Midriver Enterprises (Private) Limited v Reuben Pashani

### Preamble
Judgment No. SC 31/20
1
Civil Appeal No. SC 655/15
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REPORTABLE:       (27)

MIDRIVER     ENTERPRISES     (PRIVATE)     LIMITED

v

REUBEN     PASHANI

SUPREME COURT OF ZIMBABWE

GWAUNZA JA, HLATSHWAYO JA & MAVANGIRA JA

HARARE, SEPTEMBER 19, 2016

T Z Mazhindu, for the appellant

V Makuku, for the respondent

HLATSHWAYO JA:     This is an appeal against the whole judgment of the High Court, Harare, handed down on 12 November 2015.

At the end of hearing argument from both parties, we allowed the appeal in part and gave the following order:

1. The appeal succeeds in part and the order a quo is amended to read as follows:

a) “The respondent is hereby ordered to return at its cost 378 tobacco bales immediately or within 24 hours of service of this order

b) The 378 bales of tobacco shall be returned to Mvurwi”

2. The appellant shall bear the cost of this appeal.

We indicated that reasons for the decision would follow in due course. These are they.

Factual Background

The respondent, a tobacco farmer, on a previous occasion contracted the appellant to sell his bales of tobacco. After the appellant had sold the respondent’s bales of tobacco, the respondent alleged that the appellant failed to pay him what was due to him for his “golden leaf” sold. The respondent instituted a court action in the High Court under case number HC 8984/15 which is apparently still pending.

On this particular occasion, the respondent being in possession of a certain number of bales of tobacco, was deprived of possession of these bales of tobacco without his consent. Aggrieved by this, the respondent filed an urgent chamber application for mandament van spolie which remedy was granted. Whilst the respondent maintained that he was dispossessed of 437 bales through unlawful means, the appellant conceded to dispossessing the respondent of 378 bales of tobacco. The appellant further averred that it was no longer in possession of the bales of tobacco as it had already sold them to a third party.  On the basis of this latter averment, the appellant argued that the remedy sought was no longer competent but that of rei vindicatio.

However, the court a quo found in favour of the respondent and granted the remedy sought; spoliation. The court a quo reasoned inter alia that there were no receipts proving that the appellant had sold the bales in question neither were there affidavits proving the alleged sales. Dissatisfied with the court a quo’s finding, the appellant registered its grief by noting this appeal on the following grounds;

“1. The court a quo erred in granting a spoliation order notwithstanding that the Appellant had produced proof of sales statements, dispatch sheets, and e-mail confirmations from a third party dated well before the spoliation proceedings had been instituted that the tobacco subject of the proceedings had been acquired by third parties and was not in the possession of the Appellant.

The court a quo misdirected itself in not realizing that the spoliation remedy was no longer available to the Respondent and the available remedy was a vindicatory one in the circumstances.

The court further misdirected itself in granting an order that could not be complied with as the Appellant was no longer in possession of the tobacco.

The court a quo misdirected itself in holding that the Appellant seized 437 bales of tobacco notwithstanding the fact that no evidence was placed before the court and filed of record by the Respondent to establish the number of bales which were seized.

On the contrary, evidence placed before the court by way of sales statements generated by Appellant and dispatch notes clearly showed that 378 bales were taken by Appellant.

This was clear dispute of fact which could not be resolved on the papers and the court misdirected itself in disregarding this clear dispute of fact.

The court a quo further misdirected itself in placing the onus of proof of the seized tobacco on the appellant.”

The above grounds of appeal raise two issues. The first issue is whether or not the cumulative requirements for granting a spoliation remedy were satisfied. The second issue is whether or not the number of bales the respondent was despoiled of were 437 or 378 bales. The two questions shall be dealt with separately hereunder.

Whether or not requirements for granting the spoliation remedy were satisfied

The cumulative requirements for granting the spoliation remedy have been clearly set out in a number of judgments which include, Nino Bonino v De Lange 1906 TS 120 125 and the case of Yeko v Qana 1973 (4) SA 735 (A) 739G. The requirements are as follows:

(i) The applicant (spoliatus: the person whose control has been disturbed) must have enjoyed peaceful and undisturbed control of the thing.

(ii) The respondent (spoliator: the person who disturbed the control of the spoliatus) must have disturbed the applicant’s control in an unlawful manner.

Once a party establishes the above cumulative requirements, the court is enjoined to grant the remedy.

It is undisputed between the parties that the respondent (spoliatus) enjoyed peaceful and undisturbed control of the bales of tobacco. The first requirement is satisfied.

On the second requirement, the respondent correctly alleged that he was dispossessed of the bales through unlawful means which allegation was never controverted. In fact, the appellant conceded having unlawfully dispossessed the respondent of tobacco bales. The second requirement again is satisfied.

