Khomo v Khomo (1133/2008) [2008] ZAFSHC 25 (8 May 2008)

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[2008] ZAFSHC 25
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Khomo v Khomo (1133/2008) [2008] ZAFSHC 25 (8 May 2008)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No. : 1133/2008
In
the matter between:-
MOKGATLA
MOSES KHOMO
Applicant
and
NOLUTHANDO
KHOMO
Respondent
_____________________________________________________
HEARD ON:
8
MAY 2008
JUDGMENT
BY:
EBRAHIM,
J
DELIVERED ON:
29
MAY 2008
[1] This is an
application for a spoliation order. Applicant and the respondent are
married to each other in community of property
and have been so
married for some time. On 14 December 2007 the applicant moved out
of the communal home and subsequently instituted
action in this Court
for,
inter
alia
, a
decree of divorce. That action is still pending. It is common cause
that on leaving the communal home the applicant left a Mercedes
Benz
vehicle in the respondent’s possession. The applicant retained
possession of a Toyota Hilux twin cab vehicle registered as
DHB 781
FS, which he had purchased in the first quarter of 2007 in terms of a
credit agreement as well as an Audi A4 motor vehicle.
The applicant
has alleged in his founding papers that he is in the construction
business and needs the Toyota vehicle for the day-to-day
running of
his business.
[2] It is common cause
that the Audi vehicle was used exclusively by the applicant up until
4 February 2008 when it was involved in
an accident and damaged
beyond economical repair. The respondent contends, however, that the
Toyota vehicle is not suitable for
construction purposes, it is not a
four wheel drive vehicle, the applicant knows nothing of the
construction industry, does not need
to go to construction sites, and
that the only extent of his involvement in that industry is office
work. She contends, moreover,
that the Toyota vehicle was purchased
for use as a family vehicle and used exclusively by her. She alleged
in the opposing papers
before the court that she was surprised when
the vehicle was retained by the applicant for his personal use when
he left the communal
home but abided his decision to retain the
vehicle because she believed that the separation between them was
temporary. When it
became apparent that the applicant was not
intending to return to the communal home, she decided to remove the
Toyota vehicle and
did so with a spare key to the vehicle which she
had in her possession. She alleges this was done with the consent of
the applicant.
The applicant denies consent and avers that he
reported the matter to the SAPS who refused to intervene in what they
regarded was
a domestic civil matter between husband and wife. The
applicant chose to ignore the fact of the deprivation thereof for
approximately
six weeks. No demands for the return of the vehicle
were made by the applicant. The first intimation which respondent
received
that applicant wanted the vehicle returned, was when a
letter of demand was received by respondent’s attorney of record
from the
applicant’s attorney of record. The letter is undated but
was clearly written after 4 February 2008, when the Audi vehicle was
written off in an accident, as reference is made to the accident in
that letter. It is obvious and can safely be accepted that the
letter was written before 12 February 2008 as reference is made to
that date as being the expiry date for compliance with the demand.

This application was launched on 3 April 2008. On these common cause
facts I have been requested by the applicant to find that
a
spoliation did in fact occur and conversely by the respondent to find
that no spoliation took place,
alternatively
that, the delay in bringing the spoliation application within a
reasonable time after the deprivation of the applicant’s possession
of the vehicle amounted to an abandonment of his right to claim
spoliatiory relief. As authority for the respondent’s stance,
I
was referred to the case of
JIVAN
v NATIONAL HOUSING COMMISSION
1977 (3) SA 890
(W).
[3] As early as the
decision in
ROSENBUCH
v ROSENBUCH AND ANOTHER
1975 (1) SA 181
(W), Colman J found that a joint possessor who has
been deprived of his share of the possession of property should be
entitled to
a spoliation order, if the other legal requirements for
such relief are present and conversely where a joint possessor
illicitly
and/or contrary to the will of his co-possessor takes
exclusive possession of shared property, a spoliation order is
competent.
Such an approach is in line with the principles laid down
in the case of
NINO
BONINO v DE LANGE
1906 TS 120.
At p. 183 A – B the learned Judge opined:
“
As
was pointed out by GREENBERG, J.A., in
Nienaber
v Stuckey,
1946 A.D. 1049
at p. 1053, the Court hearing a spoliation application does not
concern itself with the rights of the parties (whatever they may
have
been) before the spoliation took place. It merely enquires whether
there has been a spoliation or not, and if there has been,
it
restores the
status quo
.”
And at p. 183 H to 184 D:
“
No
authority was cited to me against the proposition that the remedy
lies at the suit of a joint possessor, but there is an authority
which seems to support the view that that remedy does lie. I refer
to the case of
Nienaber
v Stuckey, supra.
It was
there held that the remedy of a spoliation order was available to one
of two people who had held in joint possession, against
the other,
when that other had wrongfully assumed exclusive possession. The
facts were entirely different from the facts of the
case before me
but that is the principle upon which the decision of the Appellate
Division rested, and the authority is binding upon
me.
