Court name
High Court of eSwatini
Case number
Civil Case 2044 of 1995

Mayet v Ndiriwempi and Another (Civil Case 2044 of 1995) [2003] SZHC 88 (12 September 2003);

Law report citations
Media neutral citation
[2003] SZHC 88
Coram
Maphalala, J









1


THE
HIGH COURT OF SWAZILAND


FATIMA
MAYET (BORN ESSACK)


Applicant


And


FREDERICK
NDIRIWEMPI


1st
Respondent


ALFRED
NDIRIWEMPI


2nd
Respondent



In
Re:


FREDERICK
NDIRIWEMPI


Plaintiff


SAMMY
MAYET


Defendant


Civil
Case No. 2044/1995


Coram S.B.
MAPHALALA - J


For
the Applicant MR. M. SIMELANE


For
the Respondent MISS SIMELANE


2


RULING


(On
point in limine)


(12/09/2003)


The
Applicant filed an application under a certificate of urgency for an
order inter alia that the 2nd Respondent forthwith restores to the
Applicant the vehicle described as follows: 1 tormer Nissan Bakkie
(details as appearing on the return of execution) and further that
the writ of execution issued by Messrs Millin and Currie is defective
for want of compliance with Rule 16 of the rules of court.


The
founding affidavit of the Applicant is filed in support thereto. A
confirmatory affidavit of Sunny Mayet is filed of record. Various
anmexures pertinent to the Applicant's case are also filed. A further
confirmatory affidavit of Muzi Simelane the attorney for the
Applicant is also filed.


The
1st Respondent opposes the application and the answering affidavit of
the 1st Respondent is filed thereto. A further affidavit of the 2nd
Respondent is also filed in opposition of this application. Various
annexures pertinent to the application are filed. A confirmatory
affidavit of Hloniphile Jordan Simelane is filed of record.


In
turn the Applicant filed a replying affidavit in answer to the
Respondent's answering affidavit.

The
1st Respondent has raised point of law in limine which can be
paraphrased as follows:


2.1. The
Applicant has not adopted the correct procedure in dealing with this
matter in that;


2.1.1. This
s an action which purports to be a rei vindicatio, however not enough
allegations have been made out in support of a claim of rei
vindicatio.


2.1.2. That
there is a dispute of fact and the matter should have been brought by
way of interpleader action.


2.1.3. Although
brought on a certificate of urgency the application fails to comply
with the requirements of Rule 6 (25) (b) of the Rules of Court.


5


Lastly,
it was argued for the Applicant that for the Deputy Sheriff to have
acted lawfully the property attached must be that of the Defendant to
defeat the spoliation application.


In
casu, the Applicant has shown that she was in peaceful and
undisturbed possession of the vehicle and she has been despoiled of
such possession. In this regard Mr. Simelane cited the authority of
Silberberg and Schoeman's Law of Property 134 -138 and the case of
Yeko vs Qana (supra).


These
are the issues for determination. The crux of the matter as I see it
is whether these are spoliation proceedings and if it found that they
are, whether the Applicant has proved her case. The Applicant alleges
that she has launched spoliation proceedings not vindicatory
proceedings.


According
to Baker et al, The Civil Practice of the Magistrates Court in South
Africa (Vol 1) (7th ED) at page 85 in order to obtain a spoliation
order two allegations must be made and proved:


i) That
the Applicant was in peaceful and undisturbed possession of the

property;
and


ii) That
the Respondent deprived him of possession forcibly and

wrongfully
against his consent (see Nino Bonino vs De Lange 1906

T.S.
120).


In
the present case the Applicant has not made and proved the
above-mentioned requisites. In the founding affidavit these two
allegations are conspicuously absent. The court is merely invited to
glean through the said affidavit. It is trite law that according to
the above-cited authority these requirements should appear ex facie
the Applicant's founding affidavit.


Therefore
the Applicant cannot succeed in spoliation proceedings.


The
action also purports to be a rei vindicatio, however no allegations
have been made out in support of a claim of rei vindicatio. According
to Olivier et al, Law of


6


Property
(2nd ED) at page 128 the requirements for the rei vindicatio are the
following:


a) Ownership
- the claimant must prove his ownership of the thing (see Obrahim vs
Deputy Sheriff, Durban 1961 (4) S.A.

265
(D)267 G).


b) A
thing still in existence and identifiable.


c) Control
(see Vulcan Rubber Works (Pty) Ltd vs South African Railways and
Harbours 1958 (3) SA. 285 (A)).


In
casu the Applicant has failed or rather has not attempted to
establish ownership in her founding affidavit. The closest averments
bearing on the question of the ownership of the motor vehicle is
found in paragraphs 8, 11 and 12 of the founding affidavit. Paragraph
8 reads in extenso as follows:


-8-

Pursuant
to the attachment of the vehicle, my attorney contacted the
Respondent's

attorney
to advise them about the defects in the writ of execution and the
fact that the property attached is not that of the alleged Defendant.
Notwithstanding this explanation and production of documentary proof,
the Respondent's attorneys informed my lawyer that there were still
to take instructions. I did not understand what instructions were to
be taken, as it was clear that the vehicle is not the property of the
alleged Defendant. It was also brought to the Respondents attorney
that even if the vehicle did not belong to the alleged Defendant, the
marital regime under which we got married is one of out of community
of property and there is no way that debts of my husband will have to
be satisfied from assets belonging to me. I beg leave to refer this
Honourable Court to annexure "FM3" being a letter written
by our attorney to Respondent's attorneys.


