IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION) CASE NO: 1438/06. 1 st Respondent

Transcription

1 IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION) CASE NO: 1438/06 In the matter between: TSHWARO MARUPING Applicant and S.M. APOLUS 1 st Respondent TSHOLOFELO MOGOROSI 2 nd Respondent APOLUS & ASSOCIATES LEGAL CONSULTANTS CC 3 rd Respondent CIVIL MATTER DATE OF HEARING : 07 DECEMBER 2006 DATE OF JUDGMENT : 25 JANUARY 2007 COUNSEL FOR THE APPLICANT : MR S.M. MONARE COUNSEL FOR THE RESPONDENTS : ADV M.G. HITGE JUDGMENT

2 HENDRICKS J: [A] Introduction: [1] On 24 October 2006 the Applicant filed, on an urgent basis, this application for a spoliation order against the Respondents. This was done after the application was duly served on all the Respondents on the same date. [2] On 26 October 2006 an interim spoliation order was granted by Landman J with the return date being 09 November On the return date the matter was postponed, presumably by consent, to the 07 th December 2006, the date of the hearing. [B] The Facts: [3] The facts of this matter can be succinctly summarised as follows: The Applicant, who is the sister in law of the Second Respondent, resides at 1281 Aurhium Street, Vryburg. This house was previously occupied by, amongst others, her sister, (the late wife of the Second Respondent), before she got married to Second Respondent. Certain goods belonging to Second Respondent s late wife remained in this house after her death. [4] On the 17 th October 2006, the Third Respondent, being a 2

3 legal consultants close corporation, represented by the First Respondent, wrote a letter to the Applicant s aunt Kehilwe Skemels. She (Kehilwe Skemels) happened to stay at the same house with the Applicant and other family members during the period of mourning the death of Second Respondent s wife. In this letter Kehilwe Skemels was, amongst others, informed that certain goods were to be attached and removed from the said house on the 23 rd October [6] Indeed on the 23 rd October 2006 the First Respondent accompanied by employees of the Second Respondent arrived at the said premises, escorted by police officers. [6] The First Respondent, who is an admitted advocate of this Court, introduced herself to the Applicant as an attorney acting on behalf of the Second Respondent. She said to the Applicant that they have come to collect the goods referred to in the letter. [7] Despite the fact that the Applicant told the First Respondent that she was not entitled to take the goods, First Respondent instructed the employees to remove the said goods and they obliged. [8] Applicant did not physically resist when the goods were loaded out of fear of being arrested. The letter wrote to Kehilwe Skemels stated categorically that should she or any 3

4 one else remove the goods to be attached and removed it would lead to arrests being made. [9] The following day, the 24 th October 2006, the Applicant consulted her attorney of record, who wrote a letter to the First Respondent demanding the return of the goods that were taken (on the 23 rd October 2006), not later than 14h00 failing which, an urgent application be launched for the return of the goods. [10] In response to the letter demanding the return of the goods, First Respondent responded in a letter under the name of the Third Respondent. Among others, it is contended in this letter that seeing that Second Respondent was the executor of the estate of his late wife, (the sister to the Applicant) he has the powers to administer the estate as he deems fit and his action to remove the goods was in accordance with the law. [11] So too, was it contended that Second Respondent had the right to sell the said property, which he did on the very same date that it was removed. Needles to say, the property were not returned, hence this application. [C] The Disputes: 4

5 [i] Spoliation and locus standi: [12] It is contended on behalf of the Respondents that the Applicant was not in peaceful, undisturbed possession of the goods, neither did she exercise control over the said property. She also has no locus standi to bring this application. [13] It is undisputed that the Applicant resided at the said house in which the property, that was removed by the Respondent, was. It is furthermore undisputed that Kehilwe Skemels, the aunt to the Applicant, only stayed temporarily at that house for the period of bereavement or mourning. [14] It is common cause that the Applicant was present at the said premises when the goods were removed by the Respondents. It is also undisputed that the Applicant told the First Respondent that she was not entitled to take the goods. It is not that the Applicant had voluntarily relinquished possession. [15] It is furthermore common cause that amongst the items that were removed was a Nokia Cellular phone, which was in possession of the Applicant. First Respondent even took this cellular phone. [16] I am satisfied that the Applicant was in peaceful undisturbed 5

