This
is an application for the restoration of matrimonial property to the parties'
matrimonial home namely, No.11 Kayton Avenue, Richmond, Bulawayo.
The
applicant and the respondent are husband and wife.
The
applicant alleges that on the 3rd of March 2013, while driving
outside Bulawayo, going to his rural home, he was called by a police officer
who directed him to come back to Bulawayo urgently as there were people waiting
for him at his house. The applicant alleges that he tried to reason with
the police officer advising him that he would come back later as he was on his
way to his rural home and was almost there. He alleges that the police
officer, who had advised him that he was calling from Sauerstown Police Station,
advised him to come back as his failure to do so would result in him suffering
unspecified consequences. He alleges that he then turned back and when he
got to his house he found two (2) police officers, his father-in-law, brother
and sister-in-law with the respondent. He stated that he greeted them and
then one of the police officers showed him a letter from the respondent's
lawyers. The letter was annexed and marked Annexure “A” to the applicant's
papers. He alleged that he read the letter and he noted that the last
paragraph was instructing him not to hinder the respondent from taking so much
of the matrimonial assets as she wanted. He alleges that he told the
police that he did not accept the contents of the letter from the respondent's
lawyers.
He
further alleges that the police officer then told him the reason they (the
police) were present was to ensure that the applicant did not obstruct the respondent
from doing what the letter instructed. He alleges that the police officer
then instructed the respondent to proceed and take the property that she
needed.
The
letter from the respondent's lawyers was demanding that the applicant allows
the respondent to take the property that she needed as she was then moving out
of the matrimonial home.
The
property that the respondent allegedly removed was listed and annexed as
Annexure “B”.
The
applicant alleges that the respondent did not leave any meaningful property
except for the dining room suite, lounge suite and a cooker. He further
alleges that the dining room suite and the lounge suite are assets that the respondent
found him with when they got married. He alleges that the respondent took away
all the property that was acquired during the subsistence of the
marriage. He further alleges that the respondent even took his personal
documents and this, he says, is evidenced by Annexure “C”, the letter the respondent's
lawyers wrote to the applicant's lawyers dated 15 March 2013, wherein they were
returning an envelope containing the applicant's personal documents, such as
his National I.D, birth certificate, motor vehicle documents, amongst others.
The
applicant seeks the return of these assets to the matrimonial home as he
alleges the respondent committed an act of spoliation.
The
respondent alleges that the parties have had a tumultuous union since 1991. She
alleges that the applicant is a violent man and that there are numerous reports
of violence that she has made to the police at Sauerstown Police Station. She
confirms that she indeed caused her legal practitioners to write the letter
marked as Annexure “A”. She states that she did this as she feared the applicant's
violent tendencies. She states that the two police officers were meant to
ensure that the applicant kept the peace while she moved out of the matrimonial
home. She states that her relatives came along in case the applicant
wanted to discuss some issues.
The
respondent's counsel submitted that his matter could not be resolved on paper
as it is fraught with factual disputes hence it should be dismissed as the applicant
approached this court on the wrong platform.
I
do not agree with the respondent's submission in that regard for I am of the
view that the papers submitted by the applicant (Annexure A and B) together
with the respondent's agreement to the fact that indeed two police officers and
the respondent's relatives were present, leave no other factual dispute that is
material to the determination of this application as there is only one issue to
be determined by this court.
The
issue is; was there consent on the part of the applicant with regard to the
removal of the matrimonial property by the respondent?
Such
issue I am satisfied can be determined on the basis of the information contained
in the affidavits and the annexures. The applicant states that he never
consented to the removal of the assets from No.11 Kayton Avenue,
Richmond. The respondent insists that the applicant indeed consented to
the move.
The
letter from the respondent's lawyers addressed to the applicant, inter alia, states thus, in
the last paragraph:-
“Because
of the climate of fear in the matrimonial home, our client has decided that she
is going to move out of the matrimonial house. We therefore demand that
pending her moving out, you stop your acts of domestic violence/abuse and when
she moves out that you allow her to leave in peace and not to hinder her from
taking so much of the matrimonial assets as she requires for her and the
children's' survival until such time as the issues between yourselves have been
resolved either amicably or through the courts.”…,.
The
wording of this letter is such that a demand is being made to the applicant by
the respondent's lawyers. From the wording of the letter, certainly there can
be no room for either consenting or rejection of the demand. The wording
is peremptory, it's a demand, a directive, an instruction, and certainly far
from being a request. As if that was not enough, the letter is handed to the applicant
by a police officer - in the presence of another police officer and three of
the respondent's relatives. The applicant certainly could not have been left
with any options in such an environment, with two police officers armed with a
demand from lawyers and three of his in-laws being present.
Annexure
“B”, the letter from the respondent's lawyers, despatching the applicant's
personal documents is also indicative of the situation that the applicant must
have found himself in. It would not make any sense that the applicant, been
having consented to the removal of the matrimonial assets, would let the respondent
take away his personal documents - including his national identity
card. If he had been a willing participant in this exercise he certainly
would have made sure some of his personal items and other households goods
remained in his custody. The mere fact that the respondent collected even
those of the applicant's personal items is a pointer to the fact that the applicant
had been stripped of any freedom or volition in so far as the whole exercise
was concerned.
The
requirements for a spoliation suit or action are that the applicant must allege
and prove that he was in peaceful and undisturbed possession of the property in
question and that he was unlawfully deprived of such possession by the respondent. “Unlawful”
would mean without the applicant's consent or without due legal
process. Refer to Kgosana
v Otto 1991 (2) SA 113.
I
find that a lay person in the applicant's situation, as enunciated above, could
not have given his consent under the prevailing circumstances. The respondent
should return the items listed in the amended draft order.
I
accordingly grant the application in terms of the amended
draft. Consequently, the application succeeds with costs.