Paragraph
11 and 12 reads as follows:


-11-

As
aforesaid the matter is urgent because the vehicle is used by my
husband to run various family errands, it is also used for purposes
of the business. The absence of the vehicle simply means that for all
transport requirements, we now have to hire a car and already we have
spent over E2000.00 just this past weekend and the longer the vehicle
is away, this figure will escalate.


-12-


3


The
last point of law viz 2.1.3 was not pursued when the matter came for
arguments, therefore no further comments will be necessary.


It
is contended on behalf of the Respondent that the Applicant has not
adopted the correct procedure in dealing with this matter in that it
is an application for restoration of possession of an attached motor
vehicle yet in its founding affidavit it has failed to establish the
grounds upon which a court can base the granting of the relief claim
in that the action purports to be spoliation proceedings yet not
enough allegations have been made out in support of a claim of
spoliation i.e. i) that Applicant was in peaceful possession, and ii)
that she was unlawfully deprived of such possession. To support this
view the court's attention was directed to the case of Yeko vs Qana
1973 (4) S.A. 735. Further that Applicant has failed to establish
even a clear right to the use of the vehicle. The Applicant has
failed to established being in possession of the vehicle as opposed
to the Defendant, she has not

even
alleged being

in
possession
in her founding affidavit save and except to mention that the
marriage regime between herself and the Defendant was out of
community of property at paragraph 8 of her affidavit. That such an
allegation is unfounded and baseless.


It
is contended further that the action also purports to be a rei
vindicatio,

however
no allegations have been made out in support of a claim of rei
vindicatio. The Applicant has failed or rather has not even attempted
to establish ownership in her founding affidavit, which fact
Respondent disputes. In the circumstances' the application contains
insufficient allegations to sustain the cause of action consequently
the Applicant has failed to make allegations in support of the relief
sought.


Furthermore,
it is submitted that Applicant is seeking a relief under a wrong
procedure and

should
have
anticipated a dispute of fact arising. She should have brought the
matter by way of interpleader proceedings or action proceedings
because of a likelihood of a dispute of fact arising which cannot be
determined in application proceedings. There is a serious dispute
whether Applicant is the owner of the vehicle and the Respondent
disputes that she is the owner not that she and not Defendant, was in
possession of the vehicle. The Respondent contends that this
application cannot be decided without the need to adduce oral
evidence a fact which should have been anticipated by the Applicant.
For this proposition the court was directed to the South


4


African
case of Room Hire vs Jeppe Street Mansions (Pty) Ltd and Rule 58 of
the High Court Rules.


Finally
it was argued on behalf of the 1st Respondent that the writ of
execution was properly executed in accordance with the law.


On
the other hand it is contended on behalf of the Applicant that these
are spoliation proceedings and not vindicatory proceedings. In casu
the interpleader is inappropriate because the purported attachment of
the vehicle is not pursuant to a writ of execution issued in
accordance with the rules of this court. The attachment is not lawful
nor has it been done with the consent of the Applicant.


The
Applicant alleges a fraud was perpetrated in this case in that the
summons indicate that the name of the Defendant is SAMMY MAYET, yet
the writ of execution indicates that the Defendant is SUNNY MAYET.
Without filing necessary notice of amendment, the Plaintiff's
attorneys changed the name of the Defendant contrary to Rule 28. The
proposed amendment would have been objectionable on the basis that it
would amount to an introduction of a new part to the proceedings.


It
was contended further that the writ of execution was defective in
that the attorneys of record are Harold Currie and Company and not
Millin

and
Gurrie.
No
notice of substitution has been filed rendering the writ defective
for want of compliance with Rule 16. The writ is also fatally
defective for want of compliance

with
Form
20 in that if Harold Currie is still the attorney of record as
alleged in the answering affidavit then the writ has to bear the name
of Harold Currie and his address and not Millin and Currie.


Furthermore,
it was contended for the Applicant that the attachment was not in
accordance with Rule 45. The allegation here is that the Ad Hoc
Deputy Sheriff never demanded to be shown the property of the
Defendant (Sammy Mayet) but merely placed under attachment the
Applicant's vehicle.


7


The
matter is rendered urgent also by reason of the fact that the
attachment is wrongful and it should not have happened in the first
place. As aforesaid, the vehicle is used for commercial purposes and
this application is one way I seek to mitigate the attendant damages
resulting from the wrongful attachment.


In
my respectful view, these paragraphs cited above fall short in
proving ownership for purposes of a rei vindicatio. Therefore even
under the rei vindicatio the Applicant cannot succeed.

In
the result, the application is dismissed with costs.


S.B.
MAPHALALA


JUDGE