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

2. 
   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.

   
   

3. 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.

   
   

4. 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

5. 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.

6. 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".

7. 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.

8. 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.

   
   

9. 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

10. 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.

    
    

11. 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.

12. 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

13. "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.

14. 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.

    
    

15. 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.

    
    

16. 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

17. 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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