Bernard Mahara Mutanga v Tsitsi Mutanga (Nee Mangwadu)

### Preamble
1
HH 247/13
HC 5796/13
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BERNARD MAHARA MUTANGA

versus

TSITSI MUTANGA (NEE MANGWADU)

HIGH COURT OF ZIMBABWE

DUBE J

HARARE, 18 and 24 July 2013

Urgent Chamber Application

V.  Makuku, for the applicant

Mrs B. Mtetwa, for the respondent

DUBE J:  The applicant approached this court on an urgent basis seeking a spoliation order. The parties are married to each other and are on separation pending divorce. When the parties separated, the applicant retained property which includes a Chrysler 300 D registered in Botswana which he keeps at his house and the respondent a Mercedes Benz CLK 320 and other property.

On 13 July 2013 the applicant sent Chiedza Sundayi, (hereinafter referred to as Chiedza) his girlfriend to the Avondale Shopping Centre to buy some groceries. She was in the company of the couple’s minor child Bernard Tanatsa Mutanga. She drove the Chrysler. Chiedza returned a few minutes later and reported that she had been dispossessed of the vehicle by the respondent at the shops. The applicant has launched this application.

The respondent raised two preliminary points and after my ruling, I directed that the matter proceed on the merits. The points may be summarised as follows. Counsel for the respondent Mrs Mtetwa submitted that the court did not have the right applicant before it. That the applicant was not in physical possession of the vehicle when it was recovered but that of his girlfriend Chiedza Sundayi. She contended that Chiedza should be the applicant and not Bernard Mutanga the current applicant. She submitted that the law of spoliation protects physical possession only. Counsel referred the court to the cases of Yeko v Qana  1973(4) SA 735 and Stocks Housing(Cape)Pty Ltd v Chief Executive Director, Dept of Education& Culture Services1996(4) SA 231 for that proposition.

The second preliminary point relates to the dirty hands principle. Mrs Mtetwa submitted that the applicant has dirty hands and should not be entertained by the court in that he allowed Chiedza to drive the car against the Zimbabwe Revenue Authority (ZIMRA) Temporary Import Permit (TIP) conditions which are clear that the vehicle should not be used by residents of Zimbabwe and should be kept at the respondent’s address. Respondent’s counsel claimed that the applicant has also contravened the law by failing to renew the TIP thereby depriving the state and ZIMRA of revenue. She submitted that the possession by Chiedza is tainted with illegality and cannot be peaceful and undisturbed possession. Counsel urged the court not to condone the illegal actions of the applicant especially in this case where the illegality concerns the fiscus.

In his response Mr Makuku who represented the applicant argued that Chiedza was driving the vehicle with the consent of the applicant in that the applicant extended his possession of the vehicle to her. That by implication, the applicant was in physical possession of the vehicle as she had the consent of the applicant to drive the vehicle.

On the point concerning the dirty hands principle, Mr Makuku submitted that the applicant has not been in unlawful or illegal possession of the vehicle as he was given permission to register the vehicle in Zimbabwe in April 2011. He conceded that the applicant has not renewed his TIP since that time but contended that that there was no need to renew the TIP as he had been given permission to register the vehicle in Zimbabwe. He stated that the vehicle had experienced mechanical problems resulting in the delay in registering the vehicle.

The first preliminary point concerns the applicant’s locus standi to institute these proceedings. A party seeking to rely on this remedy must prove the following requirements.

1. That he was in peaceful and undisturbed possession of the property.

2. That he was forcibly by stealth, wrongfully deprived without his consent or lawful order. See Botha and Anor v Bannet 1996(2) ZLR 73 (SC), Dian Farm (Pvt) Ltd v Mudondo 1988(2) ZLR 410 (H), Forrester Estate (Pvt) Ltd v Edgar Chidavaenzi HH 22/10 for this approach. Nino Bonino v De Lange 1906 TS 120, Niebar v Stuckey 1946 AD 1049, Dana Farm (Pvt) (Ltd) v Mudondo 1998 (2) ZLR 410 (H).

The first preliminary point has a bearing on the merits of the application. In order to determine this question, the court is required to examine the requirement regarding whether or not the applicant was in peaceful and undisturbed possession of the vehicle at the time of the dispossession. The onus is on the applicant to prove the requirements of the mandamus. I find authority for this proposition in the case of Mars Incorporated v Candy  World 1991(1) SA 567 @575H-D where the court remarked as follows:-

“The general rule is that it is for the party instituting proceedings to allege and prove that he has locus standi, the onus of establishing that issue rests upon the applicant…”

The applicant is required to show that he was in possession of the property. The concept of possession is explained in R v Binns 1961 (2) SA 104 where @ p104 the court explained the concept as follows.

