SWAZILAND
HIGH COURT
Jones
General Suppliers (Pty) Ltd
Plaintiff
Mocambique
Hotel and Restaurant (Pty) Ltd
Defendant
Civ.
Case No. 2150/99
Coram
SAPIRE, CJ
For
Plaintiff S.C. Simelane
For
Defendant L. Khumalo
JUDGMENT
(04/07/2000)
The
plaintiff says in its particulars of claim that during 1995 and at
Manzini represented by Thembisa Matsebula entered into a written
agreement of lease in terms of which the defendant let to the
plaintiff a shop at the premises at the address given. In terms of
the lease agreement, the rental was to payable monthly. In the event,
the rental was not paid on due date or remained unpaid for 14 days
the defendant was entitled to cancel the lease forthwith and retake
possession of the premises. The plaintiff agreed to these conditions
and took occupation.
The
plaintiff fell into arrears and the defendant ejected the plaintiff
by locking it out of the premises and taking into its possession the
fittings, stock, books of accounts and furniture in the premises the
value of which is E73 500. All this without an order of court.
It
is alleged that defendant as land lord did not institute any eviction
proceedings. The plaintiff claims in the premises that defendant is
truly and
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lawfully
indebted to the plaintiff in the sum of E73 000.00 which amount is
said to be due and owing.
The
plaintiffs cause of action is essentially that the defendant has
taken possession of and remained in possession of the plaintiffs
goods. It is a species of "wrongful holding over."
The
provisions of the lease are irrelevant. On the other hand, a purchase
of the goods cannot be forced upon the defendant. The plaintiff has
not asked for return of its goods, which prima facie is the relief to
which the plaintiff may be entitled. The plaintiff has not alleged
that the defendant has refused to hand the goods, or that he has
incapacitated himself from doing so.
The
history and present application of the actio ad exhibendum and the
actio re vindicatio are described in Law of South Africa Vol 27 as
follows.
In
Roman law the actio ad exhibendum was usually instituted in
conjunction with the rei vindicatio to compel the possessor of a
thing which was to be vindicated to produce it. If the defendant
produced the thing, the rei vindicatio was proceeded with. If he did
not produce the thing he was ordered to compensate the plaintiff for
its value. In addition, this action could be brought against a
defendant who had fraudulently ceased to possess the thing to recover
its value. In this sphere the rei vindicatio and the actio ad
exhibendum overlapped. In Roman-Dutch law the actio ad exhibendum was
regarded as an action for compensation which could be instituted
against a thief or any other mala fide possessor who had fraudulently
alienated, consumed or destroyed the thing. Voet based this action on
the fraud of the mala fide possessor and laid down that the measure
of compensation to be paid had to be equal to the value of the thing.
In South African law the actio ad exhibendum has been accepted as a
general action against a mala fide possessor. It is not only
available against a mala fide possessor who has alienated, consumed
or intentionally destroyed the thing but also against any possessor
who has treated the thing in the above manner after he has become
aware of the title of the owner. Mala fides has been held to be the
very basis of liability under the actio ad exhibendum; it must
consequently be alleged and proved by the plaintiff. Whether mere
awareness by the defendant of his own tainted title suffices or
whether he must have been aware of the plaintiff's claim to the
property at the time of parting with his possession is unclear.
The
courts do not distinguish clearly between the fields of application
of the rei vindicatio and the actio ad exhibendum. This confusion can
be traced back to Voet where the rei vindicatio instead of the actio
ad exhibendum was granted where a possessor had fraudulently
alienated a thing after he had become aware of the owner's title.
Strictly speaking, the rei vindicatio as a reipersecutory action
should only be applied where the thing still exists and is in the
possession of the defendant. If the thing has been alienated,
destroyed
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or
consumed, the actio ad exhibendum should be applicable. Because of
the close connection of the two actions the actio ad exhibendum is
sometimes employed erroneously to claim restoration of the thing or
its value. The actio ad exhibendum should rather be treated as a true
delictual action aimed at compensating the plaintiff for patrimonial
loss. The amount of compensation should be calculated in accordance
with the value of the thing at the moment the delict was committed,
that is, at the moment when the thing was consumed, destroyed or
alienated.
If a
mala fide possessor has alienated a thing, the owner can institute
the rei vindicatio against the possessor and an actio ad exhibendum
against the lienor. The rei vindicatio need not necessarily be
instituted first in such circumstances. In cases where it is
difficult to trace the thing the actio ad exhibendum will normally be
preferred. Once this action is instituted the owner is not permitted
to proceed with a rei vindicatio against the possessor.
The
interaction of the re vindicatio and the actio ad exhibendum have
recently been discussed in
Unimark
Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd 1999 (2) SA
986 (T)
In
the absence of an allegation that the items claimed are irrecoverable
or that the defendant will no or cannot return them no action for
damages representing the market value of the items can be maintained.
The summons therefore lacks averments necessary to maintain a cause
of action.
The
exception is accordingly upheld and the plaintiff afforded an
opportunity of 7 days within which to lodge amended particulars of
claim failing which the action will be deemed to have been dismissed
with costs.
The
plaintiff must pay the costs of the exception.
Sapire,
CJ
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