Nkosana Moyo v Princess Moyo

### Preamble
1
HB 296/20
HC 2018/20
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NKOSANA MOYO

Versus

PRINCESS MOYO

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 2 & 17 DECEMBER 2020

Urgent Chamber Application for spoliation

K. Ngwenya for the applicant

N. Sithole for the respondent

MAKONESE J:	Applicant and respondent are husband and wife.  They were married to each other at Bulawayo on 30th July 2016 in terms of the Marriage Act (Chapter 5:11).  The parties are going through an acrimonious divorce.  At the centre of the dispute is the distribution of the immovable and movable assets of the matrimonial estate.  The parties are living in separation.  Applicant has approached this court on an urgent basis seeking an order for spoliation. The gist of the application is that he was in peaceful and undisturbed possession of a Toyota Hilux GD 6, double cab, white in colour, registration number FC 24 TS GP motor vehicle.  Applicant avers that on or about the 8th of November 2020 respondent resorted to self- help, used force and violence to disposes him unlawfully of the motor vehicle.  The application is opposed by the respondent.

The order sought by the applicant is couched in the following terms:

“It is ordered that:

The respondent be and is hereby ordered to restore to applicant possession of a Toyota Hilux GD6 double cab, white in colour, registration number FC 24 TS GP immediately upon service of this order on her failing which the Sheriff of the High Court of Zimbabwe be and is hereby authorised, empowered and directed to take into possession and recover the said motor vehicle from whoever and wherever it is located and deliver it to the applicant.

That the respondent be and is hereby interdicted and restrained from interfering with the applicant’s peaceful and undisturbed possession and control of a Toyota Hilux GD 6 double cab, white in colour, registration number FC 24 TS GP.

That the respondent pays the costs of suit on an attorney and client scale.”

Preliminary points

The respondent has raised certain points in limine in this matter.  Firstly, the respondent alleges that the applicant has approached this court with dirty hands.  It is argued that there is an order of the Magistrates’ Court (WCP0198/20) which compelled the applicant to deliver possession of the motor vehicle in question to the respondent within 24 hours of the issuance of the order.  The applicant does not deny the existence of the order but avers that the order is vague and unenforceable in that the order does not specify which vehicle must be delivered.  Applicant confirms that they have 3 Toyota Hilux motor vehicles.  Respondent alleges that she cannot be said to be approaching the court with dirty hands in the absence of a court order specifying the vehicle which is to be surrendered in accordance with the court order.  I examined the order of the Magistrates’ Court and tend to agree with counsel for the respondent that the order lacks precision on which motor vehicle was to be delivered within 24 hours.  The respondent confirms that the parties do have 3 Toyota Hilux motor vehicles.  Two of these vehicles have been ordinarily used by the applicant.  The respondent confirms that she was always using the Toyota Hilux GD 6 motor vehicle before the marital problems began.  I cannot, therefore, uphold this preliminary point on the simple reasons that the order sought to be enforced lacks precision.

The second preliminary objection raised is that the matter is not urgent.  Applicant alleges that he was dispoiled of possession on the 8th of November 2020.  The urgent chamber application was only filed on 29th November 2020.  It is argued that the applicant has taken a long time to approach the court for relief and must not be given the right to jump the queue ahead of other urgent matters. Applicant argues that applications of this nature are urgent as they intend to reverse the unlawful and forcible acts of dispossession by the respondent.  I am persuaded to accept that due to the acrimonious nature of the divorce, the matter is somewhat urgent.  Both parties are laying claim to the Toyota Hilux motor vehicle which is the subject of the divorce.  I therefore dismiss the preliminary point and propose to deal with the merits.

On the merits

Applicant avers in his founding affidavit that at all material times, before and after respondent vacated the matrimonial home, he was in peaceful and undisturbed occupation of the Toyota Hilux double cab, white in colour, registration umber FC 24 TS GP.  The motor vehicle is registered in South Africa and according to the applicant belongs to his uncle Ambrose Ncube.  The vehicle was brought into the country under a Temporary Import Permit.  Respondent’s version is that she owns the motor vehicle.  She purchased the vehicle in South Africa and used Ambrose Ncube’s name for convenience.  Respondent has attached documentation showing the payments she made through her NEDBANK account towards the purchase price.  This assertion was not seriously challenged by the applicant. Respondent further states that the motor vehicle was driven into the country by a driver, Elliot Mthukutheli Khumalo.  She further states that at all material time she was in possession of the motor vehicle and on certain occasion applicant would drive the vehicle with her consent.  Respondent’s version is that on the 21st August 2020 she was tricked by the applicant into attending at their matrimonial home for a possible conciliation.  The applicant then seized the motor vehicle and forcibly took the vehicle.  Applicant drove the vehicle to Maphisa where it was concealed.  On this aspect the applicant seems to corroborate the respondent’s version.  He narrates in paragraphs 4.4 to 4.6 how the motor vehicle ended up in a garage at Maphisa.

“4.4	However, after being served with summons in August 2020 the respondent made indications that she intended to lay a claim to the vehicle as she believed the vehicle was matrimonial property.  I then realised that this was going to cause a conflict and acrimony with my uncle who had given me possession and custody of his vehicle in good faith.

4.5	It is then that I thought and decided that I should have taken the vehicle back to South Africa to its registered owner as the respondent had taken the vehicle keys.  I arranged for a tow vehicle to transport the vehicle to South Africa end of August 2020.  Unfortunately, the two vehicle had a breakdown at Wet Nicholson after Gwanda and could not proceed with the vehicle to South Africa.

