About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2024
>>
[2024] ZAECMHC 87
|
|
Dumalisile v Gushman (Reasons) (4437/2024) [2024] ZAECMHC 87 (31 October 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION:
MTHATHA
CASE NO: 4437/2024
In the matter between:
ZOLEKA
NANCY
DUMALISILE
Applicant
And
PHENDULE
LANGTON
GUSHMAN
Respondent
REASONS FOR JUDGMENT
MHAMBI AJ
INTRODUCTION
1.
This matter was brought on urgent basis with a
directive to be heard as such on 15 October 2024, consequently it was
argued and
the court having read the papers filed of record, and
having heard the counsel for the parties, it granted orders as they
were
prayed in the applicant’s notice of motion, the following
orders were granted:
a.
This application is heard on urgent basis pursuant
to the provisions of Uniform Rule 6(12);
b.
The respondents be and are hereby directed to,
forthwith, restore Erf 5[...], extension 15, Butterworth to the
applicant’s
possession.
c.
The respondents be and are hereby interdicted and
restrained from unlawfully disturbing the applicant’s
possession of the
property
d.
The respondents pay the costs of this application.
The one party paying the others to be absolved.
2.
The purpose of this judgment is to give reasons
for the appropriate orders granted during the hearing of this matter.
BACKGROUND FACTS
3.
The Applicant is ZOLEKA NANCY DUMALISILE, she
acted, in instituting these proceedings, in her capacity as the
executor of the estate
of the late Mr. Kaiser Daliwonga Matanzima,
“
the deceased
”
.
4.
The property that is the subject matter of these
proceedings was owned by the deceased and is described as erf 5[...],
Butterworth,
Extension 15 Township, Registration division, Gcuwa and
measuring 642 square meters, “
the
property
”
.
5.
The first Respondent is Phendule Langton Gushman,
an adult male person of No. [...] F[...] Street, Butterworth.
CAUSE OF ACTION
6.
It appears
ex facie
the papers that the applicant secured possession
of the property by putting one Khululwa Gubevu,”
Khululwa”
who, it is alleged, remained in possession of the
property until 05 October 2024.
7.
Khululwa deposed to a confirmatory affidavit in
support of the application according to her affidavit, she stated
that:-
3.
“
On Saturday, 05 October 2024, the First Respondent, along
with police officers from Umsobomvu Police Station, whose names and
surnames
I do not know, and other unknown parties who appeared to be
speaking foreign language came to the property and forced me out of
it. I did not agree to this. I also learnt in the process that the
applicant was also unaware of this and had not authorized it”.
8.
This matter falls within
mandament
van Spolie
as the cause of action.
9.
Mandament van spolie
remedy
relates to possession. Lawsa defines possession as: -
“
The
combination of a factual situation and a mental state consisting in
the factual control or detention of a thing (corpus) coupled
with the
will to, possess the thing (animus possidendi)
[1]
.
10.
In
Yeko
v Qana
[2]
,
Mandament van spolie is in the first place described as possessory
remedy (
remedium
possessorium
)
11.
In
Nino
Bonino v De Lange
[3]
Innes CJ explained the nature of spoliation: -
“
Spoliation
is an illicit deprivation of another of the right of possession which
he has, whether in regard to movable or immovable
property or even
regard to a legal right
.”
12.
The remedy is possessory suit based on the
maxim
spoliatus
ante omnia restituendus
est.
in simple terms, this means
that possession must be restored to the dispossessed person before
enquiring into anything else.
13.
In
Painter
v Strauss
[4]
the court described spoliation as being designed to be a robust,
speedy remedy which served to prevent recourse to self-help. In
Yeko
V Qana
[5]
the
sole requirements of spoliation were described as that the
dispossessed person had a possession of a kind which warrants the
protection accorded by the remedy, and that he was unlawfully
ousted. All that must be proved is the fact of prior possession
and that the possessor was deprived of that possession unlawfully.
In this context unlawfully means without agreement or
recourse to
law.
14.
The essential characteristic of a possessory
remedy is that the legal process whereby the possession of a party is
protected (
iudicium possessorium
),
is kept strictly separate from the process whereby a party’s
right to ownership or the other right to the property in dispute
is
determined (
iudicium potitorium)
.
15.