“ Two elements are involved: a physical element (corpus) and a mental element (animus). The comprehensive and precise delineation of corpus is a matter of extreme difficulty, but for present purposes it may be assumed to be physical control by a person over a thing-a conception, the precise limits of which though difficult to define, is yet largely self- explanatory. The co-existence of corpus and animus postulates the presence of this intention in all cases, but it may be qualified according to the circumstances; a)the intention may be to exercise control for one’s own benefit or b) to exercise control on behalf of another. The owner or thief exercises control for his own behalf; the agent or servant, on behalf of another. Both qualifications may, however, be present at the same time; the lessee and the borrower for use exercise control for their own benefit and also on behalf of the lessor or lender.”

The judge also referred to the case of Rex v Kasamula 1945 TPD 252 for the definition  where it was held that the ordinary meaning of ‘possess’ is physical detention or control plus the intention to exercise control for one’s own purpose or benefit. In Yeko Qana (supra), the court held that a party seeking the remedy should establish possession and the possession which must be proved is not possession in the juridical sense, it may be enough if the holding was with the intention of securing some benefit for himself.”

In the case of Masvaure v Nyamunda 2001 (1) ZLR 405(S) the court held that the possession envisaged in spoliation matters consists of the physical holding and detention of the property with the intention of holding it as one’s own or for oneself. The applicant must establish that possession was not only physical but that it was accompanied by animus, intention of securing a benefit. See also Bennet v Pringle (Pvt) Ltd  v Adeladide Municipality 1977(1) SA 230 @ 233 which was quoted with approval by ADAM  J in Davis v  Davis  1990(2) ZLR 136(H) @ 141 E-F as follows:-

“In terms of all the authorities cited, the ‘possession’ in order to be protected by a spoliation remedy must still consist of the animus – the intention of securing some benefit to the possessor; and detention, namely the holding itself … if one has regard to the purpose of the possessory remedy, namely to prevent a person taking the law into their own hands, It is my view that a spoliation order is available to any person who is;

making physical use of the property to the extent that he derives a benefit from such use.

intents by such use to secure the benefit himself

is deprived of such use and benefit by a third person”.

In Nathan, Interdicts@344 the author states that,

“…The applicant (for a spoliation order) must show that at the time of dispossession he had not merely the intention to hold possession, but also actual physical possession either personally or by a representative.’’

In R v Binns and Anor (supra) the court concluded that

“the corpus exists either in direct physical control of the person concerned himself over the thing or through the mediate control through another having control on behalf of the former.”

JANSEN J also discusses the concept of immediate control and refers to sentiments expressed in In An Essay on Possession in the Common Law by Pollock & Wright p 26 where the writers state that,

”a movable thing is in the possession of the husband of any woman, or the master of any servant who has the custody of it for him, and from whom he can take it at pleasure. The word ‘servant’ here includes any person acting as a servant for any particular purpose”

In their book the Law of Things and Servitudes @ p 70 C.G Van der Merwe and M.J. de Waal discuss the concept of direct and indirect possession. They conclude that physical control of a thing need not be exercised personally but may be exercised indirectly by a representative or a servant of a possessor. That all that is required to be established is that the possessor should have the intention of deriving some benefit from the object in issue. The authors conclude that  both the direct and indirect possessor are entitled to the mandament van spolie as long as they can show that the possessor had the intention to derive some benefit for himself from holding the thing. The authors suggest that the remedy should be extended to all persons exercising conscious control over a thing and suggest that this correlates with the main purposes of the mandament, which is to discourage self-help and disturbance of the peace.  The authors find support for this proposition in the cases of Mbuku v Mdinwa (Supra) were the concept of vicarious possession was recognized.

The authors go on to suggest that making the mandament van spolie available to all persons exercising physical control over a thing with the intention to exclude others from interfering with the object would lead to equitable results. The authors conclude that both the direct and indirect possessors should in principle be entitled to the mandament. Further that the direct possessor should have the first opportunity of instituting the mandament. If the direct possessor is unwilling to or unable to institute the mandament, the vicarious possessor should be entitled to avail himself of the mandament. I agree with the reasoning of the learned authors. The reasoning is fair and accords with real and good notions of justice.

