Du Plessis v Du Plessis and Another (2990/10) [2011] ZAECPEHC 51 (29 October 2011)

Du Plessis v Du Plessis and Another (2990/10) [2011] ZAECPEHC 51 (29 October 2011)

The applicant established that he was in free and undisturbed possession of the equipment prior to 26 September 2010 and was unlawfully deprived of possession by the respondents when the first respondent refused to release the equipment after the applicant declined to sign an employment contract. The respondents' version was found to be less probable and contradicted by their own affidavits. The court held that the applicant need only prove possession sufficient for protection under the mandament van spolie and that the respondents' conduct amounted to unlawful self-help. The applicant was entitled to restoration of possession, and the counter-application by the second respondent was...

Citation
[2011] ZAECPEHC 51
Parties
Applicant: Gideon Jakobus Du Plessis; Respondent: Willem Jacobus Du Plessis; Respondent: Willem Jacobus Du Plessis N.O.
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
29 October 2011
Case Number
2990/10
Procedural Posture
Urgent Application / Application for Spoliation Order and Counter Application
Outcome
Application granted; counter-application dismissed.
Judges
B Sandi
Legal Topics
Spoliation, Mandament Van Spolie, Possession of Movable Property, Hire Purchase Agreement
Civil Procedure Land and Property Spoliation Mandament Van Spolie Possession of Movable Property Hire Purchase Agreement

Case Brief

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Parties

Gideon Jakobus Du Plessis

Applicant

Willem Jacobus Du Plessis

Respondent

Willem Jacobus Du Plessis N.O.

Respondent

Procedural Posture

Urgent Application / Application for Spoliation Order and Counter Application

Legal Issues

  1. 1 Whether the applicant was in free and undisturbed possession of the equipment prior to 26 September 2010.
  2. 2 Whether the respondents unlawfully deprived the applicant of possession of the equipment, amounting to spoliation.
  3. 3 Whether the applicant is entitled to restoration of possession of the equipment under the mandament van spolie.

Ratio Decidendi

The applicant established that he was in free and undisturbed possession of the equipment prior to 26 September 2010 and was unlawfully deprived of possession by the respondents when the first respondent refused to release the equipment after the applicant declined to sign an employment contract. The respondents' version was found to be less probable and contradicted by their own affidavits. The court held that the applicant need only prove possession sufficient for protection under the mandament van spolie and that the respondents' conduct amounted to unlawful self-help. The applicant was entitled to restoration of possession, and the counter-application by the second respondent was...

Court Disposition

Application granted; counter-application dismissed.

Orders

  • The first and second respondents are ordered to restore possession to the applicant of the specified equipment forthwith.
  • The first and second respondents are to pay the costs of this application jointly and severally.