SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, PRETORIA

(1)	NOT REPORTABLE
(2)	NOT OF INTEREST TO OTHER JUDGES

CASE NO: 20136/2018
29/3/2018

ln the matter between:

PUMULANI PLANT AND EQUIPMENT (PTY) LTD			Applicant

And

EXPRESS INDUSTRIAL TRUCK
BODY BUILDERS CC							Respondent

JUDGMENT
MIA, AJ
[1]	The applicant is a company duly registered and incorporated in terms the company laws of South Africa. It is the registered owner of a Hino Super F truck (the truck) with registration number [….]. The respondent is a close corporation duly registered in terms of the Close Corporations Act 69 of 1984. The respondent provides goods and services to the applicant from time to time. The applicant brought an urgent application to this court for the return of the truck with costs. The application is opposed by the respondent as it is disputed that the applicant was in possession of the truck prior to the vehicle being brought in for repairs to the respondent.
[2]	The applicant indicated in its founding affidavit that the truck was being rented out to Tseleng Road Construction and Projects (Pty) Ltd (Tseleng) . The truck was required by Tseleng to fulfil its obligations as a subcontractor on a Shell Filling Station Project. Further the applicant in addressing the question of urgency states the following:
"1.

As referred to above, the vehicle is being leased to Tseleng, Tseleng has been appointed as a subcontractor for the construction of a Shell Filling Station at Kroondal.
2.

Tseleng is bound by certain time limits and programs and should they not comply to such programme, penalties will be imposed.
3.

I am aware of the fact that Tseleng does not have any other option or any other vehicle to use for this specific project.
4.

I am aware of the fact that should the said vehicle not be released to Tseleng within the next few days, the subcontract agreement will be cancelled and they will then suffer irreparable damage. They will then have to institute action and claim against the Applicant for their loss and damages."

[3]	In the event that Tseleng were in possession of the truck and were in danger of losing the contract, it would seem that they would rush to court to restore their possession. The driver of the truck at the time it went in for repairs was a driver employed by Tseleng, Mr Manemela. Whilst Mr Manemela attests that he was tricked by Mr Van Rensburg the owner of the respondent into returning the vehicle to the respondent for repairs, he nevertheless returned the vehicle on behalf of Tseleng and not on behalf of the applicant.
[4]	The issue of physical possession is the first issue raised by the respondent in its opposing papers. The respondent points out that the applicant's version is that the vehicle was in the possession of Tseleng. Mr Van Rensburg knew Mr Manemela and indicates that the nature of their relationship was that the drivers often informed him of problems with the trucks before the owner gave the instruction for the repair. Mr Manemela visited the premises on 3 March 2018 complaining of the brakes. He informed Mr Manemela he would contact him when he was available to attend to the problem. He called Mr Manemela on 7 March 2018 when he was available. He points out further that as the owner of the vehicle the applicant had the re vindicatio available to him for the return of the vehicle but knew that same would not succeed in view of the improvement lien the respondent had for the crane which had been affixed to the truck.
[5]	In response to the above the Mr Botha, the director of the applicant places before this court in a replying affidavit a version that the truck did not remain on site at Kroondal unless required for subcontract works. He informed Mr Manemela to return the truck to the applicant's yard in Pretoria until it was required the following week. Mr Manemela resided on the respondent's premises. The applicant's driver was in Pretoria and it made sense for Mr Manemela to drive the truck back to Pretoria.The applicant's driver was at the yard and the truck was required for various work to be done in and around the yard in Pretoria.
[6]	Mr Botha further denies the practice existed that repairs were effected without prior instructions or an order given. He also denies knowledge of the complaint made by Mr Manemela to Mr Van Rensburg . He submits further that his own technician would have attended to the brakes. Mr Manemela indicates in the founding affidavit that he was lured however there is no reply from Mr Manemela who Mr Van Rensburg had the conversation with to indicate that no such conversation occurred. That he did not take the vehicle in on 3 March 2018 as suggested by Mr Van Rensburg. It is also the first time Mr Botha raises the factual possession in the replying affidavit after having indicated that Tseleng required the truck within the next few days to fulfil their obligations on the contract.
[7]	In Nino Bonino v De Lange 1906 TS 120 at 122 the Court per the Chief Justice stated:

"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 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"'

[8]	In Jivan v National Housing Commission 1977 (4) All SA156 (W), the Court per Steyn J, stated at 162:
"A spoliation order against a party other than the spoliator is logically beyond the scope of the purpose of the mandament to prevent persons from taking the law into their own hands."

[9]	In the present matter it is evident that Mr Manemela, the driver of Tseleng was in possession of the truck when it went was driven to the respondent. Thus I hold the view that the property in question is, and was, in the peaceful possession of Tseleng, a third party at the time prior to the launching of this application, and excludes the possibility of granting a spoliation order to the applicant against respondent.
[10]	In view of the findings on the applicable law and facts of this case, the applicant has not made out a case and the application is refused with costs.

ORDER
[11]	For the above reasons the following order is made
1.	The application is dismissed with costs.

S C MIA
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

Appearances:
On behalf of the applicant		:	Adv A Botha
Instructed by 			:	O J Botha Attorneys

On behalf of the Adv V Malherbe
Instructed by Van Heerden & Krugel Attorneys

Date of hearing 27 March 2018
Date of judgment29 March 2018