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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.: 2025/117610
In the matter between:
MVELELI VA Applicant
and
KING SABATA DALINDYEBO MUNICIPALITY Respondent
JUDGMENT
ZONO AJ:
Introduction
[1] The applicant approached this court on urgent basis for a spoliation relief.
The application is fully opposed by the respondent in that, a notice to oppose
together with answering papers have been filed, to which the applicant has
replied. At the commence ment of the hearing the parties sought to argue this
matter for a final relief. That agreement was informed by the nature of the
relief the applicant is seeking. That approach was well accepted by the court.
[2] The salient facts affecting this matter are succinctly set out hereinafter. The
applicant contends that, whilst he is the owner of the motor vehicle bearing
registration letters and numbers J[...], he had been in a peaceful and
undisturbed possession thereof since A ugust 2021 when he purchased it. He
employed Sibusiso Wadoni as a driver to ferry taxi passengers between Tsolo
and Mthatha as he is a member of Uncedo Taxi Association.
[3] The applicant further contends that on 14 th July 2025 he was unlawfully
deprived possession of the motor vehi cle by the members of the respondent
in the manner that follows: His driver Sibusiso was parking the motor vehicle
at Uncedo Taxi Association Rank in Mthatha when he was approached by
respondent’s Traffic Officer who demanded his driver’s licence and a per mit
which were produced. The Traffic Officer demanded that the driver pay
R1000.00 for the alleged illegal parking which the driver did not have. The
Traffic Officer then instructed the driver to drive the motor vehicle to the
respondent’s pound as the Tra ffic Officer was impound ing the motor vehicle.
He drove in fears of being arrested as he was threatened with arrest when he
was asking the traffic officer not to take the vehicle. The drive r drove and left
the vehicle at the Municipal pound. The driver was not given a Traffic ticket by
the Traffic Officer. He was verbally told to go and pay an amount of R1000.00
at the Traffic Department Counter. He disputed that he was illegally parking at
the Rank.
[4] The respondent contends in its answering papers that two Traffic Officers
spotted the said motor vehicle at Madeira Street (N2) Near BP Garag e
illegally parked and obstructing the Traffic on the far-right lane of the road.
illegally parked and obstructing the Traffic on the far-right lane of the road.
The two Traffic Officers, namely , Moyakhe Gomagoma and Sinalo Mantanga
approached the driver of the motor vehicle concerned and advised him that
he was obstructing the flow of the Traffic and that he parked the motor
vehicle illegally. They thereafter demanded the driver’s licence and operating
permit. They then demanded a p ayment of fine of R1000.00 for contravention
of the Regulations and the Traffic By -Laws. Such fine would be paid at the
Traffic Department. The driver was then instructed to drive to the respondent’s
Traffic Department for payment of fine. At the Traffic D epartment the driver
advised the Traffic Officers that he does not have the money and requested to
leave the motor vehicle at the respondent’s premises for him to get the
money. The Traffic Officers waited for the driver and also prepared a traffic
ticket to enable the driver to effect payment at the relevant office . The driver
did not return and payment was never made and consequently the motor
vehicle was duly impounded and kept in the respondent’s custody pending the
payment of the requisite traffic fine and the storage charges.
[5] The respondent concludes by contending that the dispossession of the motor
vehicle was lawful. The driver of the motor vehicle was not forced to leave the
motor vehicle. He left the motor vehicle to get the required traffic fine but
never returned. For its defence the respo ndent relies on the Regulation s
promulgated in terms of the National Road Traffic Act, “the regulation ,” and
the Municipality’s Traffic By -Laws p ublished in the Provincial Gazette No
5327, notice No 1090/2004 dated 16 December 2024, “the By-Laws”.
[6] The starting point is Regulation 305 (6) which provides thus:
“Whenever a vehicle has been parked in contravention of any provision
of the Act or any By-Law made under the Act , or in con travention of or
disregard of the directions of any traffic sign or notice board as
prescribed in these regulations, such vehicle may be removed or
caused to be removed and impounded by the Traffic Officer and unless
the vehi cle has been so parked in the co urse of a theft thereof, the
owner shall bear the costs of such removal and impoundment.”