The appellant however in defence urged the court in argument that the bales of tobacco in dispute had been dispatched to third parties. Following this argument to its logical conclusion results in the spoliation order becoming a brutum fulmen because the appellant would no longer be in a position to restore the bales of tobacco because of absence of possession of the same.

I find it necessary to point out that the mischief of granting a spoliation order impliedly brings the question of whether or not the appellant was/is still in possession of the property in question, bales of tobacco in casu. It is pertinent to note that a spoliation remedy is used to restore an existing relationship of physical control summarily, without any investigation into the merits of the parties’ rights to the thing, the principle being that control must first be restored to the party despoiled (spoliatus ante omnia restituendus est). Restoration of control assumes possession by the spoliator of the res subject to the spoliation remedy.

In addressing the defence raised by the appellant, the court a quo found the documents tendered by the appellant to be showing that certain bales of tobacco were indeed dispatched to third parties. Those documents however did not prove an actual sale of the specific bales in question. No receipts for the sale were produced. No affidavits were placed before the court from those third parties proving the alleged sales. No proof was tendered showing that those specific bales belonging to the respondent were the ones subject to the alleged sale. (My underlining) The court a quo in its finding rejected the defence raised by the appellant.

A careful perusal of the documents adduced in evidence marked annexures “A, B, C, D, E” shows that the appellant dispatched some tobacco bales from its workplace to third parties. The documents however do not show or prove that it is the specific bales that the respondent had been dispossessed of that were sold. In other words, the documents filed of record by the appellant, as evidence, do not put to rest the question of the whereabouts of the specific bales the respondent was despoiled of. To this end, the respondent argues that the sales sheets do not refer to bales of tobacco taken from him, but certain bales bought by the appellant from Grower number 2283671 and not from grower number V112862 which is the grower number of the Respondent inscribed on the alleged 437 bales which appellant took. The averment relating to the grower number has not been controverted by the appellant. To this end, the sentiments of McNALLY JA in Fawcett Security Operations (Pvt) Ltd v Director of Customs and Excise and Ors 1993 (2) ZLR 121 (S) at 127F are instructive in that what is not controverted must be taken to be admitted:

“The simple rule of law is that what is not denied in affidavits must be taken to be admitted.”

See also Chihwayi Enterprises (Pvt) Ltd v Attish Investments (Pvt) Ltd 2007 (2) ZLR 89(S).

Furthermore, the respondent argued that in the event that there was indeed a sale of the tobacco bales in question, the said “sale” would not be a valid sale under S.I 61 of 2004 (Exchange Control (Tobacco Finance) Order, 2004) [Chapter 22.05]. Section 6 of the Statutory Instrument provides that,

“Except with the authority of the Reserve Bank, no tobacco buyer shall buy from or sell to another tobacco buyer any processed tobacco.”

Accepting the undisputed argument taken by the respondent that the said tobacco had been processed, there is no evidence of authority to sell or purchase granted by the Reserve Bank. This would mean that there was no valid sale or purchase. In the result, all balance of probabilities point to no valid sale or purchase of the bales of tobacco in question.

There is need to remark on the self-inflicted dilemma the appellant appears to have deliberately gotten itself into. On one hand the court frowns on a party that says, “I have breached the law, I have despoiled a party of property unlawfully, but I can go scot-free since the court cannot make an order that cannot be practically executed. So there!” But, on the other hand, while mindful of the undesirability of a brutum fulmen judgment which cannot have any practical effect, such blunt disregard and defiance of the law cannot be allowed to prevail. To guard against a potentially brutum fulmen judgment, we stood down the matter to allow the parties to negotiate and settle but this was to no avail.

However, in the absence of proof that the specific bales of tobacco were indeed sold, we had no option but to confirm the granting of the spoliation remedy.

Whether or not the number of bales despoiled were 437 or 378 bales

The respondent on one hand alleges that he was despoiled of 437 bales. On the other hand, the appellant conceded to having despoiled respondent of 378 bales of tobacco. This is the perfect case for the application of the maxim “he who alleges must prove”. The maxim was applied in the cases of Muzvagwandoga v Development Trust and Others HH 114/15 and Goliath v Member of the Executive Council for Health, Eastern Cape (2015 (2) SA 97 (SCA).

The respondent’s allegation that he was despoiled of 437 bales remained “hanging in the air” as no proof was adduced to this end. There exists no evidence to the effect that the respondent was despoiled of 437 bales of tobacco. Given the concession made by the appellant on the number of bales of tobacco the respondent was despoiled of, that is, 378 bales of tobacco and not 437 bales of tobacco as alleged by the respondent, the court can only make a finding of 378 as the number of bales despoiled.

In light of the foregoing, we were satisfied that the appeal ought to succeed in part for the reasons stated above and granted the order detailed in the beginning of this judgment.

GWAUNZA DCJ:			         I agree

MAVANGIRA JA:	                   		I agree

Mugomeza and Mazhindu, appellant’s legal practitioners

Makuku Law Firm, respondent’s legal practitioners