4.6	I then arranged for the motor vehicle to be taken to my grandfather’s house being stand 86 in Maphisa where it is kept in a lock up garage with a roller shutter door.  It was so kept until Sunday, the 8th of November 2020 where around 7pm I was phoned by my cousin Nkosilathi Dube, advising me that he had been phoned by his tenant, Agim Nyathi reporting that the respondent in the company of 4 men arrived at my grandfather’s house in Maphisa where the motor vehicle was being kept …   After forcibly gaining entry into the premises they had further broken keys of the shutter door garage …”

It is not disputed by both applicant and respondent that respondent drove the car from Maphisa.  The narration by both parties confirms that respondent is laying a claim to the Toyota Hilux GD6 in the divorce proceedings.  The applicant has sought to pre-empt this claim by removing the motor vehicle from this jurisdiction stealthily.  Had it not been for the tow vehicle that had a breakdown at West Nicholson, the vehicle would have been driven into South Africa.  Now, the question that arises is, was the applicant in peaceful and undisturbed possession of the motor vehicle at all material times.  Respondent narrates that she was tricked into driving the motor vehicle to the matrimonial home.  The applicant admits seizing the motor vehicle.  The applicant further admits that he realised that the vehicle was the subject of divorce proceedings and intended to remove the vehicle away from the jurisdiction of the court.  The applicant avers that he intended to hand the motor vehicle to his uncle Ambrose Ncube.  The applicant does not want the vehicle delivered to him for his personal use and benefit.  It is clear these spoliation proceedings have not been properly brought before the court.  The proceedings have not been instituted with the bona fide intention to restore possession.  The intended purpose of the order sought is for the vehicle be taken away from respondent and handed to Ambrose Ncube who resides in South Africa.  This is not what spoliation proceedings are intended for.

Requirements for spoliation

In Davis v Davis 1990 (2) ZLR 136 (H) at page 141B-E, the court held as follows:

“Further, in order for the applicant to obtain a spoliatory remedy it was said by HERBSTAIN J in Kramer v Trustess Christian Coloured Vigilance Council, Grassy Park 1984 (1) SA 748 at 753 that:

“… two allegations must be made and proved, namely, (a) that applicant was in peaceful and undisturbed possession of the property, and (b) that the respondent deprived him of the possession forcibly or wrongfully against his consent.”

But, ADDELSON J in Benett Pringle (Pty) Ltd v Adelaide Municipality 1977 (1) SA 230E at 233 observed that:

“… it is not necessary that the possession be contentious either by the claimant or his servants, the nature of the operations which he conducts on the premises do not require his continuous presence.

In terms of all the authorities cited, the “possession” in order to be protected by a spoliatory remedy, must still consist of the dominus – the”intention of securing the benefit to the possessor, and of detentio namely the “holding” itself …  If in this regard to the purpose of this possessory remedy, namely to prevent persons taking the law into their own hands, it is my view that a spoliation order is available at court to any person who is (a) making physical use of the property, to the extent that he derives a benefit from such use; (b) intends by such use to secure the benefit to himself and (c ) deprived of such us and benefit by a third person.”

Clearly therefore, in this case the applicant was not in peaceful and undisturbed possession of the property, and does not intend to make physical use of the property.  The applicant states in his founding affidavit that he intends to remove the motor vehicle out of the jurisdiction of the court.  The applicant does not intend to derive benefit to himself by securing the order for spoliation.  In his own words, the applicant avers in the founding affidavit that he decided that the motor vehicle should be taken to South Africa to the registered owner.  Applicant goes on to state that he had arranged for the vehicle to be towed to South Africa at the end of August 2020.  An attempt was made to tow the vehicle to South Africa.  The two vehicle broke down.  The vehicle was then concealed at applicant’s grandfather’s residence in Maphisa.  The real purpose for taking the vehicle to Maphisa was to deprive the respondent of the use of the motor vehicle and to ensure that any claim relating to the motor vehicle in matrimonial proceedings would be rendered futile.

In Maswaure v Nyamunda 2001 (1) ZLR 405 (S), the Supreme Court reiterated the principle that spoliatory relief is not available to an applicant who does not have physical possession of the property and has no intention to hold the property for his own benefit.  The court held at page 410F as follows:

“It is clear from the above definitions that the possession which is protected by a spoliatory remedy consists of the physical holding or detention of the property with the intention of holding it as one’s own for oneself.  Applying that definition to the facts of the present case, I am satisfied that he applicant did not prove that he had the “physical holding or detention” of the property, nor that he had the intention of holding the property as his own for himself …”

Disposition

I am satisfied that the applicant has not satisfied the requirements for spoliatory relief.  The clear intention of the applicant was to conceal the property that is the subject of a matrimonial dispute.  He did not have the physical control of the motor vehicle.  In fact it was fortuitous that the vehicle was not driven out of the country.  Applicant has no intention of holding the property for his own benefit.  The remedy of spoliation is therefore not available to him.  Applicant intends to hand the property to a third party to make it difficult for the respondent to lay a claim for it is matrimonial proceedings.

In the circumstances, and in the result, the application is dismissed with costs.

Messrs T. J. Mabhikwa, & Partners applicant’s legal practitioners

Ncube Attorneys, respondent’s legal practitioners