[7] Municipal Traffic By-Law Section 36 provide thus:
[7] Municipal Traffic By-Law Section 36 provide thus:
“36.11 No vehicle shall park on a public road in a position or in
circumstance which in the opinion of traffic officer is likely to
cause danger or a n obstruction to other traffic on such roads.
Such vehicles shall be towed forewith to a pound yard by any
such traffic officer or person or authority instructed by such
officer.”
[8] The word Park is defined in the By-Law to mean “to keep a vehicle, whether
occupied or not, stationery for a period of time longer than is reasonably
necessary for the actual loading or unloading of persons or goods, but does
not include any such keeping of a vehicl e by reasons of cause beyond
control of the person in charge of such vehicle”.
Discussion
[9] The general principle underlying the mandament van spolie are well
established. Spoliation is the wrongful deprivation of another’s right of
possession. The aim of spoliation is to prevent self-help. It seeks to prevent
people from taking the law into their own hands. An applicant, upon proof of
two requirements is entitled to a mandament van spolie restoring the status
quo ante . The first , is proof that the applicant was in possession of the
spoliated thing. The cause for possession is irrelevant - that is why possession
by a thief is protected. The second, is the wrongful deprivation of possession.
The fact that possession is wrongful or illeg al is irrelevant as that would g o to
the merits of the dispute1.
[10] A spoliation order is available even against government entities for the simple
reason that unfortunately excesses by those entities do occur. It matters not
that a government entity may be purporting to act under colou r of a law,
statutory or otherwise. The real issue is whether it is properly acting within the
law. After all the principle of legality requires of state organs always to act in
terms of the law. All that the despoiled person needs to prove is that he was in
1 Ivanov v North West Gambling Board and Others 2012 (6) SA 67 (SCA) Para 19.
possession of the object; and that he/ she was deprived of possession
unlawfully2.
[11] In Nino Bonino3 Innes CJ enunciated the principle underlying the mandament
van spolie as follows:
“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 property,
whether movable or immovable. If he does s o, the court will summarily
restore the status quo ante and will do that as a preliminary to any
inquiry or investigation into the merits of the dispute.”
[12] From the above-mentioned factual exposition, it is plain that the applicant
posits a case that he was bona fide possessor of the motor vehicle from
August 2021 when he purchased same from Nedbank. He was in an
undisturbed and peaceful possession thereof until the alleged unlawful
deprivation by the members of the respondent on 14 th July 2025. The
respondent refutes that the applicant was in possession of the motor vehicle
at the time of the alleged spoliation; the driver was, so it is contended. It is
common cause that the dri ver of the motor vehicle, Sibusi so Wadoni was in
the employ of the applicant, ferrying passengers between Mthatha and Tsolo
and also driving long distances. On the day in question Mr Wadoni, the driver
was driving the motor vehicle and the members of the respondent took it from
him. The question of who was in po ssession of the motor vehicle on 14 th July
2025 at the time of its seizure and impoundment is addressed hereinafter.
[13] It is trite law that possession consists of both an objective and subjective
element, namely the objective or physical element ( corpus, detentio) and the
subjective or mental element ( animus). Literally, a possessor must control the
article with both the body and the mind. The physical element consists in the
factual control exercised over the article. The mental element concerns the
factual control exercised over the article. The mental element concerns the
2 Ngqukumba v Minister of Safety and Security and others 2014(5) SA 112 (CC) Para 13.
3 Nino Bonino v De lange 1906 TS 120 at 122.
state of mind of the possessor 4. Once possession is acquired it will be
retained as long as the possessor is capable of exercising physical control
over the article 5. Apart from physical control, a person must have the correct
mental attitude towards the thing before he can qualify as a possessor.
Broadly speaking, he must have the will to possess (animus possidendi)6.
[14] It is easy to deduce from the above that a person may pos sess an article on
behalf of another . I am not alone on this view. Leach J 7 writing for the full
court observed as follows:
“The learned acting judge also held that the actual possessor of the
vehicle at the time it was seized was its driver, Mpomposhe. That
finding, too is not justified. It is clear that Mpomposhe was acting as the
appellant’s employee in driving the vehicle, and therefore did not have
the intention to possess. The appellant remained in possession of the
vehicle, but exercised his possession through his employee. Indeed,
where physical control is exercised on behalf of the master or employer
by a servant or an employee, the courts have decided that only the
master or employer is entitled to bring the mandament- see Mpunga v
Malaba 1959 (1) SA 853(W) at 861F and Mbuku v Mdinwa 1982 (1) SA
219 (TK) at 222H. accordingly, in the present case, while Mpomposhe
may ha ve been the detentor, the appellant was the person in
possession of the vehicle”.
