IN THE HIGH COURT OF SWAZILAND
JUDGMENT
CASE NO: 507/18
In the matter between:
NTOMBI MARY SMITH APPLICANT
And
SIPHO MKHABELA 1ST RESPONDENT
CARSON AUTO (PTY) LTD 2ND RESPONDENT
THE COMMISSIONER OF POLICE 3RD RESPONDENT
THE ATTORNEY GENERAL 4TH RESPONDENT
Neutral Citation: Ntombi Mary Smith vs. Sipho Mkhabela and 3 others (508/18) [2018] SZHC (95)
Coram: MLANGENI J.
Heard: 4th May 2018
Delivered: 16th May 2018
Flynote: Law of property – spoliation application – Applicant’s averments in support of ownership rather than possession, the latter being an essential requirement for the remedy of spoliation.
Dispute of fact regarding ownership of one of the disputed assets. In view of the extremely disconcerting facts of the matter, court reluctant to dismiss the application solely on the basis that the Applicant’s papers are bad.
Oral evidence ordered to prove ownership of the motor vehicle.
Summary: In a manner reminiscent of a soapie, a widow found new love and spent with him all the money she had received as death benefit for her late husband. The money was used to purchase an expensive motor vehicle, a tractor with accessories, household furniture and cattle – all within a period of about two months.
He married her through Swazi Law and Custom. Conflict occurred and the parties went separate ways. She instituted spoliation proceedings to get various assets from him and he vigorously opposed the application, mainly on the basis that it did not meet the legal requirements for spoliation.
Held: Although the application did not meet the legal requirements for a spoliation order, the facts of the matter cry out for intervention by the court.
Held, further, that there is a dispute of fact regarding ownership of one of the assets, and that oral evidence is required to prove ownership.
Costs reserved until conclusion of the matter.
[1] The facts of this matter are so sad that they would have made the heart of Adolf Hitler bleed. It is litigation that pits a litigant who has no brain against one who has no heart.
[2] The Applicant’s husband died some time in 2016. On the 9th December of the same year she received an amount of E674, 188-15, being death benefits in respect of her late husband. On the same year, 2016, she found new love and, according to her papers in December 2016 she got married to First Respondent through Swazi Law and Custom[1]. And the money started flowing, like a river. On the 12th December 2016, two days after receiving the payout, she purchased a trendy motor vehicle described as a Ford Ranger, for the cash price of E350, 000-00. On the same date an amount of E45, 000-00 was withdrawn from her account and used to purchase eleven head of cattle. On the 16th January 2017 an amount of E100, 000-00 was withdrawn and used to purchase a tractor with a trailer and plough. Three days later, on the 19th January 2017, an amount of E64, 799.70 was paid to Bradlows Furnishers, Manzini, for the acquisition of new furniture. A record of the Applicant’s banking account shows numerous cash withdrawals in tens of thousands of Emalangeni, in quick succession. So active was the banking account that on the 17th February 2017 the closing balance was a meagre E1, 381-66. The sum of E674, 000-00 was all spent in just over two months.
[3] The irrational and frenetic expenditure and acquisition of assets appears to have been masterminded by the Applicant’s new Romeo, the First Respondent. So much for love! It turned out that the First Respondent was in a civil rites marriage with another woman, and if this is indeed correct the marriage with the Applicant would be nothing but a sham.
[4] The Applicant, now re-married to the First Respondent, also ferried a large number of concrete blocks from her residence at eZulwini to the First Respondent’s home at Kutsimuleni Area, Manzini Region, the intention being to build her a marital residence there.
[5] Like all things that have no solid foundation, the inevitable happened. Love, if there ever was love between the two, deserted them as quickly as it had found them. Personal differences escalated into perennial friction and the parties became irreconcilable. It is apparent that the lubricant of the relationship was finished. It is a situation that conjures the image of a dairy cow. When it has released all the milk it is then released. The Applicant left the First Respondent and went back to her home at eZulwini, without the goods that she now claims.
