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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 LOCAL DIVISION – PORT ELIZABETH

 

                                                                                                Case no: 3275/2013

                                                                                                Date heard:  19.11.2013

                                                                                                Date delivered: 4.2.2014

 

In the matter between:

 

PAUL JACQUES ANDRÉ                                                                                          Applicant

 

vs

 

LYNETTE ANDRÉ                                                                                                  Respondent

 

 

JUDGMENT

TSHIKI  J:

 

[1]        In this matter the parties herein are said to be currently locked in an acriminonious divorce which has not been finalised.

 

[2]        On 12^th November 2013 by way of urgency, applicant herein filed the present spoliation proceedings against the respondent, who is his wife, claiming immediate return to him of the listed 41 items of goods which he alleges were spoliated by the respondent.  Although both parties had vacated the property a farm in no […….] in May 2012, applicant contends that he was still utilising an office with a garage next door and for the purpose of running his business.  He was also utilising a storeroom for storing his personal belongings.  About the 29-31 October 2013 applicant noticed that the goods were moved from the premises completely.  He also had seen an employee of the respondent driving a bakkie with some of his goods on the back of the bakkie.  The list of the property is contained in annexure “PJA1”.  Applicant therefore contends that when the property was removed from the farm it was in his possession.

[3]        Respondent has opposed the applicantion on various grounds the first of which is that the application lacks urgency and cannot be treated as such.  She says so for the following reasons:

[3.1]     that until May 2012 the applicant and herself together with their children were living on the said property which she refers to as the farm.  She is the managing Trustee of the Trust called Standes River Trust and applicant is neither a Trustee nor a beneficiary of the trust.  On 28 May 2012 they vacated the farm and moved to a rented home in St Francis.  All their belongings including the items referred to in the list “PJA1” were left on the farm.  At no stage did applicant obtain possession nor even to use these items.  He had also no place to store them and neither did he have a reason to use them.

[3.2]     Items which she had occasion to remove from the farm were removed by agreement with the applicant.  These items were removed with the applicant’s consent as early as September 2013 and later on the 14 October 2013 with applicant’s knowledge and consent.  Most of the items claimed by applicant to have been spoliated were returned to the farm by 13h00 on 7 November 2013.  Therefore, she contends that this matter cannot be regarded as urgent and that the documents that applicant claims were needed for his business had no relevance whatsoever to the applicant’s business because they were too old for that purpose.  By the time applicant demanded delivery of the property by way of annexure “PJA3”, the property had already been returned to applicant and this was at 16h31 on 7 November 2013.  Therefore, according to respondent the matter can never be characterised as urgent.  In essence respondent’s contention is that all items that she had to remove from the farm or elsewhere were removed with the knowledge of the applicant.

[3.3]     Respondent denies that she removed the stepladder.  She only removed it from the double garage to another garage and is still in that garage.

[3.4]     Respondent also contends that the following property was removed and subsequently returned back to the farm on 7 November 2013 at about 13h00.  They are an electric 2 wheel-bench-grinder and safety helmet, two large loudspeakers, one sub-woofer loudspeaker, three small loudspeakers and a telefax machine together with certain other inconsequential items.

 

[4]        Respondent, therefore, denies the allegations by applicant and that any goods which are alleged to have been removed by respondent from the farm were returned to the farm.  The parties were married out of community of property with the accrual system. 

 

[5]        In my view, as will be apparent later in this judgment, the issues herein are whether the application should be treated as one of urgency.  Secondly, whether there is a dispute of fact which cannot be resolved without resorting to oral evidence.  If the first issue is decided in favour of the respondent then the matter comes to an end.  If the first issue is decided in favour of the applicant then this Court will consider whether to refer the matter to oral evidence in view of the alleged dispute of fact if such dispute cannot be resolved without referring it to oral evidence.

 

[6]        I now proceed to deal with the issue of urgency.  The Mandament van Spolie remedy is characterised by the following:

[6.1]     it is a possessory remedy;

[6.2]     it is an extraordinary and robust remedy; and

[6.3]     it is a speedy remedy.

 

[7]        Being a possessory remedy it decides no right of ownership.  The reason behind the practice of granting spoliation orders is that no man or woman is allowed to take the law into his own hands, and to dispossess another illicitly of possession of property.  If he or she does so, 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[1].  A Court hearing a spoliation does not concern itself with the rights of the parties whatever they may have been before the spoliation took place.  The Court will, therefore, neither enter into the lawfulness of the applicant’s possession nor into the question of ownership[2].  That one of the elements of spoliation is being a speedy remedy means that it provides summary relief and as soon as the recognised defences have been dismissed the restoration of possession should take place at once[3].  The robustness of the remedy evinces the speediness in which the remedy is granted and does not characterise that it is an automatically one of urgency[4].  As a general rule a possessor who alleges that he or she had been dispossessed of a right is obliged to act within a reasonable time to have his or her possession restored and therefore protected by the law.