I therefore find that respondent’s point of applicant’s lack of possession of
motor vehicle is devoid of merit.
[15] No spoliation is committed where a person is lawfully deprived of his
possession8. The respondent can justify his dispossession of the applicant by
showing that the applicant was a uthorised by statute to dispose the
4 LAWSA, First Reissue, Volume 27, Para 246, Page 265.
5 LAWSA(Supra) Para 250 Page 168.
6 LAWSA (Supra) Pra 252 Page 169.
7 Unreported Judgment of Ntuthuzelo Renene v Minister of Safety and Security and another
7 Unreported Judgment of Ntuthuzelo Renene v Minister of Safety and Security and another
(Case No 951/2004- full court’s judgment-Mthatha.
8 Despatch Municipality v Sunridge Estate & Development Corporation (Pty) L td 1997 (2) ALL
SA 283 (SE);1997(8) BCLR 1023 (SR); 1997 (4) SA 596 (SE) 602 I-J.
applicant9. On the authority of Plascon -Evan Principle10, it must be accepted
that the applicant’s motor vehicle parked on the traffic lane at Madeira Street
next to BP Garage, Mthatha, thereby obstructing the movement of the other
traffic. Applicant’s motor vehicle became an obstruction to other traffic.
[16] Section 36(11)(ii) of the Municipality Traffic By-law is not the only provision
that prohibits obstruction and parking on a public road, Regulation 305 (1)
does prohibit the parking in the following terms:
“No person shall park a vehicle on a public road -(b) in any p lace
referred to in regulation 304”
Regulation 304(a) and (i) prohibits the parking / stopping of a motor vehicle on
a public road or in any other place where it would likely to constitute a danger
or an obstru ction to other traffic. It is for those circumstances that Regulation
305(6) referred to above provides for the removal and impoundment of the
motor vehicle. I find merit in the resp ondent’s contention that the removal and
impoundment of the applicant’s motor vehicle was authorised by the statute
as demonstrated above.
[17] It is basic principle of our law that a court can never lend its aid to the
enforcement of an illegal act. In our democratic order, it is the duty of the court
to apply and enforce legislation. If the validity of legislation is not impugned,
there can be no justification for not enforcing it, let alone giving legal effect to
prohibited conduct 11. Courts are constrained by the doctrine of legality to
enforce the law12 and exercise those powers bestowed upon them by the
law13. The court has a duty to refuse to countenance an ongoing statutory
contravention which is also a criminal offence. Mr Mapekula argued strongly
that the respondent’s Traffic Officer should have issued the driver with a traffic
ticket and left the motor vehicle. There is no merit in this argument. Section
89(1) of the National Road Traffic Act 93 of 1996 outlaws the parking of a
89(1) of the National Road Traffic Act 93 of 1996 outlaws the parking of a
9 Van Eck No and Van Resnseberg NO v Etna Stores 1947 (2) SA 984 (A) at 1000.
10 Plascon Evans Paints Ltd v Van Riebeek Paints (Pty) 1984 (3) SA 623 (a) 634-5.
11 Cool Ideas 1186 CC v Hubbard and another 2014 (4) SA 474 CC; 2014 BCLR 869 (CC) Para 77
& 99.
12 Section 165(2) of the Constitution.
13 National Director of Public Prosecutions v Zuma 2009(2) SA 277(SCA) Para 15.
motor vehicle on public road and also make that conduct a criminal offence.
The motor vehicle was an instrument used to commit a crime. There is no
justification for the traffic officer to leave the motor vehicle being used to
commit the crime when regulation 305 (6) of the National Road Traffic Act 93
of 1996 provides that they must remove and impound same.
