Kolobe v Hoohlo (CIV/APN/10/04)

Case No: 
CIV/APN/10/04
Media Neutral Citation: 
[2004] LSHC 23
Judgment Date: 
10 February, 2004

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CIV/APN/10/04

IN THE HIGH COURT OF LESOTHO


In the matter between:


LEBALA KOLOBE APPLICANT

(Mainozwandile Hoohlo)

AND

FUTHO HOOHLO RESPONDENT


REASONS FOR JUDGMENT


Delivered by the Honourable Mr. Justice WCM Maqutu on the 10th February, 2004


INTRODUCTION


  1. This is an urgent application for mandament van spolie. It was heard as an urgent application and determined expeditiously. Application was granted with costs and the rule nisi confirmed accordingly. I promised to file reasons later.


UNDISPUTED FACTS


  1. Applicant and respondent were husband and wife who had divorced less than a year ago. They had been married in community of property. The issue of forfeiture of the benefits of the marriage or the division of the joint estate of their marriage has not been finalised. I am advised, and both parties agree - it is a subject of negotiations.

  2. The car that is the subject of this application was bought on hire purchase for the applicant. Monthly payments fell into arrears while the divorce was pending. Consequently in June 2003 the car was repossessed by Court Order of the Magistrate Court of Butha-Buthe.

  3. About two months after the car had been repossessed applicant and Respondent had divorced and ceased to be husband and wife. Four months later respondent found the car that had been repossessed near Lancers Inn in Maseru and took it. Respondent does not deny the car was in the possession of applicant. Respondent in fact has annexed a letter annexure "B" that shows how he had come to know that the car was in applicant's possession.


ESSENTIALS OF THE REMEDY OF MANDAMENT VAN SPOLIE


  1. When a litigant brings a spoliation application, he or she is asking for restoration of the property taken from him or her before everything else - omnia ante. His or her basis of the application is that he or she was in peaceful possession of that property when it was taken from


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him or her. Consequently the right of ownership of that property is not a defence for the person who has dispossessed another. The reason being that the owner should seek redress from the courts for the return of his or her property - and not help himself or herself to that property.


  1. In Coetzee v Coetzee 1982 (1) SA 933 the Court was dealing with the case of a husband who had bought, paid for a vehicle and allowed his wife to use it. After they had separated the husband asked the wife to return it - she refused as divorce proceedings were being settled. The husband who had been told by the wife that the car was missing from the parking lot, looked for it and found it in the parking lot. At the suggestions of the police the husband took it and stored it and would not release it to the wife. Van den Heever J at page 935 F to H dealing with a spoliation application brought by the wife said:


"The court does not at this stage 'look too clearly into the juridical nature of the possession claimed'. The police intervention could not confer on him the right to remove the car without her consent or a Court Order. And he himself says she erred in having thought the car was stolen .. .under the circumstances I am compelled reluctantly to confirm the rule as regards restoration of possession to her".


  1. Mofokeng J in P. M. Khororo v T. Fiee & another 1982 - 84 LLR 215 at page 220 observed:


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"What the remedy protects is possession and not ownership. (Nqojane v Lephoto & others (1) LLR 51 at 57). The raison d 'etre for the remedy is to prevent persons, including the true owner, from taking the law into his own hands. It is a unique remedy - available even against the true owner in favour of a thief.


RESPONDENTS DEFENCE.


  1. Respondent says the car belongs to the joint estate of the former marriage that was between him and applicant. By law respondent was the administrator of that estate. What respondent says he has done was to take the car into his possession - where it should be. hi other words respondent claims to have done his marital duty of gathering the car like any other property of the joint estate - wherever it might be pending division of the joint estate.

  2. Respondent argues further that respondent and repossessor of the car -who later gave the car to applicant - were acting in collusion in order to defraud respondent. In other words the repossession proceedings and the Court Order of the Magistrate Court Butha-Buthe in terms of which the car was taken from respondents control were a form of dispossession.


