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[2016] ZALMPPHC 16
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G and D Refrigeration CC v Mulder (HCA05/2016) [2016] ZALMPPHC 16 (28 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE
)
CASE
NO: HCA 05/2016
Reportable:
Yes
Of
interest to other judges: Yes
Revised.
28/10/2016
In the matter between:
G
AND D REFRIGERATION
CC APPELLANT
and
JPB
MULDER RESPONDENT
JUDGMENT- CIVIL
APPEAL
M.G. PHATUDI J
SUMMARY:
Application-spoliation-factul
possession and animus possidendi a requirement to protect
possession- the common law
corpus
abrogated by disuse in modem
days paradigm-
ius possessionis
to be distinguished
from ius
possidendi
– the holder of a thing entitted to
factual possession – unlawful deprivation amount to self –
help – a
party despoiled entilled to restoration ante omnia –
Civil Procedure:
Mandament van spolie – possessory remedy
aimed
at
restoration of dispossessed property Appellant committed act of
spoliation
– appeal dismissed with costs.
[1]
INTRODUCTION:
1.1.
This
is an appeal against the judgment of the Regional Magistrate Mr. S.J
Reynolds, sitting as Court of first instance. The application
was one
of Mandament van Spolie (spoliation). For the sake of convenience, I
shall refer to the parties as cited in the notice
of motion.
1.2.
The
Applicant (Respondent in this appeal) launched spoliation application
in the Court below seeking an order for the restoration
to him of
possession of the motor vehicle described as Nissan Navara 2.6 DCI
XE; with registration plate CLP 409 L. He also asked
for a punitive
costs order against the Respondent (Appellant in this appeal). The
application was opposed.
1.3.
The
Court below, however, granted judgment in favour of the Applicant,
and ordered the Respondent to pay punitive costs for lack
of bona
fides in opposing the matter purely on its merits.
[2].
It was this adverse order that aggrieved the Respondent, as a result
of which it brought about the present appeal.
[3].
The factual matrix that preceded the application may be summed up
briefly as follows:-
3.1. The Applicant was employed by the
Respondent from 01 April 2012 until 30 August 2014, to manage its
affairs. This he did jointly
with one Gerhardus Hartman, performing
general managerial services on behalf of the Respondent, a close
corporation duly registered
in terms of the corporate laws of the
Republic of South Africa. The registered Member of the Respondent,
being Mr Hartman’s
wife, Mrs Dalema Hartman, was allegedly
passive in the day-to-day business management of the Respondent.
3.2. By mutual agreement between the
parties, which was verbal, it was arranged that because of the
Respondent’s financial
constrains, the Applicant be offered,
and was placed in possession of the said motor vehicle for his use
and enjoyment as compensation
for the services he rendered. It
appears that the motor vehicle (“Navara”) was still a
subject of an instalment sale
agreement with the finance holder MFC,
which impliedly, retained the right of ownership thereof, until the
purchase price has been
fully settled.The Navara would thereafter be
transferred into the Applicant’s name. The relevant insurance
company that covered
the risks associated with the use by the
Applicant, was accordingly advised of this private arrangement.
3.3. It is common cause that the
Applicant acquired possession of the Navara during September 2014. In
fact the Respondent blatantly
admitted in its Answering Affidavit
(“AA”) that “the Applicant was in peaceful and
undisturbed possession of
the vehicle as from 1 September 2014.”
[1]
3.4. It is also common cause that the
Applicant was involved in an accident on 29 October 2015, having
collided with a stray cow
causing extensive damage to the Navara he
was driving. The Navara was subsequently taken to Thomson
Panelbeaters in Polokwane for
repairs. It appears that as at December
2015 roughly two months since the collision, the panel beaters could
not attend to the
repairs as instructed.
3.5. On 11 January 2016, the Applicant
was telephonically contacted by Mrs. Hartman where she informed him
that she had “uplifted”
the said vehicle from Thomson
Panel beaters, and that the Navara will not be returned to the him,
citing a breach of the parties’
verbal agreement as a reason.
[4].
It was submitted by the Applicant that the conduct of the Respondent,
in particular, Mrs. Hartman, amounted to an act of spoliation
as he
felt despoiled when she “uplifted” the Navara from the
panelbeaters.
[2]
[5].
The Respondent conversely, denied having spoliated the vehicle,
contending that the Applicant lost possession of the motor
vehicle in
question on 29 October 2015 when it was taken in for panelbeating.
[3]
[6].