It is clear therefore that physical possession can be attained through another person. What this court is being called upon to decide is whether the applicant possessed the vehicle through his girlfriend.

The facts of this are quite unique in that they involve a person sent on an errant in a car belonging to the sender and later being dispossessed of the vehicle. There is a plethora of cases where the courts have accepted that an owner or holder of property may institute spoliation proceedings even though he may not have been in actual physical possession of the property at the time of the dispossession. Most of the cases involve agent- principal relationships. The facts of this case are similar to the case of Mbuku v Mdinwa 1882 (1) SA 219 .The facts of this case are that the respondent left cattle he had  inherited from his father at his father’s kraal where his brother looked after them. One day when his brother took them to the dipping tank the applicant drove them away. The court held that although the brother had the cattle under his physical control, it was for a limited purpose of having them dipped and having them returned to the kraal afterwards and that the cattle did not pass from the respondent's possession into his brother’s possession in the sense in which the concept of possession is understood in spoliation proceedings. The court further remarked that an agent who holds property on behalf of his principal or who derives no benefit from his holding it is not entitled to the remedy. HEFER CJ stated @222F as follows.

“In any event I am of the view that an agent who has no interest in the property which he holds for his principal, or who derives no benefit from holding it ,is not entitled to claim the relief of a amendment van spolie. One should not forget that it is a remedy which is available to a possessor; it has never, to my knowledge, been extended, except perhaps inadvertently, to a mere detentor. But the animus possidendi which is required to transform detention into possession is not the intention required of old for so-called civil possession; it is no more than the intention to hold the thing in question for one’s benefit and not for another. And a detentor who does not have the intention is indeed merely a detentor .I am in full agreement with the view expressed in Wille Principles of SA Law 7th Ed at 196—7 ….If the person who has detention of a thing has the intention of holding it not for himself but for another person, he does not have possession, he is a custodian merely and the possessor is the person on his behalf he is holding”

The learned judge goes on to say that physical control is capable, not only logically but legally too, of being exercised either personally or through an agent. He relies for this proposition on Grotius Inley 2.2.4 who says,

“...it is well understood that possession and all its consequences may be acquired through an agent”.

What I can say from all these authorities, is that physical control of a thing is capable of being exercised personally or through another person. The possession envisaged in spoliation proceedings is not mere physical possession. A party wishing to rely on this remedy is required to show that he had, in addition to the physical control of the property, an intention to exercise that control for his own purpose or benefit. A person who has no intention to derive any benefit from the property does not possess the property but has mere detention of it. The person who has possession is the person on whose behalf he holds the property. He is the possessor and is entitled to bring spoliation proceedings.

The same approach adopted in cases involving agents should in my view be applicable here. The rationale in denying an agent the remedy of the mandament van spolie spoliation is that, the agent has no interest in the property he holds and is a mere detentor .He does not hold the property with a view to get a benefit for himself from holding it but for the benefit of another. The deciding factor as found in Mbuku (supra) is whether the person holds the property ‘not for himself but for another person’.

In this case, Chiedza was sent on an errand by the applicant, to buy some groceries from the shops in the vehicle. She drove the vehicle with his authority and consent. It is difficult to say that she borrowed the vehicle because she did not drive the vehicle for her own benefit. Although Chiedza had custody and exercised physical control over the vehicle at the time it was taken, there is no evidence that she had any personal or beneficial interest in holding the vehicle or that she did have the intention to derive some benefit from the vehicle herself. It seems that her use of the vehicle was temporary and was limited to the purpose for which she was given the car, thus going to the shops to purchase some groceries for the applicant. She would be expected to hand over the vehicle back to him when she returned. Chiedza intended to hold the vehicle not for herself but for the applicant and is a custodian and a mere detentor. The possessor is the person on whose behalf she held the vehicle.  It is clear that she exercised control over the vehicle for the benefit of the sender. She drove the vehicle at his pleasure. Possession of the vehicle had not passed over to her and hence held it on behalf of the applicant. She is not entitled to claim relief under the mandament. The remedy is only available to a possessor who holds the property with a view to deriving some benefit from it. The applicant still retained control of the vehicle and is legally the possessor. He still had the intention to benefit from the vehicle despite giving the vehicle to his girlfriend to drive to the shops. The applicant is an indirect possessor.  He has been disturbed in his control of the vehicle and is entitled to institute spoliation proceedings. He has sufficient interest in the vehicle to entitle him to sue for the recovery of the vehicle. See Muller v Muller 1915 TPD 28 and Jager v Harris and the Master 1957 (1) SA 171.

