HIGH
COURT OF SWAZILAND
CIVIL
CASE NO. 1065/95
In
the matter between:
SIZA
PLANT HIRE (PTY) LTD PLAINTIFF
VS
RECLAMATION
GROUP (PTY) LTD DEFENDANT
CORAM
MATSEBULA J
FOR
PLAINTIFF MR. NKOSI
FOR
DEFENDANT MR. MADAU
RULING
OF AN EXCEPTION IN TERMS OF RULE 23(2)
2nd
JULY 2004
Plaintiff
issued summons against the defendant claiming the following:
Payment
of an amount of E200.000-00 (two hundred thousand Emalangeni);
Interest
thereon at the rate 9% per annum a tempore morae;
Costs
of suit;
Further
and/or alternative relief.
The
action arises out of paragraph 4 - 5.3
4.
During on or about June 2003 the said bulldozer which was at the time
hired to Inyatsi Superfos, broke down at
2
Mehlwabovu
along the public road where it remained parked, pending repairs.
5.
During on or about August 2003 the defendant's employees being
Bernard Dlamini, Jabulane Nkambule and Mkhulisi Dlamini, who at all
times material were acting within the scope and cause of their
employment with the defendant, and using cutting torches, cut up the
vehicle into pieces and disposed of the vehicle,
5.1
The defendant's acting of cutting up the vehicle and disposing
thereof was unlawful in that defendant acted without any authority
from the plaintiff.
5.2
As a consequence the plaintiff has suffered damages in the amount of
E200.000-00 (two hundred thousand Emalangeni) value of the vehicle at
the time that defendant unlawfully possessed the vehicle.
5.3
The plaintiff has demanded to defendant that amount of E200.000-00
(two hundred thousand Emalangeni) which amount despite demand the
defendant refuses to pay.
On
the 12th May 2004 defendant entered its intention to defend and on
the 22nd June 2004 plaintiff filed notice of bar. This was not dealt
with by the defendant but instead it filed the notice in terms of
Rule 33(2) Notice of Exception. The matter served before on the 25th
of June 2004 and the respective counsel argued the matter of the
exception.
Mr.
Madau who appeared for the defendant and Mr. Nkosi appeared for the
plaintiff. Mr. Madau's submission was that since the max has already
been disposed of by the defendant's bulldozer and was no longer in
existence plaintiff's action being a dilatory one instituted as
3
an
alternative to rei vindicatio. The plaintiff's action should fail on
that basis. This, Mr. Madau argued is because in such an action as
used by the plaintiff it is important and a must that plaintiff
alleges the following:
it
is the owner of the property;
the
defendant was in possession of the plaintiff's property;
when
defendant lost possession of the plaintiff's marx it has knowledge
of the plaintiff's ownership;
Mr.
Madau referred the court to VULCAN RUBBER WORKS (PTY) LTD VS SAR &
H 1958(3) SA 285 (A). Mr. Madau further argued that it was
insufficient for the plaintiff to allege that defendant should have
known of the plaintiff's ownership if it is pursuing its right under
the rei vindicatio. It is Mr. Madau's argument that plaintiff has
failed to make the necessary averments aforesaid and as such his
particulars of claim are defective.
Mr.
Nkosi on the other hand argued that the plaintiff's action was based
not on rei vindicatio but in fact on condictio furtive. Mr. Nkosi
referred the court to its particulars of claim. Mr. Nkosi also
referred the court to the MINISTER VAN VERDEDIGING V. VAN WYK EN
ANDERE 1976(1) SA 397 and to ACQUISITION AND PROTECTION OF OWNERSHIP
BY CAREY MILLER JUTA 1986 at pages 331-332.
In
terms of an action based on condiction furtive which is a personal
action, the plaintiff can sue the defendant for payment for damages.
If, plaintiff, has suffered as a result of theft committed by the
defendant or employees of the defendant, in terms of this action
defendant is obliged to pay the plaintiff the highest value of the
property since the commission of the theft. The action also covers
the use of and cause of damage to the property. Plaintiff can also
sue the
4
thief
or is as although the thief may not be in possession of the stolen
property any longer.
I
have considered the arguments advanced by both counsel and I am of
the view that the exception is ill conceived. It follows that it must
be dismissed with costs.
Mr.
Nkosi has asked the court to order the costs on attorney and own
client scale. He argued that this, the court should do in order to
show its displeasure in that defendant embarked on a cause which is
clearly dilatory in nature and which therefore amounts to an abuse of
the court's process. The court is of the view that only on very
exceptional case does a court order punitive costs. The court is of
the view that this is not one of those. Accordingly the costs will be
on party and party scale.
J.M.
MATSEBULA.
Judge