Erasmus,
Superior Court Practice
[6]
goes
further and says on the object of spoliation: -
“
Merely
to restore the status quo ante the illegal action. It decides
no rights of ownership, it secures that if such decision
be required,
it shall be given by court of law, and not affected by violence.
If before the spoliation either party needed
a legal decision to
establish his rights, he requires it just as much after, as before
the order. He is in no better and
not worse, position than he
was before the spoliation. There is consequently nothing inherent in
a
Mandament
Van Spolie
which
demands that it should be conditioned as being granted
pendente
lite
[7]
.
16.
This Court had to deal with this matter on the
basis of Courts approach
Blendrite Pty
Ltd and another V Moonisami and another
(2021) ZASCA 77
,
2021 (5) SA
61
(SCA)
the Court held that, a Court
hearing a spoliation application does not concern itself with the
rights of the parties (whatever they
might have been) before the
spoliation took place, it merely enquires whether or not there has
been a spoliation, and if there
has been, it restores the status quo
ante
.
17.
I
agree with the reasoning by Court in
Wait
v Wait
[8]
,
in spoliation proceedings the Court will, therefore, neither enter
into lawfulness of the applicant’s possession, nor into
question of ownership.
18.
Clearly, the remedy of spoliation protects
possession.
19.
In this case, the applicant had satisfied the
court that, until 05 October 2024, she was in peaceful and
undisturbed possession
of the property. She did not authorize
any one to dispossess her of the property.
20.
Similarly, the confirmatory affidavit by Kululwa,
sufficiently testifies that she was put into possession of the
property by the
applicant, such a peaceful possession was disturbed
by the action of the 1
st
Respondent when she was forced out of the property
without her consent.
21.
The 1
st
Respondent has suggested in the answering
affidavit that the property was owned by his late father, in that a
will marked annexure
“
A”
was attached in the answering affidavit.
22.
This
1
st
Respondent’s
proposition is meritless and void of basis,
Innes
CJ
held
in
Nino
Bonino
[9]
:-
“
It
is a fundamental principle that no man is allowed to take the law
into his own hands, no one is permitted to dispossess another
forcibly or wrongfully and against his consent of the possession of
the property, whether movable or immovable. If he does so the
court
will summarily restore the status quo ante and will do that as
preliminary to any inquiry or investigation into merits of
the
dispute”.
23.
The dispute of ownership which the 1
st
Respondent sought to suggest in the answering
affidavit is irrelevant on the determination of spoliation,
possession is what the
Court has to consider.
24.
Van
Blerk JA
correctly
put it in
Yeko
v Qana
[10]
,
that the injustice of the possession of the person despoiled is
irrelevant as he is entitled to a spoliation order even if he
is a
thief or robber. The fundamental principle of the remedy is
that no one is allowed to take the law into his own hands.
25.
In
Ngqukumba
V Minister of Police
[11]
the Constitutional Court held that the Mandament van Spolie entailed
restoration of possession of the vehicle in question before
all else
and directed that the possession be restored. The question of whether
the erstwhile possession had lawful cause to possess
was a matter to
be dealt with after restoration of possession under the Mandament van
Spolie had taken place.
26.
The 1
st
Respondent argued and challenged the authority of
the applicant, qua her capacity as executor to institute the
spoliation proceedings,
it was argued, the executor was not at the
time in possession, but a concession was made that Ms. Bukelwa Gubevu
was in possession
of the property, it was further argued, only her
had
locus standi
to
institute the current proceedings.
27.
I
disagree with that argument or proposition. The authors,
Hofmeyer and Paleker, in the book titled “
The
Law of Succession in South Africa 2023”
described
the executorship as
sui
genesis
office,
a “
special
office
”
.
The authors mentioned that the executor derives powers from common
law and the Act
[12]
, the
executor has fiduciary duty to act in the best interests of the
estate and the beneficiaries.
Section
26 (1) of the Act:
-
“
Immediately
after letter of executorship have been granted to him an executor
shall take into custody or under his control all the
properties,
books and documents in the estate, and not in possession of any
person who claims to be entitled to it under any contract,
right of
retention or attachment”.
28.