The decision in Masvaure deals with classical dispossession and remains authoritative. The facts of this case are distinguishable. If the direct possessor, thus Chiedza does not institute proceedings, the real possessor, the applicant will be left with no remedy and an absurdity will occur. That point fails.

The principle that a court may not grant relief to a litigant with dirty hands in the absence of good cause being shown or until such defiance or contempt has been purged was applied in ANZ (Pvt) Ltd v Minister of State for Information and Publicity 2004 (1) ZLR 538(S), S v Neil 1982(1) ZLR 42 (H), Milligan v Mulligan 1925 WLD 164, Fraind v Nothman 1991(1) SA 837.

The objection is basically that the applicant has been driving a Botswana registered vehicle which is on a temporary import permit without renewing it with ZIMRA since April 2011. That he has been keeping the vehicle in Zimbabwe without authority and in breach of the law. The applicant has also failed to keep the vehicle at the given address and allowed Chiedza to drive the vehicle without authority.

The application of this principle in spoliation proceedings was considered by KUDYA J in Karori (Pvt) Ltd and Anor v Mujaji 2007 (1) ZLR p 80   where the learned judge remarked as follows.

“Before a person seeks to establish his rights in a court of law, he must approach the court with clean hands. Where he himself through his own conduct makes it impossible for the processes of the court (whether criminal or civil) to be given effect to, he cannot ask the court to set its machinery in motion to protect his rights and interests”

On the facts of this case, the applicant brought these proceedings on the premise that the respondent took the law into her own hands when she dispossessed Chiedza of the vehicle. The respondent allegedly took the law into her own hands by taking the vehicle from Chiedza without a lawful order. It does not appear to me that the respondent has clean hands herself. She cannot ask this court to set its machinery into motion to protect her when she herself is in breach of the law. This point fails.

Having handed down my ruling on the preliminary points, I directed that the application be argued on the merits. Mr Makuku submitted that the applicant’s girlfriend was wrongfully and unlawfully dispossessed of the vehicle. The fact that the TIP had expired did not justify the respondent taking the law into her own hands. Mrs Mtetwa submitted that the vehicle was taken with the consent of the applicant’s girlfriend.  She submitted further that the applicant has not been able to show that he was in peaceful and undisturbed possession of the vehicle as the vehicle was not in his possession at the time of the taking. She submitted further that whilst Chiedza claimed that she had been pulled out of the vehicle; her supporting affidavit has no explanation of how the doors were opened and how she was pulled out of the vehicle. She fails to explain what happened to the keys and that it is not clear whether they were left in the ignition or she pulled them out. There is no explanation pertaining to the position where the child was seated in the car or how he got out of the vehicle. Mrs Mtetwa argued that the applicant failed to give a full explanation of how the actual dispossession took place. She castigated the applicant for failing to file an answering affidavit dealing with all these points when it was clear from the respondent’s opposing affidavit that the respondent refuted Chiedza’s version.

The first preliminary point disposes of the requirement that the applicant be in peaceful and undisturbed possession of the property.  Surprisingly, Mrs Mtetwa despite my earlier ruling that the applicant was a possessor of the property and was entitled to apply for spoliation, pursued the preliminary point I had dismissed. She contended that the applicant had not established that he was in physical possession of the vehicle. My ruling stands.

The remaining issue is whether the applicant’s girlfriend consented to the taking of the vehicle. The following are the defences which a respondent may raise.

That the applicant was not in peaceful and undisturbed possession of the property

at the time of the dispossession.

b)  That restoration of the property is impossible

c)  That the respondent acted within the limits of counter spoliation in gaining

possession of the property and

d)  That dispossession was not unlawful and did not constitute spoliation.

It is the last defence that we are concerned with today. The respondent’s defence is that the applicant’s girlfriend consented to the taking. The respondent further asserted that she was obliged to take the vehicle as Chiedza was driving the vehicle in contravention of the ZIMRA regulations. She wanted to take her to the police.

The onus is on the applicant to show that his girlfriend did not consent to the taking. The approach that the court is going to take is the one outlined in Botha and Anor v Barret 1996 (2) ZLR 73 S@ 80 where GUBBAY CJ (as he then was) remarked as follows.

