Maruping v Apolus and Others (1438/06) [2007] ZANWHC 4 (25 February 2007)

Maruping v Apolus and Others (1438/06) [2007] ZANWHC 4 (25 February 2007)

The applicant was in peaceful and undisturbed possession of the goods at the premises and was unlawfully dispossessed by the respondents, who removed the goods under threat of arrest and subsequently sold them to third parties. The sale of the goods did not defeat the applicant's right to restoration, as the goods were still identifiable and the purchasers' identities were known. The applicant had locus standi to bring the application, and non-joinder of the third party purchasers was not fatal since no relief was sought against them. The respondents were correctly cited in their personal capacities. The conduct of the First Respondent, an advocate acting as attorney and sheriff, was...

Citation
[2007] ZANWHC 4
Parties
Applicant: Tshwaro Maruping; Respondent: S.M. Apolus; Respondent: Tsholofelo Mogorosi; Respondent: Apolus & Associates Legal Consultants CC
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
25 February 2007
Case Number
1438/06
Procedural Posture
Urgent Application / Final Determination After Interim Spoliation Order
Outcome
Application granted; rule nisi confirmed; costs awarded against First and Second Respondents jointly and severally; judgment to be referred to the Society of Advocates for investigation.
Judges
R D Hendricks
Legal Topics
Mandament Van Spolie, Locus Standi, Joinder of Parties, Possession, Conduct of Legal Practitioners
Civil Procedure Mandament Van Spolie Locus Standi Joinder of Parties Possession Conduct of Legal Practitioners

Case Brief

Summary, issues, holding and outcome

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Parties

Tshwaro Maruping

Applicant

S.M. Apolus

Respondent

Tsholofelo Mogorosi

Respondent

Apolus & Associates Legal Consultants CC

Respondent

Procedural Posture

Urgent Application / Final Determination After Interim Spoliation Order

Legal Issues

  1. 1 Whether the applicant was in peaceful and undisturbed possession of the goods at the time of dispossession.
  2. 2 Whether the applicant has locus standi to bring the spoliation application.
  3. 3 Whether the sale of the goods to third parties precludes the granting of a spoliation order.

Ratio Decidendi

The applicant was in peaceful and undisturbed possession of the goods at the premises and was unlawfully dispossessed by the respondents, who removed the goods under threat of arrest and subsequently sold them to third parties. The sale of the goods did not defeat the applicant's right to restoration, as the goods were still identifiable and the purchasers' identities were known. The applicant had locus standi to bring the application, and non-joinder of the third party purchasers was not fatal since no relief was sought against them. The respondents were correctly cited in their personal capacities. The conduct of the First Respondent, an advocate acting as attorney and sheriff, was...

Court Disposition

Application granted; rule nisi confirmed; costs awarded against First and Second Respondents jointly and severally; judgment to be referred to the Society of Advocates for investigation.

Orders

  • Paragraphs 1 and 2 of the rule nisi issued on 26 October 2006 are confirmed.
  • First and Second Respondents are ordered to pay the costs of this application jointly and severally, the one paying the other to be absolved.