Mhlebi and Another v Mbangi and Another (1723/2017) [2017] ZAECMHC 11 (23 May 2017)

Mhlebi and Another v Mbangi and Another (1723/2017) [2017] ZAECMHC 11 (23 May 2017)

The court found that the applicants failed to prove that restoration of possession was possible, as the cattle had been moved to municipal pounds outside the jurisdiction and were no longer in the respondents' possession. Applying the Plascon Evans rule, the court accepted the respondents' version that all cattle were moved by 20 April 2017. Since restoration was objectively impossible, the requirements for mandament van spolie were not met. The court also held that it had jurisdiction over the dispossession, as it occurred within its area, but did not address non-joinder due to the dispositive finding on impossibility of restoration.

Citation
[2017] ZAECMHC 11
Parties
Applicant: Abraham Mandlenkosi Mhlebi; Applicant: Temba Bethwell Siyothula; Respondent: Crosby Bungane Mbangi; Respondent: Nomagcina Mbangi
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
23 May 2017
Case Number
1723/2017
Procedural Posture
Urgent Application / Application for Mandament Van Spolie
Outcome
Application dismissed with costs.
Judges
B Majiki
Legal Topics
Mandament Van Spolie, Jurisdiction, Possession, Non Joinder, Impossibility of Restoration
Civil Procedure Land and Property Mandament Van Spolie Jurisdiction Possession Non Joinder Impossibility of Restoration

Case Brief

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Parties

Abraham Mandlenkosi Mhlebi

Applicant

Temba Bethwell Siyothula

Applicant

Crosby Bungane Mbangi

Respondent

Nomagcina Mbangi

Respondent

Procedural Posture

Urgent Application / Application for Mandament Van Spolie

Legal Issues

  1. 1 Whether the applicants satisfied the requirements for mandament van spolie.
  2. 2 Whether the court has jurisdiction to entertain the matter.
  3. 3 Whether non-joinder of the municipalities affects the relief sought.

Ratio Decidendi

The court found that the applicants failed to prove that restoration of possession was possible, as the cattle had been moved to municipal pounds outside the jurisdiction and were no longer in the respondents' possession. Applying the Plascon Evans rule, the court accepted the respondents' version that all cattle were moved by 20 April 2017. Since restoration was objectively impossible, the requirements for mandament van spolie were not met. The court also held that it had jurisdiction over the dispossession, as it occurred within its area, but did not address non-joinder due to the dispositive finding on impossibility of restoration.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.