6 possession of the goods. She exercised control over it and was spoliated. In my view she does have the necessary locus standi to bring this application. See: Mbangi and Others v Dobsonville City Council 1991(2) SA 330 (W). [ii] Goods sold to third parties: [17] It is very surprising to note that the goods were removed and sold the same day to three different persons. These three persons personal details are available to the Respondents and they even deposed to affidavits before the same police officer on the 06 th November 2006, stating that they bought these goods from the Second Respondent. [18] Despite being informed (per letter and service of the court documents) that the return of the goods are demanded a day after it being attached and removed, the First Respondent, as the legal representative of the Second Respondent, did not inform the buyers that the goods are the subject matter of a dispute which is before Court. [19] The Respondents seek to take refuge behind the fact that the goods were sold. In my view, this cannot be done. A party cannot take the law into his own hands and unlawfully dispossess another person of property and then hide behind 6

7 the fact that the goods were sold immediately after the dispossession to a bona fide third party. See: Vena v George Municipality 1987 (4) SA 29 (C) Ierse Trog CC v Sulra Trading CC 1997 (4) SA 131 (C). Fredericks v Stellenbosch Divisional Council 1977 (3) SA 113 (C). Malan v Dippenaar 1969 (2) SA 59 (O). [iii] Non joinder of third parties: [20] The Respondents raised in limine the fact that the three purchasers of the property are not joined as parties to this application. No relief is claimed against them. Where a party is deprived of the peaceful and undisturbed possession of goods, he/she can claim the return thereof even if it is in the hands of a third party. See: Malan v Dippenaar 1969 (2) SA 59 (O) Jivan v National Housing Commissioner 1977 (3) SA 890 (W) [21] Under the circumstances of this case, I am of the view that the claim of mandament van spolie must succeed despite the fact that the goods were allegedly sold to third parties. It is not that the identity of the purchasers is unknown or that the goods are no longer in existence. alienation of the property is very short. The period of [22] It is contended by Mr Hitge on behalf of the Respondents 7

8 that an order for the restoration of possession to the Applicant in the present circumstances will constitute the very same conduct which the Applicant now complains of. [23] With the greatest of respect, I cannot agree with this submission. Such reasoning amounts to justification of the wrongful and unlawful conduct of the Respondents. [24] The bona fide buyers of the property do have remedies available to them against the Second Respondent. Furthermore, it is not that the bona fide buyers will be spoliated out of their possession as was the case with the Applicant. It is due to the process of the law that the goods must be returned to the Applicant. [25] In my view, the spoliated property is available and the status quo ante can be restored. See: Parker v Mobil Oil of Southern Africa (Pty) Ltd 1979 (4) SA 250 (NC) 255C D: Despite generalizations that even the thief or robber is entitled to be restored to possession, I know of no instance where our Courts, which disapprove of metaphorical grubby hands, have come to the assistance of an applicant who admits that he has no right vis àvis the respondent to the possession he seeks to have restored to him ; and 8

9 Coetzee v Coetzee 1982 (1) SA 933 (C) 935D E: The cases seem to suggest that, despite lip service to the sweeping statement by Voet that even the despoiled robber will be assisted, possession will not be restored if the applicant has no vestige of a reasonable or plausible claim and the respondent conclusive proof of his ownership of the article in question. A few excellent examples of decisions in which a spoliation order has been granted against the owner and In favour of an applicant with no right to possession or a much weaker right to possession than the owner are Curatoren van Pioneer Lodge No 1 v C Champion1879 OFS 51; Greyling v Estate Pretorius 1947 (3) SA 514 (W); Fredericks v Stellenbosch Divisional Council (supra); Magadi v West Rand Administration Board 1981 (2) SA 352 (T); Naidoo v Moodley 1982 (4) SA 82 (T). [iv] Citation of the First and Second Respondents: [26] It is submitted on behalf of the First and Second Respondents that they are wrongfully cited in their personal capacities whereas they should have been cited in their official capacities. First Respondent as representative of the Third Respondent, and the Second Respondent as administrator of the estate of his late wife. 9

