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[2024] ZANCHC 32
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Moribe Tombstones (Pty) Ltd v Balju (Kuruman) and Others (610/2024) [2024] ZANCHC 32 (5 April 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
Number: 610/2024
Date
Heard: 15 March 2024
Date
Delivered: 5 April 2024
Reportable:
YES /
NO
Circulate
to Judges: YES /
NO
Circulate
to Regional Magistrates: YES /
NO
Circulate
to Magistrates: YES /
NO
In
the matter between:
MORIBE
TOMBSTONES (PTY) LTD
APPLICANT
and
THE
SHERIFF BALJU (KURUMAN)
FIRST RESPONDENT
MORIBE
ATTORNEYS
SECOND RESPONDENT
DE
WAAL GROBBELAAR & FISCHER ATTORNEYS
THIRD RESPONDENT
Coram:
Tyuthuza AJ
JUDGMENT
Tyuthuza
AJ
INTRODUCTION
1.
The applicant
launched this urgent application on 7 March 2024 wherein the
applicant was granted interim relief in the form of a
rule
nisi
stipulating:
1.1
“
That
the First Respondent release all goods attached and removed at the
Applicant’s address of 1[...] S[...] Road, Kuruman,
8460 on 05
March 2024, inter alia, a compressor into the Applicant’s
possession.
1.2
That
the Respondents are interdicted and prohibited from proceeding with
the sale of the attached and removed goods and/or any other
goods in
the possession of the First Respondent belonging to the Applicant on
08 March 2024;
1.3
That
the First Respondent bear all costs relating to the removal and
return of the goods forcibly removed and possessed on 05 March
2024
at 1[...] S[...] Road, Kuruman, 8460;
1.4
That
the First Respondent pay costs on an attorney and own client scale
for this application
.”
2.
The return day of the rule
nisi
was 15 March 2024, and I had to determine if the applicant satisfies
the requirements for a final order. The first respondent,
the
Sheriff, who executed the warrant of execution, opposed the
application.
3.
The first respondent raised a point
in
limine
in relation to the urgency of
this application.
4.
The applicant essentially sought a
mandament van spolie
for the return of its goods which were attached and removed by the
Sheriff on 06 March 2024 and further to interdict an auction
for the
sale of the goods on 08 March 2024.
BACKGROUND
5.
From the evidence it is to be gleaned that
on 8 December 2022, judgment was granted against the second
respondent (Moribe Attorneys
(Pty) Ltd) under case number 368/2022 in
the Kuruman Magistrates Court. The court thereafter issued a
warrant of execution
against the goods of the second respondent on 31
January 2023, which goods were attached by the first respondent on 10
February
2023. The warrant of execution was re-issued on 17
October 2023 and the Sheriff attached the goods on 20 November 2023.
The
second respondent was informed on 14 February 2024 that the
Sheriff was instructed to proceed with the removal of the goods and
that the auction would take place on 08 March 2024. The auction
was advertised in the local newspaper on 15 February 2024
and 22
February 2024. On 04 March 2024, the Sheriff again attended at
the second respondent’s office and advised that
the auction was
scheduled for 08 March 2024. The applicant informed the third
respondent (De Waal Grobbelaar & Fischer
Attorneys) that the
property belonged to the applicant and requested the third respondent
to provide an undertaking that the property
would not be removed.
No such undertaking was forthcoming. On 06 March 2024, the
Sheriff removed the property housed
at 1[...] S[...] Road, Kuruman.
6.
The applicant launches this application in
its capacity as the ‘owner of the goods’ which were
judicially attached and
removed. It is the applicant’s case
that the Sheriff was not authorised by a court order or empowering
provision to attach
the goods and unlawfully dispossessed the
applicant of its goods. The applicant avers that the Sheriff
was obliged in terms
of the warrant of execution to remove goods from
[...] S[...] Road Kuruman and not 1[...] S[...] Road Kuruman, and as
a result
thereof the Sheriff removed goods from the wrong address,
goods which belonged to the applicant and not the second respondent.
7.
