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[2017] ZANCHC 30
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Ntshoeu v Smith (CA&R107/16) [2017] ZANCHC 30 (11 April 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE
DIVISION,
KIMBERLEY)
Case
No: CA&R 107/16
Heard
On: 20/02/2017
Delivered
on:
1
1/04/20
1
7
In
the matter between
JAN
NTSHOEU
Appella
n
t/Respondent
And
OOKAME
E
SMITH
Responde
n
t/Applicant
JUDGMENT
ON APPEAL
PAKATI
J
[1]
The appellant/respondent,
Mr
Jan
Ntshoeu, appeals against
an
order
granted
by
Magistrate
PP
Tshweu
relating
to
a
mandament van spolie
that
was
brought
on
urgent
basis
by
the
respondent/applicant, Mr
Ookame
Smith,
in
the
Kuruman Magistrates
Court.
For
the
sake
of
convenience I
will
refer
to the partie
s
by the
i
r
names.
[2]
On 16 October 2015 Mr Smith was granted the following order:
"1.
The applicant's [Mr Smith's] non-adherence to this Court's Rules
relating to the time periods and service be condoned and
the
application be heard as a matter of urgency in terms of the
provisions of Rule 55 (l);
2.
That the rule nisi be issued calling upon [the} respondent [Mr
Ntshoeu] to show cause, if
any, on Thursday, 19 November 2015 at
09:00 why the following order should not be granted;
2.1
That [Mr Ntshoeu] be ordered to restore possession and control of
motor vehicle Renault Kolias 4x4 with
registration Number [B....]to
[Mr Smith] immediately,·
2.2
That [Mr Smith] be restrained and/or interdicted from interfering
with [Mr Smith] in any manner
whatsoever in his possession of the
said motor vehicle.
3.
Directing that prayers 2.1 to 2.2 will serve as an interim interdict
with immediate effect pending the outcome of
this application.
4.
That a rule nisi calling upon [Mr Ntshoeu] to show cause (if any) on
19 November 2015 at 09:00 why prayer
2 above shall not be confirmed.
5.
That [Mr Ntshoeu] pays the costs of this application.
6
That the interim order be served on [Mr Ntshoeu] in accordance with
Rule 9 of the Court Rules. "
The
application for a
rule nisi
was unopposed and was
granted as prayed for.
[3]
On
05
November
2015
Mr
Ntshoeu filed
opposing
papers
but
Mr
Smith did
not
file
a
Reply
i
ng
Affidavit.
On 19 November 2015,
after
hearing
argument,
the
Magistrate
confirmed
the
rule.
Mr
Ntshoeu filed
a Notice Request
Reasons
for
Judgment
on
the
same
day
and
also
requested that
execution
of
the
order
be
suspended
in
terms
of
s
78
of
the
Magistrates Court Act
,
32 of
1944
,
pending
the
appeal.
S 78 provides:
"78
Execution
or
suspension
in
case of appeal, etc
Where
an appeal has been noted or an application to rescind, correct or
vary a judgment has been made, the court may direct either
that the
judgment shall be carried into execution or that execution thereof
shall be suspended pending the decision upon the appeal
or
application. The direction shall be made upon such terms, if any, as
the court may determine as to security for the due performance
of any
judgment which may be given upon the appeal or application "
[4]
On 17 February 2016 the Magistrate provided these reasons:
"
REASONS
FOR JUDGMENT
Please
take note that the judgment delivered by the court on the 19/11/15
under case 1467/2015 shouldn't have been given in favour
of the owner
(Ookame Smith).
After
considering the facts of both parties placed before the court I
realised an error of judgment was made regarding the remedy
of
spoliation.
It
is not in dispute that [Ookame Smith] is the owner of the [motor
vehicle] and still paying it under an instalment sale agreement
with
Absa.
He
handed the [motor vehicle] to (Jan Moncho) for repairs.
At
the time when he handed the [motor vehicle} together with the keys
possession was then transferred and he later had control,
possession
and undisturbed use of the said [motor vehicle] for a period of ten
months.
Whatever
happened during this period is irrelevant.
Looking
at the objects of spoliation, despite the fact that he was not the
rightful owner he had spoliator rights.
The
objects of spoliation are as follows:
1
. To restore the possession of the things possessed.
2.
To put a stop to unlawfully taking the law into own hands.
3.
To protect the person who apparently has a possessory right.
4.
Prevent disturbance of public peace.
This
remedy includes restitution of possession and the performance of acts
such as repairs and rebuilding the necessary restoration
status quo
ante.
This
is what happened in this matter, the repairer who is the mechanic
must be restored of his control and undisturbed possession
of the
[motor vehicle] handed to him regardless that he is the owner.
There
are other remedies available in law which can be used by a lawful
owner to recover what is his.
[The]
applicant
[Mr Smithj had shown that:
•
He was in possession
of the vehicle Renault Kolias registration
Number [B....]
