The facts of this matter are as
follows:
In May 2010, the parties entered
into an agreement in terms of which the appellant agreed to sell, and the
respondent agreed to buy, a Toyota Hilux motor vehicle registration number AAP
2222. The agreed purchase price was USD$4,000= payable by an initial
deposit of $2,000= and the balance in instalments. It is common cause that
the appellant surrendered the vehicle and the vehicle registration book to the
respondent after payment of the first instalment. Although it is not in dispute
that at the time when the vehicle was surrendered to the appellant there was
still a balance outstanding, the exact amount thereof is in dispute. On 26
October 2010, the appellant regained possession of the vehicle at the Jameson
Hotel in Harare, prompting the respondent to apply to the High Court for an
order of spoliation on 13 December 2010.
In his founding affidavit, the
appellant averred that he had been unlawfully dispossessed of the motor vehicle
by the appellant, who had been assisted in so doing by his brother, and their
agent, one Makombe of Stoneriver Motors. At the time that the vehicle was
taken away he had paid the sum of US$3,300=and had had undisturbed possession
of the vehicle for five months. He had not voluntarily surrendered the
vehicle to the appellant.
On the other hand, the appellant, in
his opposing affidavit, stated that the surrender of the vehicle by the
respondent to him on 26 October 2010 was done voluntarily and therefore there
was no question of him having taken the law into his own hands. The
respondent had only paid the sum of US$2,600=, and, despite a further
extension, failed to pay the purchase price in full. He, accordingly,
demanded the return of the vehicle and its registration book. The
respondent did not comply. His brother, one Garikai, had then encountered
the respondent, by chance, at the Jameson Hotel on 26 October 2010. Garikai
then demanded the balance outstanding of $1,400= and the registration book from
the respondent. It was then that the respondent surrendered the motor vehicle
to Garikai and promised either to go and retrieve the registration book or
bring the sum of $1,400= and settle the balance. The vehicle in the meantime was
then parked at a neutral venue at Stoneriver Motors. The appellant denied
taking the law into his own hands. He claimed that the surrender of the
motor vehicle was with the consent of the respondent.
The court a quo granted the order of spoliation and costs on the higher
scale. It is against that order that the appellant now appeals to this Court.
The issue for determination by this
Court is a simple one. That issue is whether the court a quo erred or misdirected itself, as
alleged, or at all, in finding that there was sufficient evidence on the papers
before it that the appellant had forcibly caused the respondent to surrender
the motor vehicle to him against his will.
The rationale for an order of
spoliation has been set out in various decisions of the courts in this
jurisdiction. In Chisveto v Minister of Local and Town Planning 1984 (1) ZLR 248…, REYHOLDS J
quoted with approval the remarks of INNES CJ in Nino Bonins v De Lange 1906
TS120…, that:
“It is a fundamental principle that
no man is allowed to take the law into his own hands; no one is permitted to
dispossess another forcibly or wrongfully and against his consent of the
possession of property, whether movable or immovable. If he does so, the Court
will summarily restore the status quo
ante, and will do that as a preliminary to any inquiry or investigation
into the merits of the dispute.”
Put simply, it matters not who
actually owned the property, or what the dispute between the parties was, as
long as the respondent had possession in fact, which is not disputed, and was
wrongfully dispossessed.
In Oglodzinski v Oglodzinski 1976 (4) SA 273…, LEON J remarked:-
"In a spoliation application,
the Court does not decide what - apart from possession - the rights of the
parties to the spoliated property were before the act of spoliation but merely
orders that the status quo be
restored. (Nienaber v Stuckey
1946 A.D. 1049 at pp.1053, 1054). The onus
lies upon the applicant to prove, on a balance of probabilities, that:
(i) He was in peaceful and undisturbed
possession of the property in question at the time of the alleged deprivation,
and
(ii) He was unlawfully deprived of
such possession.”
In the present case, the evidence
reveals that the respondent was in factual possession of the motor vehicle at
the time that he surrendered it to the appellant. There can be no doubt,
therefore, that he was in peaceful and undisturbed possession at the time the
vehicle was taken from him.
The findings of the court a quo in this regard are
unassailable.
The real issue, it seems to me,
relates to the second requirement, that is, whether the respondent was
wrongfully dispossessed of the motor vehicle.
It is common cause that the
respondent bought the vehicle in question on credit and that at the time it was
taken from him he had paid a substantial portion of the purchase
price. The meeting at the Jameson Hotel had not been arranged but was
fortuitous.
In coming to a decision, the court a quo took a robust approach of the
facts, and, considering the probabilities, concluded that it was inconceivable
that the respondent would have parted with possession of the motor vehicle
willingly in the manner he did following a chance meeting. I am inclined
to agree with the conclusion by the court a quo, that, given the circumstances, it is unlikely that the
respondent would have willingly parted with the motor vehicle. That
conclusion appears to me to accord with common sense.
No basis has been shown upon which
this finding can be impugned….,.
In the result, it is ordered as
follows:
1. The appeal is dismissed with costs. 