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[2008] ZAWCHC 99
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Myburgh v Anton en Johan Vervoer BK and Another (21186/2008) [2008] ZAWCHC 99 (24 December 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE NO
: 21186/2008
DATE
: 24
DECEMBER 2008
In
the matter between:
SAMUEL
CHARLES MYBURGH APPLICANT
and
ANTON
EN JOHAN VERVOER BK 1
st
RESPONDENT
CARL
ABRAHAM ETZEBETH 2
nd
RESPONDENT
JUDGMENT
DAVIS,
J
This
is an application for a
mandament
van spolie
which
was launched yesterday that is 23 December 2008, as a matter of
urgency before me. Attached to a very poorly drafted set
of
documents was an affidavit deposed to by one Samuel Charles
Myburgh,
who appears to be the applicant in this matter, in which he sets out
certain facts to justify the application for the
mandament.
Correctly
Mr
Liddle
,
who appeared then on behalf of the respondent pointed out that no
opportunity had been granted to his clients to depose to an
answering affidavit and furthermore that the matter wasn't as urgent
as has been urged upon me by applicant in that even on applicant's
own version the vehicle was taken away by respondents on 16 December
2008 and a week went by before the application was launched
as a
matter of urgency.
I
pointed out to Mr
Liddle
at the time that I did regard a spoliation application as urgent, in
these circumstances, but postponed the matter to give respondents
an
opportunity to depose to an
10
answering
affidavit which was prepared and submitted to me this morning, that
is 24 December 2008.
Briefly
it appears to the extent that the facts are common cause that the
following occurred.
The
applicant sought to purchase a vehicle from first respondent, on 12
December 2007. The vehicle was not registered in his name,
due to
the involvement of ABSA, it appears that some form of credit
agreement was used in order to finance the transaction.
20
It
appears that for a long period of time, since 12 December 2007 first
respondent has been battling to obtain payment pursuant
to the
contract that was entered into and that according to respondent's
version applicant has been tardy in the extreme, evasive,
and
allegedly dishonest in not complying with the terms of the contract
to which I have made reference.
Mr
Liddle
also referred me to a document of 12 December in which
the
following appears;
"Twee
premies van R10 000 ... is betaalbaar op 15 Januarie 2008 en 15
Februarie 2008. Die balans daar uitstaande is dan op
10 April 2008
ten voile betaalbaar. Indien betalings nie op datum geskied sal
alle betaling reeds ontvang verbeur word deur
bogenoemde en as
huurgeld beskou word."
Accordingly
Mr
Liddle
submitted that the document to which I have made reference,
generated 12 December 2007, converted the sale agreement into a
lease agreement if the condition of payment was not fulfilled and
implicit in the lease agreement with a hypothec which would
entitle
the first respondent to obtain possession ofthe vehicle as security
for the lease payments.
Applicant's
case by contrast is a simple one. Applicant says I am the
bona
fide
possessor
of the vehicle. On 16 December 2008 the vehicle was taken without
the permission of my son, who at that point was in
control of the
vehicle, there was no legal proceeding which justified the taking of
the vehicle, the first respondent has therefore
acted on its own in
so dispossessing me of my vehicle and accordingly I am entitled to
the relief so sought.
The
relief sought requires simply the following;
The
applicant must prove on a balance of probabilities that he or she
was in peaceful and undisturbed possession of the property
10
and
that he or she was deprived unlawfully of possession. Mr
Liddle
made much of the fact that the possessor in this case claimed to be
a
bona
fide
possessor
and that somehow the requirement of
bona
fide
possession
was integral to the relief, so much is also foreshadowed in the
answering affidavit.
It
is however clear that depravation of possession takes place
irrespective of whether the possessor is
bona
fide
or
not. Indeed it is not a defence against an application for
spoliatory relief that the applicant's possession was based on theft
or robbery. See in
20
this
connection
Wille's
Principles of South African Law
(9
th
Edition)
at 262. Possession
per
se
is
sufficient to meet the first leg of the test. Indeed as the learned
authors of Wille's state;
"The
mandament
van spolie
is
available to any despoiled person who exercised physical control
with the intention of deriving some benefit there from, eg
a thief,
a squatter, a
bona
fide
possessor,
a
trustee,
a
pledge, a precarsed, a lessee, a depository, a hire purchaser, a
borrower, a building contractor or an agent".