The warrant of execution issued in January
2023 reflects the address of the second respondent as [...] S[...]
Road, Kuruman, whilst
on the return of service of the warrant of
execution, the address is reflected as 1[...] S[...] Road Kuruman.
It is now common
cause that the second respondent operates its
business from 1[...] S[...] Road Kuruman. This address is also
the principal
address of the applicant and the address wherefrom the
applicant operates its business. The applicant contends that by
virtue
of a subletting agreement, the second respondent is leasing
the premises together with all the furniture at 1[...] S[...] Road
from the applicant. The applicant avers that the Sheriff
exceeded his powers in that there was no court order authorising
him
to attach and remove goods from 1[...] S[...] Street. He was
only entitled to execute in terms of the re-issued warrant
at [...]
S[...] Street.
8.
The first respondent alleges that despite
being aware of the attachment of goods since at least 06 March 2023,
Mr Moribe, who is
the sole director of both the applicant and the
second respondent, never indicated that the goods attached on 10
February 2023
and 2 November 2023 actually belonged to the
applicant. It was further contended that the applicant failed
to take any steps
in terms of rule 44(2)(a) of the Magistrates’
Courts Rules to claim ownership of the goods. The first
respondent disputes
that he acted unlawfully in the removal of the
goods and alleges that he complied with the requirements of Rule 41
of the Magistrates’
Courts Rules.
LAW
9.
Rule 41 (3) of the
Magistrates’
Courts Rules
provides
as follows:
When
the sheriff is instructed, by any court process, to recover any sum
of money by execution against the goods of any person,
the sheriff
shall proceed forthwith to the residence, place of employment or
business of such person
, unless the execution creditor or the
instructing attorney gives different instructions regarding the
location of the assets to
be attached, and there—
(a)
demand satisfaction of the warrant and, failing satisfaction;
(b)
demand that so much movable and disposable property be pointed out as
the sheriff
may deem sufficient to satisfy the said warrant, and
failing such pointing out;
(c)
search for such property.
”
(own emphasis)
10.
In
the matter
Wilken
and Others NNO v Reichenberg
[1]
Goldstein J, in response to the submission that rule 45(3) of the
Uniform Rules of Court requires service of a writ to occur at
the
dwelling-house or place of employment or business of the judgment
debtor, stated the following:
“
In
my view, it could not possibly have been the intention of the Rule to
disallow personal service in circumstances where the debtor
was not
at his home or at his place of employment or business. What the
Rule allows is service at such places in the absence
of the debtor.
The Rule even allows
service at some other location if the assets to be attached are there
and presumably if the debtor is not
.
It would be absurd, however, to deduce from these provisions
that the best of all service, namely personal service, was
being
sanctioned only if the debtor was at one of the places mentioned in
the Rule and was otherwise not to be permitted. If
this were so
a debtor attempting to evade his creditor and having left all
addresses known to the latter could not be served with
a writ under
Rule 45(3) if he were found staying temporarily in an hotel as the
respondent says was the case with himself. It
would require
very clear language for me to be persuaded that this was the
intention of the Rulemaker.” (own emphasis)
11.
In terms of Rule 44(2)(
a
)
of the Magistrates’ Courts Rules:
“
Where
any person other than the execution debtor (hereinafter in this
sub-rule referred to as the “claimant”) makes
any claim
to or in respect of property attached by the sheriff in execution of
any process of the court or where any such claimant
makes any claim
to the proceeds of property so attached and sold in execution the
sheriff shall require from such claimant to lodge
an affidavit in
triplicate with the sheriff within 10 days from the date on which
such claim is made, setting out—…
”
ANALYSIS
12.
The applicant has conceded in its founding
affidavit that the second respondent conducts its business from
1[...] S[...] Road Kuruman.
I find no merit in the applicant’s
case that the removal of the goods was contrary to the law on the
basis that the
goods were not removed from [...] S[...] Street as per
the warrant of execution. It is clear that the second
respondent conducts
its business at 1[...] S[...] Street, thus the
Sheriff was authorised in terms of the law to execute on the goods at
the business
address of the second respondent. The empowering
provisions of Rule 41 make it clear that the Sheriff was entitled to
execute
the warrant at the business of the second respondent,
alternatively, at any other location so instructed by the third
respondent.
