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[2016] ZAECMHC 36
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Dyalo v Mnquma Local Municipality and Another (8490/2016) [2016] ZAECMHC 36 (9 September 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION: MTHATHA
CASE
NO. 8490/2016
DATE:
9 SEPTEMBER 2016
VUYANI
EXCELLENT
DYALO
.............................................................................................
Applicant
And
MNQUMA
LOCAL
MUNICIPALITY
...........................................................................
1
st
Respondent
THE
TRAFFIC OFFICER, ZAMILE
LOLO
..............................................................
2
nd
Respondent
JUDGMENT
BROOKS
J
[1]
The subject of this application is an ISUZU KB 300 DTEQ motor vehicle
with registration letters and number F… 8….
EC (the
motor vehicle) which belongs to the applicant. It is common cause
that the motor vehicle was seized by members of the Traffic
Police of
the Mnquma Local Municipality on 8 February 2016 and that it remains
in their possession.
[2]
After making unsuccessful attempts to regain possession of the motor
vehicle, on 11 March 2016 the applicant launched the present
applicant. The notice of motion seeks a
mandament
van spolie
, a final interdict and an
order for costs.
[3]
The application was opposed by the respondents and a full exchange of
affidavits has occurred.
LEGAL
PRINCIPLES
[4]
The purpose of a
mandament
van spolie
is
the speedy restoration of possession to a person who has been
unlawfully deprived thereof. It is also designed to prevent
persons from resorting to self-help or from taking the law into their
own hands. Consequently, as a possessory remedy, it
offers only
temporary relief and is not aimed at the restoration of rights.
The underlying principle is that possession must
be restored before
the court will decide, if necessary competing claims to the
object.
[1]
[5]
The maintenance of peace, order and stability within society, wherein
persons enjoy a constitutional right to hold property
without the
threat of unlawful deprivation thereof, would not be possible were
the law to countenance persons resorting to self-help
to deprive
others of the possession of their property.
[2]
[6]
All that an applicant has to prove is possession of a kind which
warrants the protection accorded by the
mandament
van spolie
and
that the applicant was unlawfully ousted.
[3]
It matters not that the spoliator night have a stronger claim to
possession that the person spoliated or that the latter indeed
has no
right to possession.
[4]
[7]
The following defences are recognised in spoliation proceedings:
·
the applicant was not in peaceful and
undisturbed possession of the thing in question at the time of the
dispossession;
·
the dispossession was not unlawful and
therefore did not constitute spoliation;
·
the restoration of possession is
impossible; and
·
the respondent acted within the limits of
counter-spoliation in regaining possession of the article.
[8]
In order to obtain a final interdict as contemplated in addition to
his
andament van spolie
, the applicant must establish the
following:
·
that there is a clear right on the part of
the applicant;
·
an injury actually committed or reasonably
apprehended; and
·
the
absence of any other satisfactory remedy.
[5]
[9]
Where the authorities
[6]
pertaining to the requirements for a final interdict have
consistently referred to the requirement to stablish a clear right as
a requirement to establish, on the balance of probability, facts and
evidence which prove that the party has a definite right in
terms of
substantive law, the reference is rather to a right which is clearly
established.
[7]
Whether
the applicant has a right is a matter of substantive law; whether
that right is clearly established is a matter of
evidence.
[8]
[10]
As the interdict is final in nature, the court is enjoined to
consider the grant of relief only if the facts alleged on behalf
of
the applicant which are admitted by the respondents in the answering
affidavit, together with the facts expressed by the respondents
therein justify such relief.
[9]
The position may be different if the respondents’ version
consists of bald or uncreditworthy denials, raises fictitious
disputes of fact, is palpably implausible, far-fetched or so clearly
untenable that the court is justified in rejecting them merely
on the
papers.
[10]
THE
FACTUAL POSITION
[11]
The respondents opposition to the application is founded upon an
assertion that the seizure of the motor vehicle was lawful.
It is
alleged that the motor vehicle was being used in the commission of an
offence in that it was being driven recklessly and
negligently,
causing a danger to the public and secondly that it was being used to
cause a nuisance to the public in contravention
of the Mnquma Local
Municipality by-laws. Accordingly the respondents place
reliance upon the provisions of s20 (a) read
with the provisions of
s22
(b)(ii) of the
Criminal Procedure Act 51 of 1977
. The
respondents develop the defence of lawfulness to allege that in these
circumstances the seizure of the motor vehicle
without a search and
seizure warrant was lawful. It is alleged that it will be used
in criminal proceedings and only the
criminal court can release the
motor vehicle.
[12]
A reading of
s20
of the
Criminal Procedure Act 51 of 1977
demonstrates that the motor vehicle does not fall within the ambit of
articles which can be seized by the State. Even if
the
respondents version were to be accepted that the motor vehicle was
being driven recklessly and negligently, it is apparent
from the
answering affidavit that the motor vehicle was not being driven by
the applicant. He was merely one of the passengers
in the motor
vehicle. In such circumstances, allegation that the applicant
was arrested and a criminal case was opened causes
some surprise.