•
He was
wrongfully deprived of the
[motor vehicle]
without consent.
Costs
given at an attorney and client scale. "
[5]
It is clear from the reasons above that the Magistrate altered the
content of her judgment thereby discharging the rule which
she had
already confirmed on 19 November 2015. This constitutes an
irregularity as she
wa
s
functus officio
at
the time.
[6]
Mr Ntshoeu
filed
a
Notice
of
Abandonment
on 05 May 2016 which records:
"Kindly
take notice that [Mr Ntshoeu] hereby abandons the revised judgment
given in its favour on the 17'h day of February
2016 as this step was
irregular.
[Mr
Ntshoeu] is abandoning the said judgment solely to enable himself to
lodge an appeal against the original judgment given by
the Honourable
Magistrate on 19 November [2015]. "
[7]
Mr Ntshoeu filed a Notice of Appeal with the Registrar on 05 May
2016.
In
his Notice
of
Appeal he recorded
the
following
grounds:
"1.
That the Honourable Magistrate erred in finding that [Mr Smith] was
in undisturbed and peaceful possession of the Renault
Kolias 4 x 4
vehicle Registration Numbers and letters [B....], as the said vehicle
was in the possession of [Mr Ntshoeu];
2.
That the Honourable Magistrate erred in finding that [Mr Ntshoeu]
unlawfully deprived [Mr Smith] of possession
of [the] said Renault
Kolias 4 x 4 vehicle with Registration Numbers and letters BZY 735
NC
as
[Mr Smith] gave the vehicle to [Mr Ntshoeu] to do necessary repair
work;
3.
In the aforementioned [judgment] the Honourable Magistrate
erred in granting the application based on the principle
of
spoliation; and
4.
The Honourable Magistrate erred in an attempt to correct his errors
in
the
reasons filed on the 17
th
day of February 2016
even though correct.
He
was functus officio and therefore this attempted
correction was irregular. "
The
appeal is unopposed.
BACKGROUND
FACTS
[8]
During November
2014
Mr Smith was involved
in
an accident while
driving
his
motor
vehicle,
a 4 x
4 Renault
Kolios
with
Registration
N
umber
[B....].
He
approached
Mr
Ntshoeu, a
Panel
Beater
and
owner
of J's Panel Beaters. By agreement Mr Smith placed the motor
vehicle
in Mr Ntshoe's possession
by hand
ing over the keys and the
motor
vehicle
for
repairs.
They
agreed
further
that
Mr
Smith
would
buy
all
the
necessary parts. It
took
Mr
Ntshoeu a
period of
ten months to fix
the
motor vehicle. It
is
common cause that Mr Smith failed to pay the
costs
of repairs
as they
could
not
reach
an
agreement
regarding
the
amount.
[9]
During
September
2015
Mr
Smith
learned
that Mr Ntshoeu
had
fixed
the
motor
vehicle and was driving it around without
his knowledge
and
consent.
He went to Mr Ntshoeu's house but did not find him home.
[10
]
On
25 September 2015 Mr Ntshoeu
refused
to release Mr
Smit
h
'
s
motor
vehicle
unless
he
paid
the
amount
of
R57 000-00
for
storage
exclud
i
ng
labour.
According
to
Mr
Smith
Mr Ntshoeu
was
unreasonable
and
charged
an exorb
i
tant
amount.
Mr
Smith
accordingly approached the
Magistrates Court seeking the
mandament van spolie.
He
claimed
that
he
was
in peaceful and
undisturbed
possession of his motor
vehicle.
[
1
1]
The
urgency
was
based
on
the
follow
i
ng:
10.1
That Mr Smith is the registered
owner of the motor vehicl
e
;
10.2
That he was still paying its instalments towards its purchas
e
;
10
.
3
That Mr Ntshoeu
should
not have
used
it
for
business
purposes
as he
has thereby increased
its kilometers and
decreased
its
value;
10
.4
That
he
was
using
public
transport
but
pay
i
ng
for
a
motor
vehicle
driven
by
Mr
Ntshoeu;
10
.5
That he is the
lawful
possessor
but has
been
unlawfully
deprived
of
the
use
of
his
motor
vehicle; and
1
0.6
That urgency was not
self-created.
[12]
Mr Ntshoeu
denied
that
he did not inform
Mr
Smith
of
the cost of repairs.
He
states
that
he
gave
him
a rough
estimate, which
is not
a quotation
.
Mr
Ntshoeu
further
says
he
and
Mr
Smith
agreed
that
Mr
Smith
would
pay
R1
00-00
per
day
for
storage.
To
save
Mr
Smith
some
costs
he
obtained
cheap
parts
which
cost
R
1
9
590-00
and
charged
R4
500
for
labour.
He
denied
that the amount he demanded
was
unreasonable.
Mr Smith persists
in
his refusal to pay for the repairs and storage.
