Monteiro and Another v Diedricks (1199/2019) [2021] ZASCA 15; 2021 (3) SA 482 (SCA); [2021] 2 All SA 405 (SCA) (2 March 2021)

Monteiro and Another v Diedricks (1199/2019) [2021] ZASCA 15; 2021 (3) SA 482 (SCA); [2021] 2 All SA 405 (SCA) (2 March 2021)

The majority held that the mandament van spolie is a possessory remedy requiring restoration of possession by the party who committed the dispossession. However, an order for restoration cannot be granted where the party is no longer in possession and compliance is impossible. In this case, neither Autoglen nor Monteiro were in possession of the BMW motor vehicle at the time the order was sought, as it had been sold and delivered to a third party by Street Talk Trading. The high court's order requiring restoration was thus not capable of being carried into effect and was set aside. The majority further found that Monteiro acted only in a representative capacity for Street Talk Trading and...

Citation
[2021] ZASCA 15
Parties
Appellant: Jose Aquino Monteiro; Appellant: Autoglen Motors (Pty) Ltd; Respondent: Kenneth Leonardo Diedricks
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
2 March 2021
Case Number
1199/2019
Procedural Posture
Civil Appeal / Appeal From the Gauteng Division of the High Court, Johannesburg
Outcome
Appeal upheld; high court order set aside and replaced with dismissal of the application with costs.
Judges
Dambuza, Schippers, Plasket, Goosen, Mabindla-Boqwana
Legal Topics
Mandament Van Spolie, Restoration of Possession, Co Spoliator Liability, Specific Performance, Rule of Law, Urgent Application
Civil Procedure Land and Property Mandament Van Spolie Restoration of Possession Co Spoliator Liability Specific Performance Rule of Law Urgent Application

Case Brief

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Parties

Jose Aquino Monteiro

Appellant

Autoglen Motors (Pty) Ltd

Appellant

Kenneth Leonardo Diedricks

Respondent

Procedural Posture

Civil Appeal / Appeal From the Gauteng Division of the High Court, Johannesburg

Legal Issues

  1. 1 Whether a court can order a party to restore possession of goods of which it is not in possession.
  2. 2 Whether the mandament van spolie remedy is available against a party who is not in possession of the spoliated property.
  3. 3 Whether an agent of a company can be held liable as a co-spoliator.

Ratio Decidendi

The majority held that the mandament van spolie is a possessory remedy requiring restoration of possession by the party who committed the dispossession. However, an order for restoration cannot be granted where the party is no longer in possession and compliance is impossible. In this case, neither Autoglen nor Monteiro were in possession of the BMW motor vehicle at the time the order was sought, as it had been sold and delivered to a third party by Street Talk Trading. The high court's order requiring restoration was thus not capable of being carried into effect and was set aside. The majority further found that Monteiro acted only in a representative capacity for Street Talk Trading and...

Court Disposition

Appeal upheld; high court order set aside and replaced with dismissal of the application with costs.

Orders

  • The appeal is upheld with costs.
  • The order of the Gauteng Division of the High Court, Johannesburg is set aside and replaced with: 'The application is dismissed with costs.'