[18] Provisions of Regulation 305(6) of t he National Road Traffic Act are
consistent with the provisions of section 20 of the Criminal Procedure Act 51
of 1977 as amended14 which read thus:
“The state may, in accordance with the provision of thi s chapter, seize
anything (in this chapter referred to as an article)-
(a) which is concerned in or is on reasonable grounds believed to be
concerned in the commission or suspected commission of an offence,
whether within the Republic or elsewhere”.
[19] Another provision that Mr Mapekula, applicant’s Counsel sought to invoke the
provisions of Section 36(1) and (2) of the Municipality’s Traffic By -Law which
reads as follows:
“1. The vehicle to be impounded must be towed by KSD Breakdown
or towed through the authority of the Chief protection, by a
Private Towing Company to the official municipal vehicle pound.
2. A vehicle should not be impounded unless clearly interferes with
ongoing operations or movement of traffic (double parking and
owner is not around) threaten public safety, inconvenience to
pedestrian (pavement / sidewalks) or abandoned.”
[20] Firstly, there is huge difficulty in accepting this proposition for the following
reasons:
14 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004
(4) SA 490 (CC) Para 27.
20.1 The applicant does not make out a case in the founding affidavit that
his motor vehicle was double parked and that the owner of the vehicle
was not around. Neither does he make out a case about towing of the
motor vehicle. Instead, the applicant posits a case that the driver was
parking the motor vehicle when he was appr oached by the traffic
officers. This contention cannot be sustained.
20.2 In Mistry15 Diemont JA puts thus point aptly as follows:
“When, as in this case the proceedings are launched by way of
notice of motion, it is to the founding affidavit which a judge will
look to determine what the complaint is. As was pointed out by
Krause J in Punta’ Trustee v Lahanas 1927 WLD 67 at 68 and
as has been said in many other cases… an applicant must
stand or fall by thus petition and the facts alleged therein and
that although something it is permissible to supplement
allegations contained in the petition, still the main foundation of
the application is the allegation of facts stated therein, because
those are the facts which the respondent is called up in either to
affirm or deny.”
[21] Secondly, the driver cooperated with the traffic officers and the motor vehicle
was removed with that cooperation. The driver went to obtain the traffic fine of
R1000.00 and the applicant refused to assist him due to the fact that there
was no traffic ticket given to the driver. The issue relating to the towing of
applicant’s motor is not a case the respondent is call ed upon to answer, and
therefore cannot be accepted. Reliance on section 36(1) and (2) of the By -
Law is an afterthought and is accordingly rejected. It should be accepted that
the driver cooperated with the traffic officer in the light of the offence he
committed using the motor vehicle. That removal fell four squarely with in the
provisions of regulation 305(6) of the National Road Traffic Act.
[22] In the amalgam of all this I am satisfied that the dispossession of applicant ’s
[22] In the amalgam of all this I am satisfied that the dispossession of applicant ’s
motor vehicle was not unlawful as it was in terms of the National Road Traffic
15 Director of Hospital Service v Mistry 1979 (1) SA 626 (A) at 635-636A.
Act Regulations 16 and other relevant legislations. In the circumstances
applicant’s application cannot succeed. There is no reason why the general
rule cannot be applied regarding costs. Costs of this application should follow
the result.
Order
[23] In the result I make the following order:
23.1 The application is dismissed with costs.
________________________________
A.S ZONO
JUDGE OF THE HIGH COURT (ACTING)
APPEARANCES:
For the Applicant :ADV MAPEKULA
Instructed by :CHUMA NGQONGWA ATTORNEYS INC
45 Leeds Road
Unit 4, Glencoombe Place
Mthatha
Tel: 067 188 8204
Cell: 071 083 5467
Email: cngqongwa@gmail.com
Ref: VA
For the Respondent :MR MALALA
Instructed by :MVUZO NOTYESU INC
2ND Floor Old T.H Madala Chambers
16 Regulation 304(a) and (i), 305(6) and Regulation 320 which prohibit the obstruction and
interruption of free and proper passage of traffic on a public road.
14 Durham Street
Mthatha
Tel: 047 531 4714
Email: mnotyesi@tekomsa.net
Ref: Mrs A. Klaas/Mr Malala
Matter heard on : 23 July 2025
Delivered on : 01 August 2025