[13]
Mr Ntshoeu
is
claiming
a lien
over the motor vehicle to the
repairs
he
has
effected from 21 November
2014.
[14]
The issue that falls for determination is whether Mr Smith was in
peaceful and undisturbed possession of his motor vehicle.
Mr Ntshoeu
to the contrary claims that he had in fact been in undisturbed
possession and control of the motor vehicle for almost
a year and
denies that he unlawfully deprived Mr Smith of the possession
thereof.
[15]
In
order
to
succeed
with
an
application
for
spoliation
an
applicant
must
allege
and
prove
that
he
or
she
was
in
peaceful
and
undisturbed
possession
of
the
property
or
right.
[1]
In
the
LAW
OF
SOUTH
AFRICA
(LAWSA)
[2]
it
is
stated
that
the
spoliation
order
or
mandament
van
spolie
is
available where:
"(a)
a person has been deprived unlawfully of the whole or part of his or
her possession of movables or immovable;
(b)
a joint possessor has been deprived unlawfully of his or her co
possession by his or her partner
taking over exclusive control of the
thing held in joint possession;
(c)
a person has been deprived unlawfully of his or her quasi-possession
of a servitutal right
(d)
a person has been deprived unlawfully of his or her quasi-possession
of other incorporeal rights.
In
case (c) and (d) the courts have warned that the application of the
spoliation principles to incorporeal rights require
closer
investigation and more subtle treatment and that one must
distinguish carefully between rights incidental to the
quasi-possession of the right and a mere right to claim specific
performance of a contractual or statutory obligation.
Illicit
deprivation of possession in any of the ways mentioned above is
termed spoliation. "
[16]
Mhlantla JA in
IVANOV
v
NORTH
WEST
GAMBLING
AND
OTHERS
[3]
held
:
"Spoliation
is the wrongful deprivation of another's right of possession. The aim
of spoliation is to prevent self-help. It
seeks to prevent people
from taking the law into their own hands. An applicant upon proof of
two requirements is entitled to a
mandament van spolie restoring the
status quo ante. The first is proof that the applicant was in
possession of the spoliated thing.
The cause for possession is
irrelevant - that is why a thief is protected. The second is the
wrongful deprivation of possession.
The fact that possession is
wrongful or illegal is irrelevant, as that would go to the merits of
the dispute. "
[1
7]
It
is
common
cause
that
Mr
Smith
handed
over
his
motor
vehicle
to
Mr
Ntshoeu
during
November
2014
for
repairs.
The
motor
vehicle
remained with
Mr
Ntshoeu
for
more
than
ten
months.
Mr
Smith
cannot
therefore
claim
that
he
was
unlawfully
deprived
of
his
motor
ve
hicle,
without
his
consent
or
without
due
legal
process
.
Good
title
i
s
irrel
evant.
Mr
Smith
claimed
a substant
i
ve
right
to
possession
based
on ownership which
cannot stand in these
proceedings.
[18]
Mr
Smith
failed
to
prove
the
unlawful
deprivation
of
possession
by
Mr
Ntshoeu.
The appeal has to succeed.
In
the circumstances I grant the following order:
1.
The
appeal
is
upheld
with costs
including
the
costs
m
the
Magistrates
Court.
_____________________
PAKATI
J
NORTHERN
CAPE DIVISION
I
concur
_____________________
MAMOSEBO
J
NORTHERN
CAPE DIVISION
For
the
appellant:
Adv
D
.C
Jankowitz
Instructed
by:
Hugo Matthewson & Oosthuizen
For
the
respondents:
No
appearance
Instructed
by:
No
appearance
[1]
I
m
pa
l
a
Water
Users
Association
v
Lourens
NO
2008
(2)
SA
495
(SCA);
Kgosana v
Otto
1
991
(2)
SA
1
13
(W)
[2]
Vol
27 par 94
[3]
20
1
2
(6)
SA
67
(SCA)
at
para
1
9.
See
also
Street
Pole
ads
Durban
(Pty)
Ltd
and
Another
v Ethekwini
Municipality
2008 (5)
SA
290 (SCA) at para
1
5
where
Cameron
JA
stated: "That
i
s
because good
title
is
irrelevant:
the
cl
aim
to
spoliatory
re
lief
arises so
le
ly
from
an unprocedural deprivation of possessio
n
.
There
i
s
a
qualification,
however,
if
the
applicant goes further and
claims
a
substantive right to possession, whether based on
title
of
ownership or on contract. In
that
case, 'the respondent may answer such additional claim
of
right
and may demonstrate, if he can,
that
applicant does not have the right to possession which it
cl
aims'.
This
is
because
such an appl
icant
'in
effect
forces an investigatio
n
of
the issues
relevant
to
the further relief
he
claims.
Once
he
does
this,
the
respondent's defence in
regard
thereto has
to
be
considered."