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IN
THE HIGH COURT OF SWAZILAND
CIV.
CASE NO. 642/2000
In
the matter between
PITI
PETROS DLAMINI APPLICANT
And
THE
COMMISSIONER OF POLICE 1st RESPONDENT
THE
ATTORNEY GENERAL 2nd RESPONDENT
Coram
S.B. MAPHALALA - J
For
Applicant MR. MDLADLA
For
1st and 2nd Respondent MR. FAKUDZE
JUDGMENT
(28/03/00)
Maphalala
J:
These
are spoliation proceedings ante omnia. The applicant filed an urgent
application for an order inter alia that he be restored to the
possession of property being the remainder of Farm 659 Portion 4.
Costs of this application and further/and or alternative relief. The
applicant filed a founding affidavit to support his case. The
application is opposed by the respondents who filed an answering
affidavit and in turn the applicant filed his reply thereto.
The
applicant's case is that on the 1st March 2000, at approximately
5.00am he was sleeping in his house together with his wife at the
property described in the notice of motion. Whilst sleeping he was
woken up by a loud knock at the door. When he opened the door he
discovered that it was a police officer only known to him as a
Maseko, whom he believed is stationed at Manzini Police Station. The
said Maseko was accompanied by a certain Mr. Bhembe, who advised him
that he was the Station Commander of Malkerns Police Station. They
ordered to move all his belongings to Motshane. Mr. Maseko asked him
where he kept his money and he advised him that the money was
outside. He ordered him to go and fetch the money. When he made an
effort to do so he was handcuffed as he said applicant wanted to run
away. He remained handcuffed from approximately 5.30am to about
6.45am. His wife was also handcuffed. The police officers started to
load his belongings into big trucks. When
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he
enquired from Mr. Maseko if they had any document, which empowered
them to remove him from the property Mr. Maseko advised him that they
did not have such a document and that the same was not necessary. He
advised him that they had received an instruction from the
Commissioner of Police to come and remove him from the property.
Some
of his personal belongings and livestock were left behind as they
were loaded into a truck and dumped at Motshane.
Applicant
submitted in his founding affidavit that at all material times
thereto since 1986 he has been in peaceful and undisturbed possession
of the property. That the conduct of the respondent amounts to a
spoliation in that he was unlawfully and intentionally forcefully
removed from the property without his consent.
The
applicant's affidavit is confirmed by that of his wife Phumzile
Dlamini (nee Zwane) that the allegation contained in the founding
affidavit in as far as it relates to her.
The
respondent's filed an answering affidavit. They raised a number of
points in litnine. However, I must hasten to say when the matter came
for argument counsel for the respondent abandoned them. I am
therefore not going to decide them. Respondents filed the answering
affidavit of 1803 Superintendent Moses Velebantfu Maseko who stated
that on the 1st March 2000, he together with 2025 Assistant
Superintedent Mfanukwete Bhembe went to applicant's place to execute
an order.
This
deponent admits most of the formal allegations made by the applicant
but took issue that they woke up the applicant by a loud knock at the
door. He denies further that "we ordered to move all his
belongings to Motshane". But aver that he explained to the
applicant that he was executing an order from the Commissioner of
Police that applicant should be moved to Motshane because his
occupation of the farm was illegal. The witness states that the
reason the applicant was handcuffed was because he attempted to run
away.
These
are essentially the facts giving rise to this dispute. The court
heard submissions on the 22nd March 2000. Both parties filed Heads of
Arguments.
On
behalf of the applicant it was contended that the applicant is
entitled to the remedy he seeks as a possessor who was deprived or
despoiled of his possession by unlawful means may apply to court for
mandament van spolie. (see The Law of Property by Silberberg and
Schoemen at page 135). In such proceedings the court will refuse to
consider any claim by the spoliation that he has a better title to
the possession of the thing in question (Silberberg and Schoeman
(supra) at page 135). It was argued further that the respondent has
not advanced any of the two defences recognised by law in spoliation
proceedings.
Per
contra Mr. Fakudze argued that the applicant was not in peaceful and
undisturbed possession of the thing in question at the time of
deprivation. To buttress his point he cited Silberberg and Schoeman
(supra) at page 138, Kgsana and another v Otto 1991 (2) S.A. 113 and
the case of Mbangi and other vs Dobsonville City Council 1991 (2)
S.A. 330. In Kgsana and another (supra) the principle enunciated is
that respondent from the onset having continuously and timeously
taken appropriate steps
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to
counter applicant's illegal conduct the applicant's occupation of
property not having become peaceful and undisturbed a spoliation
order ought to be refused. In the latter case (Mbangi (supra)) the
same legal proposition was articulated that applicant for spoliation
is required to show possession which has become ensconced. Such
possession would normally (but not necessary) be evidenced by a
period of time during which de facto possession has continued without
interference.
These
are the issues before me. There is no need for me to outline the
requirements for mandament van spolie as these are trite. I only feel
it is imperative in this case to outline the underlying principle
behind the remedy. The main purpose of mandament is to preserve
public order by restraining persons from taking the law into their
own hands and by inducing them to submit the matter to the
jurisdiction of the courts. Peace in a community could not be
maintained if every person who asserted that he had a claim to a
particular thing were entitled to resort to self help to gain
possession of a thing (see Curatorem Van "Pioneer No. 1" v
C Championl879 OFS 51 54 Nino Bonino v Delange 1906 T.S. 120 and
Muller v Muller 1915 T.
P.
D
28). In the case in casu it is common cause that the applicant was
removed from the said property with his belongings. It is also common
cause that when the removal was taking place both the applicant and
his wife were handcuffed. The reason advanced for handcuffing the
applicant was that he attempted to flee the scene. No explanation is
given why the wife was handcuffed. It is also common cause that this
removal took place before dawn. The police officers who effected the
removal told the applicant that they were instructed to evict him by
the Commissioner of Police, as his occupation of that farm was
illegal.
It
appears to me that the only attack the respondents have in this
matter is that the applicant was not in "peaceful possession"
as this was countered by the respondent who at divers times prior to
the removal warned the applicant of his illegal occupation. I
disagree with this view; there is nothing in respondent's papers to
show that this was done and the particulars of these warnings. Even
if there were such warnings that is not enough. A landlord can send
as many warning letters to a tenant in arrears that does not mean
these gives him a licence to eject the tenant without a court order.
The respondent can justify his dispossession of the applicant by
showing that he was authorised by a court order or by statute to
dispossess the applicant. With the greatest of respect, the order by
the Commissioner of Police has no such force and thus ultra vires as
it has not be shown under which law it has been issued. The legality
or otherwise of applicant's occupation of the farm is neither here
not there in these proceedings. In any events this issue can only by
tested in a court of law in ejectment proceedings. The authorities
cited by the respondent though they may be relevant in other
instances I was not able to find them of any assistance to this court
in this particular matter.
I
must say, as an aside, that the police acted in a very highhanded
fashion that early morning. Their actions were of a draconian nature.
An elderly couple is roused from sleep at night, he is handcuffed
together with his wife. Their belongings are bundled into trucks.
Some of their belongings including livestock were left behind. These
people have been in occupation of this farm since 1986. When they ask
to see the order authorising the eviction they are told it was not
necessary for them to see it suffice is to say it is an instruction
from the Commissioner of Police. This conduct is totally
unacceptable.
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In
the totality of things I thus grant the order in terms of prayer 2
and 3 of the notice of
motion.
S.B.
MAPHALALA
JUDGE
