UCHENA
J: The applicant owns number 10 Ziko Township
in Chitungwiza, on which he operates a butchery. On 1 November 2007 he entered
into a lease agreement with the respondent, in terms of which the respondent
leased the butchery together with equipment listed in the lease agreement. At
the termination of the lease the equipment was to be surrendered back to the
applicant together with the premises. When the lease came to an end the
respondent surrendered the premises and other equipment. He however took with
him, a hanging scale, digital scale and deep freezer.
It
is common cause that the respondent signed the lease agreement acknowledging
receipt of equipment including, the hanging scale, digital scale and deep
freezer. He can not now claim that, the equipment he took from the butchery
belongs to him
The
applicant applied for an order directing the respondent to return the property
in dispute to him. His application has aspects which tend to show that he was
not only applying for a spoliation order. In para 2 of the draft order he seeks
the following order:
:
"Failure of
(sic) returning the actual assets. The respondent replaces and returns the
nearest equivalent of the listed items to the satisfaction of the applicant
within the aforesaid period."
This
order can not be granted in an application for a spoliation order which merely
seeks to restore the status quo. In
an application for a spoliation order the court can only order the restoration
of the status quo without determining
the parties' respective rights. Mr Gahadzikwa
applied for an amendment of the draft order by the deletion of para 2. I
granted the amendment, and will now determine whether or not the applicant was
despoiled.
Mr
Gahadzikwa referred me to the cases
of Crause
v Ryersbach (1882) 1 SAR 50, African Ice Co v Kalk Bay Fisheries 1907 TH 263, Burnham
v Neumeyer 1917 TPD 630, S v Singiswa
1981 (4) SA 403, and Frasmus v Durryd Farms 1982 (2) SA 107. He
submitted that the cases prove that a lessee can despoil the landlord by
refusing to return the leased property.
Mr
Machinga on the other hand submitted
that the law on this aspect is not settled as some of the authorities state
that a lessee despoils the landlord if he at the end of the lease agreement
refuses to return leased property. See the cases of Dawood v Robb & Co
1933 CPD 178 and Crause v Reyersbac (supra). He however referred the court to the case of Boompret Investments v Paadekraal Concession Store 1990 (1) SA
347 A in which the South African Supreme Court, suggested a contrary view. VAN
HEERDEN JA at 353 D- F said:
"When a lessor
has given occupation of property to a lessee, there is of course, no question
of an unlawful deprivation of possession. If, at the expiration of the lease,
the lessee refuses to return the property to the lessor, his continued
possession thereof may or may not be unlawful, depending on whether he has
acquired an independent title to the property. In any event, in such a case it
cannot be said that the lessee is taking the law into his own hands or that he
is committing a breach of the peace. Having regard to the fundamental principle
of the mandament van spolie there
must consequently be considerable doubt whether the remedy is at all apposite
when a lessee is sued for ejectment at the termination of the lease."
It is common cause that the South African
Supreme Court did not deal with this issue directly but did so by way of obita dictum. The issue has therefore
not been settled. It is however my considered view that the exposition of the
law is correct in respect of an application for the ejectment of a lessee who
is still in possession of the leased property, and is merely refusing to hand
it back to the lessor.
Mr Gahadzikwa submitted that this case can
be distinguished from the case of Boompret (supra).
It
is true that the facts of this case can be distinguished from those of the
Boompret case (supra), but the
distinction is of no benefit to the applicant. The applicant's relationship
with the respondent is no longer that of lessor and lessee. That relationship
came to an end at the termination of the lease. In terms of the lease agreement
the property was to be surrendered back to the lessor. The respondent
surrendered the premises and other movable property, but did not surrender the
property in question. He took it away from the butchery he was leasing from the
applicant without his consent. He claims contrary to the lease he signed that
the property belongs to him. If it does he would be entitled to take it away.
Even if it does not he lawfully took possession of it at the commencement of
the lease agreement. He from that time became a lawful possessor of the leased
property. The mandament van spolie is
premised on the unlawful taking of property from another who should be in
peaceful and undisturbed possession at the time of being despoiled. In this
case the applicant had not resumed possession of the property in dispute at the
time the respondent took it away from the butchery. He can not therefore be
said to have unlawfully dispossessed the applicant. He simply converted the
property to his own instead of surrendering it back to the applicant. The
conversion though probably insufficient to bestow ownership, does not
constitute an unlawful taking from the applicant who had not resumed possession
of the property. A spoliation order is aimed at restoring the status quo. The despoiled must be allowed to
regain possession. In this case the status quo
is that the respondent was the possessor, and the applicant the owner who
intended to regain possession. If the applicant's application for a spoliation
order succeeds he would regain possession of the property he lawfully handed
over to the respondent at the commencement of the lease. He would through the mandament van spolie regain possession he did not loose by an unlawful taking,
but by the act of leasing it to the respondent.
The mandament van spolie is therefore not
applicable in this case. The applicant should institute a vindicatory action.
He therefore used an incorrect procedure.
In the result the applicant's application
is dismissed with costs.
Gahadzikwa &
Mupunga, applicant's legal practitioners.
Machinga &
Partners, respondent's legal practitioners.