[6] On the 1st April 2018 she instituted an urgent application against the First Respondent (her putative husband) and three others, the Second Respondent being the motor vehicle dealership from which the Ford Ranger was purchased. The Applicant’s prayers are as follows:-
“1. Dispensing with the normal forms of service and time limits provided by the Rules of this Honourable Court and hearing this matter urgently.
2. Directing the First and 2nd Respondents to restore possession to the Applicant of the following items forthwith: –
a) Ford Ranger A x 4 (sic) valued at E350, 000-00.
b) Furniture purchased from Bradlows valued at E64, 799-70.
c) Tractor together with a trailer and plough valued at E100, 000-00.
d) Concrete blocks valued at E15, 000-00.
e) Head of Cattle valued at E45, 000-00.
3. Authorising the Third Respondent to assist in the execution of the orders of this Honourable Court and to maintain law and order/peace during the recovery of the items mentioned above.
4. That a rule nisi be issued in terms of prayers 1, 2 and 3 above with full interim effect returnable on the date to be determined by this Honourable Court or in alternative 20th April 2018.
5. That a spoliation order be issued in terms of prayers 1, 2 and 3 above with full interim effect returnable on the date to be determined by this Honourable Court or in alternative 20th April 2018 and pending the finalization of this matter.
6. Costs of the application against First and Second Respondent at attorney and client scale.
7. Such further and or alternative relief as this court may deem expedient and necessary on the circumstances of this case”.
[7] It is strange that a rule nisi is sought even in respect of prayer 1 on urgency. In other words, the Applicant wants the Respondents to show cause at a later date why the application should not be enrolled as an urgent one. This is a clear sign that some attorneys do not always reflect carefully upon the objective to be achieved by prayers, a situation I will lament about so long as it persists in our jurisdiction.
[8] The Applicant’s application is one of spoliation. Spoliation is a remedy that seeks to restore possession forthwith[2], without going into an enquiry on the merits of the matter[3]. It is a drastic remedy whose main objective is to discourage self-help[4]. When the spoliator strikes, the possessor must be in peaceful and undisturbed possession[5].
[9] For purposes of a spoliation application the Applicant’s papers are bad, very bad. Predominantly, her averments assert ownership rather than possession. In respect of the motor vehicle she avers at paragraph 9 of her founding affidavit that she personally signed the contract of sale “as the purchaser and owner of the car.” In respect of the tractor she avers at paragraph 12 of her founding affidavit that she purchased the tractor “for myself”. In the same paragraph she later makes this allegation –
“I verily believe that Applicant is a lawful owner of these properties.”
At paragraph 13 she alleges, in respect of the furniture, as follows:-
“I also confirm that I am the lawful owner of this furniture which is illegally locked by 1st Respondent at our purported place of the dissolved bigamous marriage”.
[10] I proceed, needlessly, to quote from paragraph 22 of the Applicant’s founding affidavit.
“I verily believe that I am the lawful owner of all the above property and 1st Respondent did not spend any cent as a source of funding in the purchase of the above property. I verily believe I hold the lawful title to these properties to obtain a restoration order…..”.
[11] Clearly, the drafter of the Applicant’s papers did not appreciate the difference between spoliation and vindication. Never mind the fact that apart from the motor vehicle the other assets are not adequately described and an order in respect of them would be difficult or impossible to implement. The furniture from Bradlows is not specified, the eleven head of cattle are not described and the tractor is only described as a Ford – no colour, no engine number, nothing.
[12] In its opposing papers the First Respondent raised the following points of law:-
12.1 The urgency is self-created.
12.2 The papers do not establish grounds of spoliation.
12.3 The matter is governed by Swazi Law and Custom.
12.4 There are disputes of fact.
[13] By the time the matter was argued before me on the 4th May 2018 the issue of urgency had clearly been overtaken by events in that both sides had filed what they intended to file, including supplementary affidavits and heads of argument. Moreover, I had made interim orders, one of which was that the motor vehicle was to be handed over to a deputy sheriff for safe-keeping pending finalization of the matter.