It
was suggested that the principle does not apply to the present case
because the husband had in fact driven the wife from the joint
household and thus, in substance, wrongfully deprived her of her
share in the possession of the household goods. I do not know
whether
the husband did that or not; he denies it, and that is one of
the issues which will fall to be determined in the pending action;
it
certainly cannot be determined at this stage. But even if the
husband did commit the type of constructive desertion suggested
I
find it difficult to see how that can assist the wife in the present
proceedings. A spoliator cannot justify his conduct, and
avoid the
consequences of that conduct, by saying that he was the victim of
prior spoliation. If he was, he had a remedy in law,
but not the
right to take the law into his own hands. If the wife in this case
was driven out out of her home and thus deprived
of the use of the
goods which she reasonably required she had her remedy in an
application to this Court for maintenance
pendente
lite
or possibly for some
specific relief. But it would be flying in the face of the well
established principles underlying our law of
possession and
spoliation if it were to be said that in such circumstances she had
the right, against the will of her husband, to
take for herself
whatever she needed or thought she needed.”
And at p. 184 H:
“
...
even if it could be said that the husband had wrongfully dispossessed
the wife of her undivided share of the possession of the
chattels in
suit, she did more than merely repossess herself of what her husband
had taken from her. She removed the articles and
thereby
dispossessed the husband of his undivided share of that possession.
There is no authority of which I am aware which justifies
conduct of
that kind.”
This decision was quoted
with approval and followed in
OGLODZINSKI
v OGLODZINSKI
1976 (4) SA 273
D and it has been settled law since that the remedy
of the mandament van spolie is available to cases between husband and
wife where
the one has deprived the other of factual possession of an
article jointly possessed by both without consent.
[4] In the present case
it is common cause that the parties being married in community of
property, were jointly in possession of
all the assets in the joint
estate including the Toyota Hilux vehicle which was in the factual
possession of the applicant up until
24 December 2007 when the
respondent removed it, thus depriving the applicant of his possession
thereof. On the probabilities it
is apparent that the facts
surrounding the removal of the vehicle favour the applicant’s
version that it was done without his consent
and I make that finding.
[5] It follows therefore
on the principles laid down in
NINO
BONINO v DE LANGE
,
supra
,
that the respondent spoliated the applicant on 24 December 2007. The
question, however, which arises in this application is whether
the
fact that the applicant delayed a period of approximately two months
in bringing the application, has any impact on that spoliation
or put
another way, whether it can be said that such a delay had the effect
of amounting to a waiver on the applicant’s part of
his rights to
claim an order of spoliation. In
JIVAN
v NATIONAL HOUSING COMMISSION
,
supra
,
p. 891 H the learned Judge quoted and analysed old South African and
Roman Dutch authorities with reference to the question of acting
promptly when deprived of possession and concluded at p. 893 A – D
as follows:
“In
my view the Court has a discretion to refuse an application where, on
account of the delay in bringing it, no relief of any
practical value
can be granted at the time of the hearing of such application.
In exercising this discretion I think
the bar imposed after one year in respect of the mandament
consequential upon complainte is
a guide to modern practice. If an
applicant delayed for more than a year before bringing his
application for a mandament of spolie,
there would have to be special
considerations present to allow such applicant to proceed with his
application, and conversely, if
an application was brought within the
period of one year after interruption of the possession, special
circumstances would have to
be present before relief could be
refused, merely on the ground of excessive delay. In the present
matter the delay of eight months
before the petition was launched is
not so gross, nor had it such self-defeating consequences, that, on
this ground alone, relief
should be refused to the applicant.”
At p. 893 F – H the
learned Judge cites with approval the dictum of Maasdorp J in
DE
VILLIERS v HOLLOWAY
(1902) 12 CTR 566 at p. 569:
“
In
this matter MAASDORP, J., considered the effect of delay in bringing
an application for a mandament of spolie and he framed the
argument
for the view that a possessor loses his right to seek an order due to
an inordinate delay in the following terms:
‘
It
is said that having lain by so long it must be taken that he
acquiesced in what had been done by the respondent to such an extent
as to deprive the conduct of the respondent of the character of
forcible spoliation’.
After considering the facts the
learned Judge concludes:
‘
therefore,
the mere fact that the applicant did not press forward legal
proceedings immediately was not such an acquiescence in what
had been
done by the respondent as to deprive the applicant of the right of
now asking the Court to put him in the position he would
have been in
had he not been deprived of peaceable possession by the respondent’.
I
adopt this approach. It is conceivable that the delay of an applicant
to bring his petition either confirms or displays a state
of mind in
which the applicant acquiesced in the alleged disturbance of his
possession, and, in such an event, I am satisfied that
he would not
be entitled to a mandament of spolie.”