 

[8]        It must also be noted that in order to prove his or her case the applicant must prove that he or she was in possession of the property and that the respondent deprived him or her of the possession forcibly or wrongfully against his or her consent[5]. 

 

[9]        In this case the applicant launched his application pretending to do so on an urgent basis on 12 November 2013.  However, in his founding affidavit the applicant herein has not made any averments as to why he seeks to have his application by way of urgency.  Rule 12(a) provides that in urgent applications the Court or a Judge may dispense with the forms and service provided for in these rules and may dispose of such matter at such time and place and in such manner and in accordance with such procedure which shall as far as practicable be in terms of these rules as to it seems meet.  In every affidavit or petition filed in support of any application under subparagraph (a) of this subrule, the applicant shall set forth explicitly the circumstances which he or she avers render the matter urgent and the reasons why he or she claims that he or she could not be afforded substantial redress at a hearing in due course. The applicant herein has not made such averments in its founding affidavit.  In my view, the provisions of Rule 12(a) of the Rules of practice in this division do not exempt the applicant from complying with the provisions of Rule 12(a) above.  I say so because subsection (ii) of the practice rule provides:

“(ii)         Details of why the applicant alleges a matter is urgent should also be set out in the founding papers.”

 

[10]      Practitioners in this division should take cognisance of the fact that the provisions of the practice Rule 12(a)(i) and (ii) do not create an exemption to them from complying with the provisions of Rule 6(12)(a) and (b).  This practice rule was never introduced to create a short cut towards obtaining a Court order by way of urgency, but to assist the Court to establish the facts which create and establish urgency of the matter without having to go through the entire founding affidavit.

 

[11]      In Sikwe v S.A. Mutual Fire and General Insurance[6] Kirk-Cohen AJ states as follows:

“In my opinion, an applicant who wishes to rely on the procedure provided for in Rule 6(12) must set out sufficient facts in the founding affidavit to enable the Court to decide whether urgent relief should be granted.  Specific averments of urgency must be made and facts upon which such averments are based must be set out in the affidavit where it is not otherwise apparent that the matter is urgent.”

 

[12]      In the present case, there are no averments in the founding affidavit which clearly and pertinently deal with the urgency of the application which is a requirements for all urgent applications.  The Court should not be expected to grope in the dark looking for the facts creating urgency.  The fact that the cause is based on the spoliation does not exempt the applicant from following the above requirements.  The Rules make provision of the procedure to be followed in all applications in that the applicant must in his or her affidavit or petition “set forth explicitly the circumstances which he avers render the matter urgent and the reasons why he claims he could not be afforded substantial redress at a hearing in due course”.

 

[13]      In Mangala vs Mangala[7] supra where at page 416 D-F Munnik J dealing with a similar situation as in casu remarked as follows:

It is true that a spoliation order is a remedy which in the nature of things should be a speedy one, but the fact that there has to be restitution before all else simply means that, once an applicant has proved that he was in peaceful possession and his possession was disturbed, the respondent must restore that position before entering into the merits of the ownership or otherwise of the subject matter.  It does not follow that, because an application is one for a spoliation order, the matter automatically becomes one of urgency.  The applicant must either comply with the Rules in the normal way or make out a case for urgency in accordance with the provision of Rule 6(12)(b).”

 

[14]      On the above ground alone there is nothing prohibiting this Court from dismissing this application.  I say so, inter alia,  because the applicant’s founding affidavit has failed to mention the grounds of urgency in his founding affidavit or anywhere in his papers and has therefore failed to comply with the provisions of Rule 6(12)(b).

 

[15]      It also follows in my view that even on the merits of the case there seems to be a genuine dispute of fact which could not be resolved without resorting to oral evidence.  This fact should have been forseen by the applicant.  This is so especially when one has regard to the nature of the relationship being husband and wife litigating over property which is kept in one place.  The same property is kept in one place, a farm which was at some stage used by both parties.  I mention the above as an additional problem facing the applicant but without suggesting that he has a good case on the merits.  It is my considered view though that the lack of averments supporting urgency of the matter is decisive of the matter and leads to the removal of the matter from the roll.

 

[16]      In the result, I make the following order:

[16.1]  The matter is hereby struck of the roll.

[16.2]  The applicant is ordered to pay costs of the application.

 

 

_________________________

P.W. TSHIKI

JUDGE OF THE HIGH COURT

Counsel for the applicant               :          Adv PE Jooste

Instructed by                                  :          Nel Mentz Inc

                                                                        c/o Jacques Du Preez Attorneys

                                                                        PORT ELIZABETH

                                                                        (Ref:  J Du Preez/tl/7666)

                                                                       

 

Counsel for the respondent           :           Adv NJ Mullins

Instructed by                                  :           BLC Attorneys

                                                                          PORT ELIZABETH

                                                                          (Ref:  LT Schoeman/mc/M33939)

 

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