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[2015] ZAGPPHC 464
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Kgatitswe v Kgapola and Others (40058/2010) [2015] ZAGPPHC 464 (9 June 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO:
140018/2010
In
the matter between:
URSULA
MATLALA
KGATITSWE
APPLICANT
and
EDDIE
KGAPOLA
1
ST
RESPONDENT
OCCUPANTS
OF ERF 6129 SAUUVILLE
2
ND
RESPONDENT
LEHLOGONOLO
MORONGWA MASENYA
3
RD
RESPONDENT
J U D G M E N T
HEARD
ON: 27 MAY 2015
JUDGMENT
ON: 09 JUNE 2015
KUBUSHI,
J
[1]
The applicant has approached this court for a spoliation order. The
applicant's contention is that she was in peaceful possession
of the
property when she was despoiled by the 1
st
respondent.
[2]
The 1
st
respondent is opposing the application and
contends that the matter should not be heard in the urgent court. He
denies further
that the applicant was despoiled of the property and
contends that she vacated the property of her free will and he took
over the
property with the consent of the applicant.
[3]
The factual background is that the property was initially owned by
the applicant when it was sold on auction through the sheriff
on 4
December 2014. The 1
st
respondent bought the house
and subsequently sold it to the 2nd and 3rd respondents who are
presently in possession of the
property. According to the 1st
respondent the property was registered in the name of the 2nd and 3rd
respondents on 29 April 2015.
[4]
An application for spoliation relief is urgent by nature.
[5]
The question at this stage is whether a spoliation order can be
granted under the prevailing circumstances in this instance.
[6]
I
t
has been held
that
i
f
a third
party had notice of the spoliation when taking possession, there
i
s
much to be sa
i
d
for the view that spoliation rel
i
ef
should be granted,
not because
the th
i
rd
party
i
s
a spoliator b
u
t
because he or
she had
notice
of
the
spoliation
when
taking
possession
.
[1]
[
7]
The
reasoni
n
g
i
s
based
on
the
essential
nature
of
a
spoliation
order,
namely
the
restoration
of
possession.
The
spoliator
cannot
restore
possession
i
f
he
d
oes
n
ot
have
i
t.
[2]
[8]
Not much is said about the 2nd and 3rd respondents in the papers
before me. The 2nd and 3rd respondents are not opposing the
application. The little
of
what is said about them is gleaned from the answering affidavit of
the 1
st
respondent. The 1
st
respondent contends that he sold the property to the 2
nd
and 3
rd
respondents and that the property has
already been registered in their names. He does not attach proof of
such sale or transfer
of the property. From the reading of the
applicant's papers it appears that the applicant is aware that the
2nd and 3rd respondents
are occupying the property. She does not,
however, specifically deny the 1•t respondent's allegations that
he (the 1•t
respondent) sold the property to the 2nd and 3rd
respondents or that the property is now registered in their names. I,
as a result,
have to infer that the applicant admits the averments
made by the 1
st
respondent in respect of the sale of the
property.
[9]
There is no evidence on the papers that indicate that the 2nd and 3rd
respondents had any knowledge about the spoliation or
of the pending
proceedings when they purchased the property or when they took
transfer. As I have said not much is said about them
in the papers. I
consequently have to infer that they had no such knowledge.
[10]
To my mind, even if I would have found in favour of the applicant in
regard to the relief she seeks, namely, the spoliation
order, such an
order, directing the 1
st
respondent or the 2nd
and 3rd respondents (the new owners) to
restore
possession of the property to the applicant, would have no practical
effect. The 1'1 respondent is not in possession of
the property. The
2nd and 3rd respondents have not deprived the applicant of possession
- I have already found that they had no
knowledge about the
spoliation or of pending proceeding when they purchased the property
or took transfer.
[11]
In the premises I order as follows:
(a)
The application is dismissed with costs.
________________
E.
M.
KUBUSHI
JUDGE
OP IHI HIGH COURT
On
behalf of the Plaintiff:
N Erasmus
Instructed by:
SHAPIRO
&
LEDWABA INC
2
nd
Floor,
Shapiro Chambers
20 Bureau Lane
PRETORIA
On
behalf of the Defendant:
D Prinsloo
Instructed by:
GEYSER VAN ROOYEN
ATTORNEYS
383 Farenden Street
Arcadia
PRETORIA
[1]
See Jamieson & Another v Loder! (Pty) Ltd & Others
(A595/2011) [20
1
5]
ZAWCHC
1
8
(20 February 2015) para 48.
[2]
See the Jamieson judgment para 48.