“Consent to the deprivation may be expressly given, as where the possessor is present at the time, is spoken to and gives his permission. Or it may be implied from the conduct of the possessor both before and after the removal of his property. In casu, as I have mentioned, it was for the respondent to satisfy the court on a balance of probabilities that any actions or omissions bearing upon his loss of possession, did not warrant a finding that he had been a consenting party.”

Another case on point is Stocks Housing (Cape) Pvt Ltd (supra) where the court in dealing with the question of consent remarked as follows,

“The cardinal enquiry is whether the person in possession was deprived thereof without his acquiescence and consent. Spoliation may take place in numerous ways. It may be unlawful because it was by force, or by threat of force, or stealth, deceit or theft, but in all cases spoliation is unlawful when the dispossession is without the consent of the person deprived of possession, since consent to the giving up of possession of property, if the consent is genuinely and freely given, negates the unlawfulness of the possession.’’

There are a number of disputes concerning the manner in which the car was taken. These are still capable of resolution on the papers before me. I will adopt a robust and common sense approach and resolve them. See Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338.

The court will examine the manner in which the dispossession took place in order to determine the lawfulness or otherwise of the taking. Chiedza claims that as she was driving the vehicle, she was suddenly blocked by the respondent who was driving an Audi 3 and she stopped the vehicle. The respondent embarked from her vehicle, walked towards her and pulled her and the child out of the vehicle. The respondent got into her vehicle and drove away in it, leaving her and the child behind. The vehicle that the respondent had been driving was taken over and driven away by her male passenger. She remained with the child. The respondent claims that when she approached the applicant, she introduced herself to her and Chiedza immediately bolted from the car. She explained that she required to go with her to the police and Chiedza voluntarily gave her the keys to the car. She denies that she forcibly took the car from her buts contends that the vehicle was surrendered to her by consent. She also claims that she took her son with her. Following the recovery of the vehicle, she made a report to the Southerton Vehicle Theft Section.

The applicant does not allude to any exchange of words between the two. The respondent claims that after the encounter, she introduced herself to Chiedza and asked her to come to the police with her and she refused. Both mother and son state that Chiedza seemed reluctant to go to the police and do not suggest the words spoken by her. There is nothing from both versions to suggest that the applicant’s girlfriend expressly consented to the taking. The remaining issue is whether it can be implied from Chiedza’s conduct during and after the taking that she consented to the taking.

Chiedza’ version discloses a movie style dispossession where she was left horror- struck. The act of blocking Chiedza in itself suggests that she was forced to stop. Chiedza’s affidavit discloses that the taking occurred within a few seconds of the encounter. Here we do have a girlfriend confronted by the wife of her boyfriend whilst driving a family car. This is not the sort of situation that a girlfriend in her circumstances desires to find herself in. Chiedza says that she was in utter shame and shock. She does not mention what happened to the keys during the melee. There is no suggestion that she handed over the keys. She states that both her and the child were pulled out of the vehicle and omits to give finer details of this occurrence. Even when the court considers the respondent’s stance alone, I still remain unsatisfied that the circumstances of the taking amount to consensual taking. Even assuming that she handed over the keys, it cannot be said that the handover was voluntary. The taking was through violence. It is clear that the taking was induced by fear and duress. I am unable to find that the consent, if any was given genuinely and freely. The fact that she made an immediate report of the dispossession to the boyfriend resulting in the launching of this application supports her assertion that she did not consent to the taking. The court has noted that the applicant did not report the dispossession to the police. The inference to be drawn from the circumstances of the taking is that the respondent forcibly and unlawfully dispossessed Chiedza of the vehicle. There is no reason why the applicant’s girlfriend would lie that she remained with the child if she didn’t. The facts as alleged by the applicant’s girlfriend are more probable. I reject the respondent's version.

The defence that the possessor’s possession was illegal does not suffice as a defence in spoliation claims. In De Jagger and Ors v Farah Nesta 1947(4 )SA 28, the court held that no matter how unlawful a person’s possession may be, his possession may not be interfered with except through due process of law. This defence does not avail the respondent.

I am left in no doubt that Chiedza did not consent to the taking. The application is granted.

The respondent is ordered to return Chrysler 300D registration number B977 ALA to the applicant within 24 hours of the service of this order. The vehicle shall be surrendered at No26 Maasdorp Avenue, Belgravia, Harare. Costs follow the event.

Tizirai Chapwanya and Makuku, applicant’s legal practitioners

Nyambirai Mtetwa and Partners, respondent’s legal practitioners