13.
It was submitted and argued on behalf of
the applicant that the applicant seeks a spoliation remedy, but this
was not very clear
in the applicant’s papers, as the applicant
based its claim on its alleged ownership of the goods and not
possession of the
goods. The applicant’s reliance on
spoliation only became clear in its replying affidavit and heads of
argument.
14.
The first respondent understood the
applicant’s case to be based on
rei
vindicatio
. It was contended that
it was clear from the founding affidavit that the applicant was
claiming for the return of the goods
in terms of
rei
vindicatio
and had not made out a case
for spoliation. The first respondent argued that the applicant
had failed to make out a case
for
rei
vindicatio
and even if the applicant’s
case was based on spoliation, the applicant has failed to prove such
a case.
15.
The
mandament
van spolie
and
rei
vindicatio
are
distinguishable. It is not often that these remedies are
mentioned by name in a notice of motion. However, it is
from
what is pleaded and from the factual evidence in the affidavits which
distinguishes the one from the other.
[2]
16.
It
is trite that the
mandament
van spolie
primarily
seeks to prevent individuals from taking the law into their hands.
It prevents the unlawful dispossession of property
without consent, a
court order or any other legal basis. It is about protecting
and restoring peaceful and undisturbed possession
before the merits
of the case can be considered. Therefore, there must be actual
possession and actual unlawful dispossession of
the property.
[3]
17.
The court held in
Van Rhyn and Others NNO v Fleurbaix
Farm (Pty) Ltd
2013 (5) SA 521
(WCC), thus:
“
The mandament
van spolie is directed at restoring possession to a party which has
been unlawfully dispossessed. It is a robust
remedy directed at
restoring the status quo ante, irrespective of the merits of any
underlying contest concerning entitlement to
possession of the object
or right in issue; peaceful and undisturbed possession of the thing
concerned, and the unlawful despoilment
thereof are all that an
applicant for a mandament van spolie has to show”.
18.
It is trite that mere possession is
essential in the case of the
mandament
van spolie
. On the applicant’s
own version, the possession of the goods rested in the second
respondent and not the applicant.
Furthermore, it is clear from
the warrant of execution that the goods were judicially attached and
removed from the second
respondent’s possession in terms of the
court order granted in December 2022.
19.
The applicant has, on the facts, failed to
prove that it was in possession of the goods on 06 March 2024 and
that there was unlawful
deprivation of its possession. This
remedy focuses on protecting possession and not ownership. The
applicant therefore
cannot succeed on the grounds of spoliation.
20.
The
rei
vindicatio
is
based on ownership of the property. It is about restoring
ownership of the property, which is in existence and is identifiable
and which is in possession of a third party. These facts must
exist when the application is launched.
In
Chetty
v Naidoo
[4]
,
the legal position in relation to what is expected of an owner
relying on this remedy is as follows
:
“
It
is inherent in the nature of ownership that possession of the res
should normally be with the owner, and it follows that no other
person may withhold it from the owner unless he is vested with some
right enforceable against the owner (e.g. a right of retention
or a
contractual right). The owner, in instituting a rei vindicatio, need,
therefore, do no more than allege and prove that he
is the owner and
that the defendant is holding the res --- the onus being on the
defendant to allege and establish any right to
continue to hold
against the owner.”
21.
The applicant’s
ownership was put into dispute and despite being requested to provide
proof that the goods belonged to it,
the applicant failed to do so.
In order to
succeed with the remedy, the applicant ought to have proved that (a)
it was the owner of the goods removed on 06 March
2024; (b) that the
Sheriff was in possession of the goods at the time of the
commencement of the application; and (c) that the
goods in question
are still in existence and clearly identifiable. Despite the
fact that it was proved that the Sheriff was
in possession of the
goods on 07 March 2024 when the application was launched and that the
goods are still in existence and clearly
identifiable, the applicant
has failed to prove that the goods removed from the premises on 06
March 2024 is the property of Moribe
Tombstones (Pty) Ltd. On
this basis, I find that the applicant has failed to make out a case
based on
rei
vindicatio.