Insofar
as the spoliatory action extending to a possessor who
derive
possession through theft, see
Voet
41.23.16 and 43.16.3. Accordingly in this particular case it is
clear that the two requirements have been met by the applicant.
Mr
Liddle
referred me however to a recent judgment of the 15 Supreme Court of
Appeal of
Cameron,
JA
in
Streetoole
Ads Durban (Pty) Ltd University of KwaZulu Natal v Ethekwini
Municipality
(case 06/2007). In particular Mr Liddle referred me to the following
passage in the judgment;
"This
argument invokes the principle that a defending respondent
in a spoliation action is generally not allowed
to contest the
spoliated applicant's title to the property. That is because good
title is irrelevant: the claim to despoliatory
relief arises solely
from an unprocedural depravation and possession. There is a
qualification however if the applicant goes
further and claims a
substantive right to possession whether based on title of ownership
on contract. 'In that case 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 claims.' This is because
such an applicant 'in effect forces an investigation of issues
relevant to the further relief
he claims. Once he does this
respondent's defence in regard thereto has to be considered."
(at para 1 5).
In
that case, that is the case of Streetpole Ads, it appeared that the
applicant sourced part of its relief in contractual agreement
which
it claimed gave it a right. It was this allegation about a right
which was the subject of the dicta of
Cameron,
JA
to which I have already made reference.
In
the present case all that's before me is the somewhat crude averment
of applicant "ek is die
bona
fide
besitter
van 'n 1999 model MAN voorhaker ..." To the extent that the
question of title is relevant to the relief sought
in Streetpole Ads
that issue is clearly not in existence in this case and therefore
the qualification made by
Cameron,
JA
,
correct and as binding as it is on me is not relevant to the present
dispute.
That
then leaves a further issue. The further issue is that as applicant
on respondent's version has no legal entitlement to the
vehicle at
all this Court should adopt a pragmatic approach and accordingly
leave the vehicle in the possession of the respondent,
pending
resolution of the dispute. That is of course the course of action
that was open to the respondent in the first place.
It
could
have
come to Court on an urgent basis, seeking relief that it hold the
vehicle pending applicant's compliance with contractual
arrangements, which it, respondent, avers applicant
has specialised in avoiding over a period of a year, but it
did not
do so, and in essence the
mandament
van spolie
does
have two aspects to it which are relevant to the present dispute.
Whether the central aim of this relief is to preserve general
legal
order, or to preserve legal order through restoration of the
possessory relationship between a person and a particular
property
that has been disturbed by (indistinct) the fact is that the
mandament
exists
in order to prevent a party from taking the law into his or her own
hands, and harsh as this may be, particularly when
the possessor may
be a thief or a squatter, that remains the law of this country and
legal avenues are open to a party such as
respondents
notwithstanding.
The
second question relates to the issue of urgency. By its nature this
kind of relief is urgent, because courts wish to prevent
a party
form
taking any advantage from its exercise of self help as occurred in
this case. What course of action the respondents wish
to take is of
course an issue upon which I do not have to decide. Suffice it to
say that legal remedies do exist and it is those
legal avenues that
should have been explored rather than in
10
fact
invoking self help. Whether in fact there is a lease and a hypothec
is significantly open to doubt on the basis of this one
letter
put
before me as part of the answering papers. It is certainly not
enough to justify the action that was taken by respondents
to
dispossess the applicant.
For
these reasons therefore the
APPLICATION
SUCCEEDS, THE RESPONDENTS ARE ORDERED TO RETURN BY 08H00 ON SATURDAY
27 DECEMBER 2008 THE VEHICLE WITH THE REGISTRATION
NUMBER CA388784
AND THE VIN NUMBER
AAMT810465PX05247
(the vehicle) to the applicant, or failing there with the Sheriff is
authorised to remove the vehicle from possession of the
respondents
and place applicants in possession of the vehicle. Respondent is
ordered to pay the costs of this application.
DAVIS,
J