In
Kirsten and
Another V Moodley and Another
,
unreported KZN Judgement, loaded on
SAFLI as 2016 ZAKZDHC 31 (22 July 2016) para 25:-
“
As
an executor he is required in exercising his fiduciary duty to act in
the best interests of the estate and the beneficiaries.
He is
obliged to take control of the assets, preserve them and administer
and wind up the estate as soon as possible”
29.
The point this Court emphasizes is that the
executor has powers to exercise control over the assets of the
deceased, that exercise
of control, is equal to possession required
to determine the spoliation proceedings.
30.
LAWSA
[13]
is
authoritative in this regard, according to LAWSA, the law recognizes
so called quasi-possession or judicial possession
(possessio
iuris)
which
consists of the exercise of control over an incorporeal coupled with
animus
to
exercise control.
31.
The executor has quasi- possession over the
deceased assets, that exercise of control is sufficient to give the
applicant the required
locus standi
for Mandament van Spolie purposes.
32.
The 1
st
respondent in its answering affidavit sought to
suggest that it was in peaceful possession of the property and that
it cannot be
said the applicant was in peaceful possession thereof,
it further argued and suggested that the said Kululwa Gubevu never
took
occupation of the property.
33.
In this way the 1
st
respondent raised a defence of counter-spoliation.
34.
The
Supreme Court of Appeal in the
City
of Cape Town v The Human Rights Commission and Others
[14]
per Mocumie JA, refers to Silberberg and Schoeman, “
The
Law of Property
[15]
,
the authors state that:-
“
As
a general rule, a possessor who has been unlawful dispossessed cannot
take the law into [their] hands to recover possession.
Instead
(they) will have to make use of one of the remedies provided by law,
for example the Mandament van spolie. But its
recovery is
forthwith, (instanter) in the sense of being still part of the act of
spoliation, then it is regarded as a part of
the act of spoliation….
It is thus an established principle that counter-spoliation is not a
stand-alone remedy and does
not exist independently of a spoliation”.
35.
During the hearing of this matter, Mr. Bodlani SC,
who appeared for the applicant, submitted that counter- spoliation is
permissible
where a peaceful and undisturbed possession of the
property has not yet been acquired, and where counter-spoliation
would not establish
fresh breach of peace. He further submitted
that the 1
st
Respondent’s
conduct of possessing the property in the manner he did, amounted to
breach of the applicant’s peaceful
possession, the defence of
counter-spoliation does not exist under such circumstances. I find
merit in this argument, and I agree
with it.
36.
The defence of counter-spoliation as suggested was
nothing but a continuation of the existing breach of peaceful and
undisturbed
possession of the property by the applicant through Ms.
Gubevu.
37.
Consequently, the defence of counter-spoliation
stands to fail. The applicant has satisfied this court that she
was in peaceful
and undisturbed possession of the property until such
possession was breached by the 1
st
respondent.
38.
In the result, the application succeeded, and I
granted orders appearing in paragraph 1 hereof as I did during the
hearing of this
matter.
MHAMBI M
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES
Counsel for the
Applicant:
Mr. Bodlani SC
Instructed by:
Z. N. Dumalisile Attorneys Inc.
No.
07 Craister Street
Mthatha
Counsel for the
Respondents:
Mr. Qangule
Instructed
by:
Qangule & Hlabahlaba Attorneys
Office
No. 04 Avalon Court
Butterworth
Date of
hearing:
15 October 2024.
Date of
delivery:
31 October 2024
[1]
27
LAWSA 2 ed 70
[2]
See
1973 (4) SA 735
A at 739 (E)
3. 1906 TS 120
[4]
1951
(3) SA 307
(0) at 31 – H4A-B
[5]
See
ibid foot note 2
[6]
See
Erusmas, Superior Court practice [service 21 2023] D7-1, see also
authorities referred therein
[7]
See
2021 (5) SA 61
(SCA at paragraphs [6)-[7]
[8]
See
1929 EDL 342
, at 345
[9]
See
ibid footnote 3 at page 122
[10]
See
ibid footnote 2 739 F-G
[11]
See
2014 (4) SA 112
(cg at para 21)
[12]
See
2001 revision of 1001 edition at page 14
[13]
See
27 Lawsa 2 ed 70
[14]
See
2024 ZASCA 110
(10 July 2024)
[15]
See
6ed (2019) at 353