No case number for any pending criminal proceedings is provided by
the respondents in support of this allegation.
Even if it had
been, the motor vehicle would never be utilised in the criminal
proceedings as evidence. The traffic officers’
account of
the incident would be sufficient to prosecute the applicant.
[13]
By the same token, the allegation that the applicant was causing a
nuisance to the public in contravention of the Mnquma Local
Municipality by-laws is also untenable. A scrutiny of the
applicant’s conduct does not identify it as falling within
the
realm of the definition of nuisance. He was not the driver of
the motor vehicle. What is perceived to be a nuisance
must be
recognised and denounced by the owners of immovable property and not
by traffic officers.
[14]
It follows that in my view the defence that the seizure of the motor
vehicle was lawful cannot be sustained.
[15]
The entitlement of the applicant to a final interdict can be dealt
with shortly. The right which the applicant asserts
is the
right to peaceful and undisturbed possession of the motor vehicle.
The injury against which he seeks the protection of the
interdict is
the unlawful dispossession thereof as demonstrated by the members of
the Traffic Police on 8 February 2016. It is
plain that in the
circumstances of this matter, no satisfactory alternative remedy is
available to him.
[16]
No reason exists why the respondents would not be able to prosecute
the applicant or take lawful steps to seize his motor vehicle
if they
were advised that the lawful grounds existed for such action
Accordingly, the protection afforded the applicant by
the issue of
the interdict is only security against further unlawful activity and
cannot in any way prejudice the respondents.
COSTS
[17]
The respondents allege further that, whatever the outcome in the
matter, the applicant should not succeed in obtaining an order
that
costs be paid by the respondents beyond 8 April 2016. The rationale
for this submission is that on 8 April 2016. The
rationale for
this submission is that on 8 April 2016 the applicant ought to have
accepted a settlement proposal advanced for his
consideration on
behalf of the respondents. This proposal was that the vehicle
be returned to the applicant and that each
party pay their own costs.
Not only does the ease of the gesture of returning the motor vehicle
appear to be in stark contrast
to the assertion that the motor
vehicle can only be returned by order of the criminal court, but no
basis seems to exist which
would justify the view that the applicant
ought to have accepted the proposal that he pay his own costs.
The launch of the
application was essential before any proposal was
made for the return of the motor vehicle. In my view, the applicant
was entitled
to pursue the application, including a full costs order.
ORDER
[18]
The following order will issue:
“
1.
The respondents’ seizure on 8 February 2016 of the applicant’s
ISUZU KB 300 DTEQ motor vehicle with registration
letters and number
F…. 8…. EC is hereby declared to unlawful;
2.
The respondents are hereby directed to restore possession forthwith
of the motor vehicle referred to in paragraph 1 of this order
to the
applicant;
3.
The respondents are hereby interdicted and restrained from any
further unlawful interference with the motor vehicle referred
to in
paragraph 1 of this order;
4.
The respondents are hereby directed to pay the costs of this
application the one paying the other to be absolved, on a party
and
party scale.
RWN
BROOKS
JUDGE
OF THE HIGH COURT
Appearances:
For
the applicant: ADV S Y MALUNGA
Instructed
by Makangela Ntungani Inc.,
51
Victoria Street
MTHATHA
For
the respondent: MS T. MADYIBI of
Mvuzo
Notyesi Inc.,
2
nd
Floor
T
H Madala Chambers
14
Durham Street,
MTHATHA
Date
heard: 8 September 2016
Date
Delivered: 9 September 2016
[1]
TSWELOPE
NON-PROFITORGANISATION AND OTHERS v CITY OF TSWANE METROPOLITAN
MUNICIPALITY AND OTHERS 2007 (6) 511 (SCA) par [21].
[2]
NINO
BONINO v DE LANGE 1906 TS 120.
[3]
YEKO
v QANA 1973 (4) SA 735 (A) 739 D-G.
[4]
BON
QUELLLE (EDMS) BPK v MUNISIPALITEIT VAN OTAVI 1989 (1) SA 508 (A)
512 A – B.
[5]
SETLOGELO
v SETLOGELO
1914 AD 221
at 227.
[6]
NIENABER
v STUCKEY
1946 AD 1049
at 1053 and 1054; MOSII v MOTSEOAKHUMO
1954
(3) SA 919
(A) and DE VILLIERS v SOETSANE
1975 (1) SA 360
(E) at
362.
[7]
EDREI
INVESTMENTS 9 LTD (IN LIQUIDATION) v DIS-CHEM PHARMACIES (PTY) LTD
2012 (2) SA 553 (ECP) 556 B – C.
[8]
ERASMUS,
SUPERIOR COURT PRACTICE, SUPPLEMENTARY VOLUME, page E8 – 6D.
[9]
PLASCON
EVANS PAINTS LTD v VAN RIEBEECK PAINTS (PTY) LTD
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
634 – 635.
[10]
NATIONAL
DIRECTOR OF PUBLIC PROSECUTION v ZUMA
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) par
[26].