It is these conflicting submissions around the question of possession
and the manner or circumstances as to how the Applicant’s
possession of the motor vehicle was lost, that calls for a penetrated
inquiry, regard being had to the old authorities on this
aspect.
[7].
The legal issues in the present application are whether the Applicant
was in “peaceful and undisturbed possession”
at the time
when he placed the motor vehicle he had possessed in the hands
of the panelbeater for repairs, or put differently,
whether by
despoiling the said motor vehicle, did the Respondent’s conduct
not constitute unlawful deprivation of Applicant’s
possession.
[8].
With deference to the legal principles on the matter, I consider it
apposite to analyse briefly the old authorities and relevant
case law
on the subject so as to put into lucid context, the notion of
“possession” in our law.
[9].
According to the commentator Mansdorp
[4]
possession can be described as a “compound of physical
situation and mental state involving the physical control (corpus)
of
a thing by a person and that person’s mental attitude (animus)
towards the thing.
[10].
Although our system of rights was foreign to Roman law, it appears
that Roman law, however, recognised possession as a factual
relationship that attached consequences, for instance, the protection
thereof.
[5]
The weight of old authorities in our law seem to favour the view that
the possessor enjoyed a real right as a holder.
[11].
However, other commentators hold a different view,
[6]
suggesting that possessor should be regarded as an adjunct of the law
of property, or should be classified as a right
sui
generis.
[12].
Possession often constitutes an entitlement flowing from some or
other right that a possession has, for instance, ownership,
pledge
,or lease. A borrower for use may, therefore, possess the thing
on account of the respective real or personal rights
they acquire.
[13].
The protection afforded by the Mandament van spolie against any
person, including the owner, in instances of unlawful deprivation
of
possession (spoliation) presupposes an underlying right which the law
serves to protect. It is the unlawfulness in the deprivation
of the
thing which, in my view, constitutes the violation of a right to
possess a thing. The position of an unlawful possessor
of a thing
would, however, not fit in the foregoing proposition.
[14].
The preferred approach, therefore, seems to be the Roman law one,
where possession as a factual relationship gives rise to
certain
consequences. If this has to be explained within the paradigm of
“right” and “entitlements”, then
possession
within the context of protection thereof can therefore be explained
as an “entitlement” (“bevoegheid”)
conferred
by objective rules of law on a person to remain in “free and
undisturbed” possession, until lawfully outsted,
and not
through self-help.
[15].
The right of possession is often referred to as the
ius
possessionis
and must be distinguished from
ius
possidendi
, that is, the entitlement to demand control or
custody over a thing. A good example of the latter is the owner of a
motor vehicle
who keeps it in his or her garage and drives it daily,
has
ius
possedendi
as
owner and
ius
possessionis
as
a possessor.
[16].
However, where the true owner of it enters into a contract in terms
of which he or she lets the car on hire to a third party
for a
certain duration of time, on delivery thereto, the hirer acquires
ius
possessio
in terms of the contract.
[17].
According to traditional approach, the common law required possession
to be acquired
Corpore
et animo
only. In other words physical control with a particular mental
element was essential to constitute possession. However, Silberberg
supra
,
is of the view that physical control is in itself not sufficient to
constitute possession. It must be accompanied by a particular
intention.
[7]
[18]. On the other hand Wille has
expressed the view that:-
“
A
person with a right to possession (ius possidendi) based either on a
contract (e.g. loan or a lease) or a real right (usufruct)
is
entitled to factual possession, and if deprived thereof, can claim it
from anyone in possession.”
[8]
The
foregoing passage appears to have been applied in Bester v
Grundling
[9]
[19]. As stated elsewhere herein,
there are divergent views as to whether possession is a fact (factual
possession) or a real right.
Will, supra, suggests that it should not
be seen as a real right, but as an adjunct to the law of things.
However, he intimated
that the key solution to this paradox lies in
maintaining a clear distinction between the fact of possession and
the right flowing
from the possession (ius possessions). I subscribe
to this approach, in as much as Silberberg’s view is that
physical control
is no longer sufficient
per
se
to
constitute possession.
[20].
In my view therefore, emphasis on the fact of possession more often
than not leads to the logical conclusion that possession
is a fact,
and the
animus
possidendi
(intention
to possess) would also be an indispensible requirement for protection
of possession.
[21].