10 [27] The letter written by First Respondent as director of the Third Respondent dated 17 October 2006 does not mention the fact that she was acting on instructions of the Second Respondent as administrator of the estate of his late wife. It is only in the letter dated 24 October 2006 that mention is made that the Second Respondent is the executor of the estate and also the surviving spouse of the deceased. [28] It is clear that the question of the capacity of the Second Respondent is an afterthought otherwise it would have been mentioned in the letter dated 17 October The first paragraph of the letter reads: We refer to the above and wish to inform you that we are acting on instructions of Mr. Tsholofelo Mogorosi, our client herein. Clearly, no mention of any capacity is made but as a client, the Second Respondent is referred to in person. [29] Furthermore, the second paragraph states that Mr. Mogorosi (Second Respondent) was married to the late Mosepele in community of property and also states what the legal implications of such a marriage is. Again, no mention is made of his capacity as administrator or executor, but instead it is emphasised that family members of the deceased cannot inherit from her estate except Second 10

11 Respondent as the surviving spouse. [30] I find nothing wrong with the fact that the Second Respondent is cited in his personal capacity. [31] First Respondent states that she, as an admitted and practising advocate, is the director and sole member of the Third Respondent. permissible in law. It is questionable whether this is [32] I can find no fault with the fact that First Respondent is cited in her personal capacity over and above the fact that her enterprise is also cited as a party to the proceedings. [v] The actions of the First Respondent as an advocate: [33] The actions of the First Respondent as an officer of this Court leave much to be desired. It is questionable whether an advocate can act in the manner in which the First Respondent did. She admitted that she acted in the interest of her client, the Second Respondent, on his instructions. No mention is made of the intervention of an attorney. [34] She is also practising as a legal consultant at Apolus and Associates Legal Consultants CC as the sole member thereof. She furthermore wrote a letter addressed to Ms Kehilwe Skemels, the contents of the penultimate paragraph 11

12 reads thus: Further to this, kindly refrain from contacting our client directly regarding any of the abovementioned issues or any other matter not discussed in this correspondence. Please contact our client s representative, Advocate Apolus ( ), should there be any issue that you need clarity on. [35] According to this letter she is also the director of Apolus and Associates Legal Consultants CC. [36] In this letter she mentions that the goods will be attached and removed and she personally, accompanied by the police, instructs the employees of her client (Second Respondent) to remove the goods, whilst she herself was also present. [37] It is clear from the abovementioned that the First Respondent, whilst being admitted as an advocate, is performing the duties of an attorney and a sheriff. See: General Council of the Bar of SA v Van der Spuy 1999 (1) SA 577 (T) De Freitas v Society of Advocates of Natal 2001 (3) SA 750 (SCA). I am of the view that this matter needs to be reported to the Society of Advocates to investigate the behaviour of the First Respondent. 12

13 [D] Conclusion: [38] In my view, the Applicant succeeded in proving that she was spoliated and she is entitled to an order confirming the rule nisi issued on the 26 th October Furthermore, that the Society of Advocates should investigate the conduct of First Respondent as an advocate. Consequently the following order is made: [1] Paragraphs 1 and 2 of the rule nisi issued on 26 th October 2006 are confirmed. [2] First and Second Respondents are ordered to pay the costs of this application jointly and severally, the one paying the other to be absolved. [3] A copy of this judgment must be handed to the Chairman of the local Society of Advocates (North West Bar) to investigate the conduct of the First Respondent as an advocate. 13

14 R D HENDRICKS JUDGE OF THE HIGH COURT ATTORNEYS FOR THE APPLICANT: S E Monare & Partners. 14