Xaba v Mthetwa and Another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Maumela J
• Judgment Date: 03 November 2021
• Docket Number: 42212/21
• Hearing Date: 03 September 2021
• Court: Gauteng High Court, Pretoria
• Citation: 2021 JDR 2775 (GP)

Maumela J:

1.

This case came before this court in the Urgent Roll. The Applicant seeks an order in the following terms:

1.1

That the matter be dealt with as one of urgency in terms of Rule 6(12) of the Rules of this Honourable Court and that the normal High Court Rules relating to applications be dispensed with and that insofar as the Applicant has not complied with the Rules of this Court, that her failure to do so be condoned;

That both Applicant and Respondents are directed to ensure joinder of Johannesburg-Tembisa Taxi Association ("JTTA") and/or other parties affected by the decision of the JTTA or a non-joined party in this suit.

1.2

That the Respondents are directed to allow Applicant access to view or inspect the vehicles that are subject to dispute, within convenient and reasonable periods of the day.

1.3

That no order as to costs be made.

2.

In essence, the Applicant seeks a spoliation order. She submits that by its mere nature; an application for a spoliation order comes urgent. She submitted that she was in possession of and in undisturbed possession of the property which is the subject of this application when she was unlawfully and forcefully removed from possession by the Respondents.

3.

In this case, the court has to determine whether the Respondents are to be ordered to restore possession to the Applicant, or whether the Respondents have advanced a good defence in opposition to the application for spoliation. Applications for mandament van spolie stem from a common law remedy which exists to protect possessors against unlawful and forceful dispossession. This remedy prohibits citizens from taking the law into their hands.

4.

In order to succeed, the Respondents to an application for mandament van spolie have to raise one of the following defences:

4.2

Firstly, either that they did not commit the act alleged by the Applicant or

4.2

Secondly, that if they did remove the Applicant from possession; the said dispossession was not unlawful but was authorized by law.

5.

In their answering affidavit, the Respondents admit that they did remove the vehicles in issue from the Applicant's undisturbed

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possession and that they took the said vehicles to another place for safe keeping. They aver that the Applicant consented to the removal of such property. The Applicant denies that she agreed to the removal of the vehicles. She argues that without a court order authorizing the Respondents to remove the vehicles, such removal ought to be found to be unlawful and forceful.

6.

It is trite that applications for mandament van spolie do not involve considerations of ownership or title. All the court has to find out is whether the applicant was in peaceful possession of the object in issue and whether unlawful and forceful removal from possession took place. Once the Respondents admitted to the removal of the objects which in this case happen to be the vehicles in issue; dispossession stands proven. What then remains is for the Respondent to prove that he or she was legally justified to remove such object from the Applicant's undisturbed possession.

7.

The Applicant makes the point that in admitting that they have removed the vehicles from the Applicant's lawful possession, the Respondents contradict themselves regarding the reasons for the removal because in their letter, their legal representatives state that the removal was because the Applicant has no right to possess the vehicles, whilst in their answering affidavit they state that the said removal was subsequent to an agreement between the Respondents and the Applicant.

8.

In the case of Ivanov vs North West Gambling Board and Others [1] , the court confirmed that the aim of a spoliation order is to prevent self-help, by way of preventing people from taking the law into their own hands. The Applicant points out that in that regard, the cause for possession is irrelevant. The Applicant argues therefore that a defence in an application for a spoliation order cannot be sustainable in law unless the dispossession is disputed. The author Prize [2] ; at page 108, states the following: "the only remedy available to the Respondent is in denial of the facts alleged".

9.

It is trite that in cases of (iudicium possessorium) or possessory suit, the Applicant only has to prove that he or she was in lawful possession and that there was an unlawful deprivation of such possession; that is deprivation without consent. If the Applicant

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succeeds in proving the above; restoration of the position ante omnia must be ordered. Possession must be ordered to be restored. However, in this case, the Respondents dispute that the alleged dispossession was unlawful. They aver that the Applicant consented to the removal within the process of discussions, arrangements and dealings done with JTTA and that the cited Respondents are also lawful possessors, according to laws governing intestate succession, of the assets of the estate including the 12 (twelve) taxis; inclusive of the...