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COUNTER-SPOLIATION APPLICATION


  1. It is unfortunate for respondent that he embarked on self-help in respect of the vehicle that had been repossessed by the legal owner through court proceedings. Annexure "B" to his Answering Affidavit disclosed that on the alleged advice of her attorneys applicant induced Imperial Insurance Company - the legal owners to repossess the said vehicle. Applicant denies being the author of the said letter. That, notwithstanding (if respondent believed he had evidence for such a conclusion) respondent should have taken appropriate legal action. What respondent has done has been self-help by making himself judge and the deputy sheriff to execute his own judgment in his own case. Courts will never countenance such conduct.

  2. Respondent in this case alleges spoliation where the repossession of his car was by Court Order and has brought a counter spoliation application. As Blackwell J put it in Makhubedu & another V Ebrahim 1947 (3) SA 155 at page 168.


"In the present case the act which deprived appellants of their possession was a legal action, as respondent had a judgment in her favour, and therefrom no question of actual spoliation arises,..."In other words a lawful execution of a judgment of a court can never be a wrongful act - consequently it cannot be spoliation. What is

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taken by a messenger of Court or a Deputy Sheriff pursuant to a Court Order can never be spoliation.


  1. Because of respondent's action of bypassing the courts, the merits of his counter-application cannot be gone into. That might not be the end of the matter if respondent wishes to act according to the law -the remedy of mandament van spolie only requires respondent first to restore the said vehicle and later take whatever legal action is open to him before the Courts. To put my ruling in the words of Schoeman in the Law of Property 2nd Edition_ page 135 - dealing with spoliation applications:


"In such proceedings the court will refuse to consider any claim by the spoliator that he has a better title to the possessor of the thing in question".


At page 139 the learned author continues:


"A counter application by a respondent, for example for a declaratory order as to his rights to the spoliated thing is not permissible in spoliation proceedings".


LEGAL MERITS OF THE CASES OF APPLICANT AND RESPONDENT


  1. "In the final analysis the protection of possession is part and parcel of the protection of the peace of the community, which could not be maintained if every person who asserts that he has a real right to a


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particular thing which is in another person's possession would be entitled to resort to self-help". Schoeman The Law of Property 2nd Edition_page 135.


  1. The respondent's argument that the car was illegally removed from his possession by a Court Order of the Magistrate Court of Butha-Buthe cannot have substance unless that Court Order has been set aside. Even if that were so the respondent could not just grab the car where ever he found it. See Makhubedu & another v Ebrahim 1947 (3) SA 155 where appellant first set-aside an order that had ejected him from the premises by appealing out of time. When respondent in that case refused to restore possession of the premises - appellant approached the courts to put him back into possession. In this case that Magistrate's Court Order still stands, consequently the car was lawfully repossessed from respondent. In Dawood v Robb & Co. 1933 CPD 178 the Court held that the hire-purchase seller committed spoliation when he refused to return the hire-purchaser's car because he was in arrears with his monthly installments.

  2. On the facts before me - respondent knew when he seized the car that applicant had obtained it from Imperial Insurance Company, the lawful owner of the car. Consequently applicant was in peaceful possession of the car - when respondent dispossessed her of the car.

  3. It follows therefore that the merits of respondent's argument of possible collusion between the repossessor of the car and applicant cannot be raised in this spoliation application. Such an allegation can


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be made and proved in appropriate proceedings - which respondent might bring (if he so desires) after restoring possession of the said vehicle to applicant omnia ante. Respondent must first purge his self-help and then bring legal proceedings in an appropriate court before he can be heard on the merits of his allegations.


ORDER


  1. The rule nisi was confirmed (and application granted) with costs -respondent was ordered omnia ante to return the vehicle to her.


W.C.M.MAQUTU

JUDGE


For applicant : Adv. Z. Mda

Messrs. B. Sooknanan &. Ass.


For Respondent : Messrs. J.P.L. Snyman


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