[6] Turning then to the
specific facts of this case, the question arises was the delay of
approximately two months in the circumstances
of the case, an
inordinate delay justifying this court finding that the applicant had
acquiesced in the delay. The answer to that
question warrants an
examination and analysis of the factual circumstances of this case
subsequent to the spoliation on 24 December
2007. Such an analysis
will give an indication as to the state of mind of the applicant in
the period following the deprivation
of possession and will throw
light on the reason for the delay in bringing this application. It
is common cause that between 24
December 2007 when the spoliation
occurred and 4 February 2008 when the Audi vehicle was irreparably
damaged in an accident, the
applicant used it as a mode of transport
without any attempt to recover the Toyota vehicle. I reject as false
his explanation that
he was unable to contact his attorney
immediately after the spoliation, because same was on vacation, that
during the month of January
2008 there was no construction work to be
done and in February 2008 very little construction work was done,
because of a depleted
Provincial Government budget. Whilst any one
or more of these reasons might validly have pertained at the time,
they are nevertheless
individually as well as cumulatively
unconvincing when considering what the belief held and the state of
mind of the applicant was
at the time of the deprivation as regards
his right to approach the court for spoliatory relief. This is not a
case where the applicant
on being spoliated was determined to regain
possession of the vehicle he had been unlawfully deprived of. The
applicant’s tardiness
was clearly due to the fact that he was not
in need of the Toyota vehicle at the time of the spoliation as he had
in his possession
the Audi motor vehicle which he was able to use and
did use on his own version between 24 December 2007 and 4 February
2008. On
these facts it is clear that it was the accident of 4
February 2008 which triggered his cry that he had been spoliated and
not the
actual dispossession of the Toyota motor vehicle. He was
content to abide the respondent’s actions in dispossessing him
between
24 December 2007 and 4 February 2008 because he was not in
need of the Toyota. Once the Audi was no longer at his disposal, he
decided
to reclaim possession and when his claims were refuted by the
respondent, he launched this application on 6 March 2008. Because
the underlying rationale for the bringing of this application was not
that the applicant had peaceful and undisturbed possession
which he
was then unlawfully deprived of by his wife, the respondent, this
application cannot succeed. The actions and conduct
of the applicant
subsequent to the spoliation on 24 December 2007 amount in effect to
a waiver and/or abandonment of his right to
spoliatory relief. In
LAWS
v RUTHERFURD
1924 AD 261
at p. 263 Innes C.J. held:
“
The
onus
is strictly on the appellant. He must show that the respondent, with
full knowledge of her right, decided to abandon it, whether
expressly
or by conduct plainly inconsistent with an intention to enforce it.”
In
HEPNER
v ROODEPOORT-MARAISBURG TOWN COUNCIL
1962 (4) SA 772
A Steyn C.J. said:
“
There is authority for the view
that in the case of waiver by conduct, the conduct must leave no
reasonable doubt as to the intention
of surrendering the right in
issue.”
In
BORSTLAP
v SPANGENBERG
1974 (3) SA 695
(A) 704 Corbett AJA said:
“
Dit is herhaaldelik deur ons howe
beklemtoon dat duidelike bewys van ‘n beweerde afstanddoening van
regte geverg word, veral waar
op ‘n stilswyende afstanddoening
staatgemaak word. Dit moet duidelik blyk dat die betrokke persoon
opgetree het met behoorlike
kennis van sy regte en dat sy optrede
teenstrydig is met die voortbestaan van sodanige regte met die
bedoeling om hulle af te dwing.”
In
ROAD
ACCIDENT FUND v MOTHUPI
2000 (4) SA 38
(SCA) at par. 16 – 17 Nienaber JA held that the test
for the establishment of a tacit waiver was an objective test. This
meant
that the intention to waive must be judged by its outward
manifestation, which embodies conduct from which an intention to
waive
can be inferred, including inaction or silence when there is a
duty to act or to speak. Uncommunicated mental reservations are
irrelevant.
Such conduct, moreover, must be unequivocal that is
consistent with no other hypothesis than that the intention to waive
exists.
The test of the existence of such conduct is an objective
test judged from the perspective of the reasonable man in the
position
of the other party.
[7] In my view, the
conduct of the applicant subsequent to 24 December 2007, judged
against the principles of waiver relative to the
intention to waive
as set out in
ROAD
ACCIDENT FUND v MOTHUPI
,
supra
,
amount to a tacit waiver of his right to reclaim possession of the
vehicle in question. A reasonable man in the position of the
respondent would have assumed that the applicant had abandoned his
right to retain possession of the Toyota motor vehicle in view
of his
inaction immediately after the dispossession on 24 December 2007
until 6 March 2008 or until the middle of February 2008 when
the
demand was made. A reasonable man, in addition, would have believed
that such inaction was due to the fact that the applicant
had in his
use the Audi vehicle and was not in need of the Toyota vehicle and
that the need for this vehicle only arose as a result
of the accident
on 4 February 2008. The delay in the present application can only,
in my view, be interpreted as acquiescence in
the alleged spoliation.
[8] The
application is accordingly dismissed with costs.
_____________
S. EBRAHIM, J
On
behalf of applicant: Adv. P.J. Loubser Instructed by:
J
G Kriek & Cloete
BLOEMFONTEIN
On
behalf of respondent: Adv. J.J.F. Hefer
Instructed
by:
McIntyre
& Van der Post
BLOEMFONTEIN
/sp
2008/05/23
09:50 AM
2008/05/23
12:34 PM