URGENCY
22.
It is trite that our
law recognises spoliation applications to have an element of inherent
urgency.
“
That
inherent urgency underlies a claim for the return of property (a
vindication claim) is inferred from the importance our law
attributes
to this remedy. Firstly, in a claim for vindication our law
factually presume that the owner will suffer harm
if an interdict is
not granted. Secondly, the judgment of Chetty v Naidoo has
confirmed that ‘it is inherent in the
nature of ownership that
possession of the res should normally be with the owner.
.
. .Our law supports an approach that in respect of a claim where a
litigant pursues vindication then the proceedings always have
an
element of inherent urgency to it. Particularly in
circumstances where the applicant complies with the legal
requirements
for a right of vindication and the respondent offers
defences that does not defeat the heart of the vindication
claim.”
[5]
23.
The first respondent contends that the application is not
urgent in that the applicant was aware of the attachment of the goods
and the intention to sell the goods at a sale in execution since at
least 06 March 2023, alternatively, 19 May 2023. The first
respondent argues that the applicant launched this urgent application
approximately ten months after the seizure and furthermore,
the
applicant never informed the Sheriff on 06 March 2024 that the
property
belonged to the applicant. It was further
contended that the applicant failed to take any steps to set aside
the judgment of 06
March 2023. The first respondent takes the
view that the urgency is self-created.
24.
I find the matter to be urgent. I am
of the view that if the matter was not heard on an urgent basis, the
applicant would
not have been afforded substantial redress at a
hearing in due course because the auction was to be held on 08 March
2024, the
day before the application was launched.
INTERDICT
25.
The applicant must satisfy the following
requirements before the grant of a final Interdict:
a)
a clear right;
b)
an injury actually committed or reasonably apprehended; and
c)
the absence of similar protection by any other ordinary remedy.
26.
Whether
that right is clear is a matter of evidence. In order therefore to
establish a clear right, the applicants have to prove
on a balance of
probability, facts which in terms of substantive law establish the
right relied on.
[6]
27.
In my view, the applicant failed to
establish that it had a clear right to the goods removed from the
premises on 06 March 2024.
The
onus
was on the applicant to prove that it was in possession of the goods
or alternatively that the applicant was the owner of the goods.
The applicant has failed to do so.
As
a result, I make the following order:
1.
The
rule nisi
issued on 07 March 2024 is discharged with
costs.
TYUTHUZA, T
ACTING JUDGE, HIGH
COURT
NORTHERN CAPE DIVISION
APPEARANCES
On
behalf of Applicant:
Adv
J Mongala
Instructed
by:
Moribe
Attorneys
On
behalf of First Respondent:
Adv
AS Sieberhagen
Instructed
by:
De
Waal Grobbelaar & Fischer Inc.
[1]
1999
(1) SA 852
(W) at p 859
[2]
Motlhasi
v Standard Bank of South Africa
(5460/22)
[2022] ZAGPPHC 488 (4 July 2022); [2022] JOL 54701 (GP) para 19
[3]
City of
Ekurhuleni Metropolitan Municipality v Unknown Individuals
Trespassing and/or Attempting to Invade and/or Settle on the
Immovable Property Described as Farm Rietfontein 153 (and also known
as Palm Ridge Extensions 10, 18–30) and others
[2023] 2 All SA 670
(GJ)
[4]
1974 (3) SA 13 (A) 20 B-C
[5]
Jacobs
v Mostert
(16942/2021)
[2021] ZAWCHC 213
(25 October 2021) para 14-15
[6]
LAWSA
Vol.
11, 2
nd
Ed.
397.; see also
Hartland
Lifestyle Estate (Pty) Ltd and another v APC Marketing (Pty) Ltd and
another
[2023] JOL 59643
(WCC) para 40