Mqoboli v Qwesha

• Jurisdiction: South Africa
• Judge: Luthuli AJ
• Judgment Date: 21 February 2008
• Docket Number: 1164/2007
• Court: Transkei Division
• Hearing Date: 14 February 2008
• Citation: 2008 JDR 0849 (Tk)

Luthuli AJ:

[1]

This is an application for a spoliation order. The applicant seeks an order that the first respondent be ordered to return a motor vehicle,

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Luthuli AJ

a Toyota double cab with registration letters and number CYT 823 EC (the motor vehicle) to the applicant forthwith. The applicant also seeks an order that the first respondent pays costs of the application on attorney and client scale.

[2]

The applicant is an adult male pensioner. The first respondent is the brother-in-law of the applicant. The second respondent is the Sheriff of the High Court at Elliotdale. The third respondent is a firm of attorneys. The fourth respondent is the Master of the High Court, Transkei Division. The applicant seeks no relief against the second, third and fourth respondents.

[3]

The application is opposed by the first respondent. It is not opposed by the second, third and fourth respondents.

[4]

It is common ground between the parties that on 7 July 2007 the second respondent removed the motor vehicle from the premises of the applicant in the presence of the applicant and the applicant's son. Nkosinathi Mqoboli (Nkosinathi). It is also common cause that the second respondent was acting on the instructions of the third respondent and had in his possession a letter dated 6 July 2007 from the third respondent demanding that Nkosinathi should

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Luthuli AJ

hand over the motor vehicle to the second respondent for safekeeping pending finalisation of the appointment of the first respondent as the executor of the estate of the applicant's deceased wife. It is further common cause that the third respondent was acting on the instructions of the first respondent at all material times and that the second respondent removed the motor vehicle from the applicant's premises as aforesaid and handed it over to the first respondent on the instructions of the third respondent. The first respondent is in possession motor vehicle. The second respondent was not authorised by any court order or process to remove the motor vehicle.

[5]

In the founding affidavit, the applicant avers that when he was despoiled, he was in peaceful and undisturbed possession of the motor vehicle. This allegation is not disputed by the first respondent in the answering affidavit. The first respondent's contention is simply that the applicant was not in possession of the motor vehicle and that it was in fact Nkosinathi was in possession...