact and was
palpably implausible and farfetched. In the circumstances the
learned Judge had no difficulty in rejecting
the perceived disputes
of fact on the papers;
(d) that the matter
was finally disposed of in accordance with the consent order granted
by Brooks J on 30 September 2016 in that
the order did not
incorporate a
rule nisi
;
(e) that the only
plausible explanation for the consent order was that the appellant
had conceded the unlawfulness and wrongfulness
of the impoundment of
the vehicle.
[13]
The learned Judge then held that costs
should follow the result, and made the following order:
“
(1)
The respondent’s conduct to impound applicant’s motor
vehicle to wit a VW Polo red in colour with registration letters
and
numbers H[...] EC be and is hereby declared wrongful and unlawful.
(2)
The respondent be and is hereby ordered to pay costs of the
application.
”
[14]
The appellant is appealing against the said
order of Notununu AJ on the following grounds, namely that:
(a) the Court erred
in finding that the respondent’s version consisted of bald or
uncreditworthy denials, that it raised fictitious
disputes of fact
and was palpably implausible and farfetched;
(b) the Court erred
in rejecting the photograph of the place where the motor vehicle was
parked, which was annexed to the appellant’s
answering
affidavit;
(c) the Court erred
in not finding that the issues in the matter raised real disputes of
fact which could not be resolved on the
papers;
(d) the Court erred
in not dealing with the provisions of
Regulations 304(1)(e)
,
304
(4)
and
305
(6) of the
National Road Traffic Act, as
these provisions,
according to appellant, constituted the respondent’s primary
defence in the matter;
(e) the Court erred
in finding that the matter was solely before the Court for the
determination of costs;
(f) the Court erred
in not determining the issue of an interdict in its judgment;
(g) the Court erred
in finding that
section 20
of the
Criminal Procedure Act was
not
applicable in the matter;
(h) the Court erred
in finding that the concession to release the respondent’s
vehicle amounted to a concession that the vehicle
was unlawfully and
wrongfully impounded.
[15]
The
application brought by the respondent was in the form of a
mandament
van spolie
.
The essence of the
mandament
van spolie
is that the person who has been deprived of his or her possession
must first be restored to his or her former position before the
merits of the case can be considered. The main purpose of the
mandament
is to restrain persons from taking the law into their own hands by
inducing them to submit the matter to the jurisdiction of the
Courts.
[1]
[16]
A
mandament
van spolie
is available where a person has been deprived unlawfully of his or
her possession of moveables or immovable property, as well as
where a
person has been deprived unlawfully of his or her quasi-possession of
other incorporeal rights.
[2]
[17]
It is
critical to mention that a
mandament
van spolie
order, by its very nature, is final in effect.
[3]
[18]
It is plain from the order of Brooks J of
30 September 2016 that it was granted by consent between the parties.
It was argued before
us that the lawfulness of the impoundment of the
vehicle stood over to be dealt with on the return day. However, if
this were so
the order of Brooks J should not have been agreed to. It
was implied in the consent to the spoliation order that the required
element
of unlawfulness was conceded.
[19]
In terms of paragraph 1 of the order of
Brooks J the appellant was ordered to return the respondent’s
motor vehicle forthwith.
This order was final in effect and is
not subject to the appeal before us.
[20]
Notununu AJ exercised his discretion to
award costs to the respondent on the basis that the respondent was
successful in the matter.
[21]
I fail to see any basis upon which this
Court could possibly interfere with the exercise of Notununu AJ’s
discretion on the
issue of costs. The respondent’s
primary objective was to regain possession of his vehicle. The
appellant duly
agreed to return the vehicle to the respondent,
without any condition attached to such return, and without
incorporating a
rule nisi
.
This rendered paragraph 1 of the order of Brooks J final in effect.
The respondent had therefore indeed achieved substantial
success in the matter.
[22]
In the circumstances it is unnecessary for
us to determine the factual issue relating to whether or not the
respondent’s vehicle
was unlawfully parked, which is indeed an
issue which would be difficult, if at all possible, to decide on the
application papers
before us.
[23]
Although I furthermore doubt that there is
merit in the appellant’s contention that the provisions of
section 20
of the
Criminal Procedure Act are
in any event applicable
herein, it is likewise unnecessary for us to decide this issue.
[24]
It might be prudent to mention that, even
if the aforesaid issues (relating to the place where the respondent
had parked his vehicle
and the applicability of
section 20
of the
Criminal Procedure Act), we
re determined in the appellant’s
favour, it would, in my view, not disturb the final order granted by
Brooks J in relation
to the return of the vehicle.
[25]
In the circumstances:
The
appeal is dismissed with costs.
________________________________
J D HUISAMEN
ACTING JUDGE OF THE HIGH COURT
I agree
________________________________
R E GRIFFITHS
JUDGE OF THE HIGH COURT
I agree
________________________________
I T STRETCH
JUDGE OF THE HIGH COURT
ATTORNEY FOR APPELLANT: Mr Zono
INSTRUCTED
BY: A. S. Zono & Associates
COUNSEL FOR RESPONDENT: Mr Malunga
INSTRUCTED
BY: Makangela Mtungani Inc.
HEARD ON: 06 August 2018
DELIVERED ON: 21 August 2018
[1]
See
LAWSA
– Mandament van Spolie, paragraph 93
[2]
See
LAWSA
(supra), paragraph 94
[3]
See
Nienaber
v Stuckey
1946 AD 1049
at 1053