[14] The point of law that the matter is governed by Swazi Law and Custom was not pursued at the hearing. It would, in any event, not succeed. In matters of spoliation the simple question for determination is whether or not the Applicant was in possession and if the possession was unlawfully taken, period. In my view the marital regime of the parties cannot stand in the way of a determination of this question of fact by this court.
[15] The First Respondent made the most of the point that the Applicant failed to establish the legal basis for the spoliation order, mainly in that she hardly attempted to establish possession. Earlier on I mentioned and demonstrated that in her papers the Applicant went on and on about ownership rather than possession. There is no doubt that this is a glaring defect on the Applicant’s case, and if the First Respondent did not respond on the merits my hands could well have been tied to dismiss the application without ado.
[16] On the totality of the disconcerting facts before me I am unable to dismiss the application at this stage. To do so would be abandoning my responsibility to do justice between man and man. This is particularly so on the basis of the First Respondent’s objectively improbable claim that the Applicant “bought the vehicle for me as a gift”.[6] The first Respondent wants the court to believe that this widow was so smitten that she spent more than half of the meagre proceeds of her husband’s death on a gift to him. The Applicant did not reply, hence the allegation of a gift is not specifically gainsaid. But it does, on the peculiar facts of this case, border on fantasy. I am not going to overlook the polarized position of the two protagonists regarding the status of the motor vehicle. The Applicant, in her founding papers, repeatedly asserts that she is the owner; the First Respondent also repeatedly asserts that he is the owner per gift. With or without a reply, this does stand out as a dispute of fact and the First Respondent, in his papers, has recognized that there is a dispute of fact in the matter.
[17] It is said that the law has no eyes, but it certainly must have astuteness for fairness and justice. It is for that reason that I am extremely diffident to dismiss the application only on the basis that the Applicant’s papers are badly drawn. Although dismissal would not necessarily bring total finis to the matter, I cannot ignore the financial implication of starting new court process de novo.
[18] There is one other relevant consideration. During legal arguments on the matter I was informed that the First Respondent has since disposed of the tractor as well as the head of cattle. I was not told what happened to the proceeds, but I got the clear impression that it is only the First Respondent who knows what happened to the proceeds. Given that the motor vehicle is registered in his name, and it is a highly marketable commodity, there is nothing that can stop him from selling it to a bona fide purchaser, thereby bringing more complexity in the matter.
[19] I have therefore come to the conclusion that the Applicant and the Respondent should give oral evidence in respect of the ownership of the motor vehicle described as a Ford Ranger with registration particulars FSD 803 BH.
[20] In respect of the cement blocks Mr. Mnisi for the First Respondent informed me that his client consents to the release of the blocks to the Applicant. I accordingly order that the First Respondent should release the said blocks to the Applicant forthwith.
[21] The furniture from Bradlows is not adequately described in the Applicant’s papers. It is therefore not readily identifiable, hence I cannot make any order in respect thereof.
[22] Costs are reserved until conclusion of the matter.
[23] The Ford Ranger motor vehicle is to remain with the Deputy Sheriff until the matter is finalized.
[24] The oral evidence is to be heard without undue delay in order to minimize storage costs in respect of the said motor vehicle.
__________________________
MLANGENI J.
For the Applicant: Mr. L.N. Dlamini
For the 1st and 2nd Respondents: Mr. S. Mnisi
[1] See paragraph 2 of the Applicant’s founding Affidavit.
[2] See Wille’s Principles of South African Law, 8th Ed, p267.
[3] Silberberg and Schoeman’s The Law of Property, 4th Ed , p269.
[4] The Gables (Pty) Ltd v Armilda Laidas t/a Just Kids (212/17) [SZHC] 144 at para 3.
[5] Busisiwe Makhanya v Absalom Makhanya, Civil Case No. 1430/2004.
[6] At paragraphs 9 and 12 of the Answering Affidavit.