The context of
physical control
(corpus) of a thing should for
the purpose of modern juridical development of the common law, be
widely interpreted as opposed
to a narrow interpretation in its
historical context. In my view, factual or legal possession should be
adopted thereby abrogating
by disuse the outdated, strict, narrow,
and conservative requirement of actual physical control (corpus). The
intention to possess
should, in my view, be sufficient to complement
the factual possession for which an intention to possess a thing
would be paramount.
[22].
Applying the above stated proposition to the facts in the present
appeal, it follows that when the Respondent took the Navara
to the
panelbeater, he had not intend to relinquish possession thereof, nor
did he lose control over it. He being placed in possession
thereof by
agreement with the Respondent, the Applicant, no doubt, still enjoyed
factual possession with intention to acquire a
benefit thereon. He
had acquired the right of entitlement thereto coupled with the right
of use thereof.
[23].
The submission by the Respondent that by handing in the said vehicle
to the panelbeaters, the Applicant thereby deprived himself
of
physical possession of the vehicle is untenable. The Respondent by
his conduct did not evince an intention to lose possession
of the
said vehicle.
[24].
The fact that the Respondent, without the knowledge or consent of the
applicant “uplifted” the Navara from the
panelbeaters
with no intention to restore possession, clearly amounted to an act
of spoliation and, therefore, self-help. Spoliation
is a mischief
precisely designed to obviate self-help.
[25].
The applicant who was a possessor before his motor vehicle was
involved in an accident, had been unlawfully despoiled by the
Respondent. He is therefore entitled to be restored to his
possession
ante omnia.
[26].
In Shoprite Checkers Ltd v Pangbourne Properties Ltd,
[10]
it was stated that the Mandament van spolie as a possessory remedy,
is regarded as a robust and
speedy
remedy
aimed
not at the restoration of rights, but dispossessed property.
[27]. In spoliation proceedings, the
applicant who is despoiled only has to prove that:
27.1. He or she is
in possession of the thing, and
27.2. That he or
she was illicitly outsted from such possession.
[11]
[28].
In
casu
, there is no dispute that prior to his unlawful
deprivation, the Applicant was in free, “peaceful and
undisturbed possession”.
As indicated, the submission that the
Applicant lost physical control when he surrendered the vehicle to
panelbeaters for repairs,
lacks merit and falls to be rejected. The
rights of the parties do not enter the picture in proceedings
of this nature. The
evaluation of such rights fall within the
province of the suit on the merits.
[29].
The Applicant need not establish
ius possidendi
and
therefore the lawfulness of his or her possession is an immaterial
consideration. In fact, the existence of
ius possidendi
does not imply actual physical possession.
[30].
In the light of the facts in this matter, the decision of the Court
a
quo
in granting the Applicant the relief sought, cannot be faultered. The
learned Magistrate was quiet apt when he said that “vehicles
are routinely left unattended in parking lots, in parking bays at
airports for example, even for relatively long periods. You cannot
keep it in your pocket like a diamond.
[12]
”
[31]. In the result, the appeal falls
to be dismissed with costs. The following order is pronounced.
ORDER
1.
The
appeal is dismissed with costs.
2.
The
order made by the Court a quo including the costs on a punitive scale
is confirmed.
____________________________
M.G
PHATUDI J
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA LIMPOPO
DIVISION, POLOKWANE
I agree.
____________________________
E.M
MAKGOBA JP
JUDGE PRESIDENT OF THE HIGH
COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
Representations:
1.
For
the Appellant :
Mr. N.
Bosman
:
c/o Bosman Attorneys
Polokwane
2.
For
the Respondent :
Mr. J.F. Moolman
:
c/o Pratt, Luyt & De Lange Attorneys
Polokwane
3.
Date
heard
: 14
October 2016
4.
Date
delivered
:
October
2016
[1]
P51, Para: 11, “AA”.
[2]
P28, Para: 7.8, “FA”.
[3]
P 51, Para 11, “AA”.
[4]
“
Institutes” P12, Silberberg and
Schoeman “The Law of Property “ (4
th
Edition) P 253.
[5]
De vos, 1959 Acta Juridica PP 190-194
[6]
Kleyn and Boraine - “The Law of
Property” at p.111, see also 1989 TSAR 138-140.
[7]
“
The law of Property” 4
th
Edition, p 259.
[8]
“Wille’s Principles of South African Law” –
9
th
Edition.
[9]
1917 (TPD) 492 at 495
[10]
1994(1) SA 616(W)
[11]
Ross v Ross 1994(1) SA 865(SE) & Du Randt v Du Randt 1995(1) SA
401 (SE)
[12]
Par 35, Judgment.(P15,Record)