Rasikhinya v District Senior Manager Department of Education Limpopo Province and Others (85/2015) [2015] ZALMPTHC 5 (17 September 2015)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(Functioning as LIMPOPO LOCAL DIVISION, THOHOYANDOU)

CASE NO: 85/2015

DATE: 17 SEPTEMBER 2016

In the matter between;

MATEVHUTEVHU MICHAEL RASIKHINYA.............................................................APPLICANT

And

DISTRICT SENIOR MANAGER DEPARTMENT

OF EDUCATION LIMPOPO PROVINCE.....................................................FIRST RESPONDENT

MEC DEPARTMENT OF EDUCATION

LIMPOPO PROVINCE...............................................................................SECOND RESPONDENT

THE HEAD OF DEPARTMENT DEPARTMENT OF EDUCATION

LIMPOPO PROVINCE...................................................................................THIRD RESPONDENT

JUDGMENT

COLLIS AJ:

INTRODUCTION

[1] In this application the applicant is seeking an order declaring the grounding of motor vehicle with registration letters and numbers B…. 4…. L…. by the first respondent on 29 August 2013, to be unlawful. The applicant further seeks an order directing the first respondent to release the said vehicle to the applicant within five

(5) days of the granting of this order.

BACKGROUND

[2] The applicant is a former employee of the third respondent. Prior to him resigning on 31 July 2014, he held the position of Deputy Manager: Governance Nzhelele East Circuit.

[3] During 2009, the applicant qualified for a subsidised motor vehicle and took possession of a motor vehicle, being the subject matter of these proceedings, in December 2009.

[4] In term® of the subsidy scheme1 regulating the use of the motor vehicle, the applicant was required to ensure that the vehicle is licensed at the Local Licensing Authority and that he paid the vehicle’s monthly redemption instalments to the service provider over a period of forty eight (48) months. For the duration of the

payment period the service provider shall remain the titleholder of the subsidised motor vehicle,

[5] Insofar as the usage of the subsidised motor vehicle was concerned; the applicant was required to submit log sheets on a monthly basis setting out the kilometres travelled for official trips and those travelled for private trips. The scheme provided a maximum mileage of 48 000 kilometres for private trips over the four (4) year period and a minimum of 112 000 kilometres for official trips.*

APPLICANT’S GROUNDS FOR HIS RELIEF SOUGHT

[6] On 29 August 2013, the motor vehicle governed by the scheme was taken from the applicant by officials employed by the first respondent, as he had failed to submit log sheets for a few months. The applicant then immediately prepared the outstanding log sheets and handed it in by the end of September 2013.

[7] Despite having submitted the outstanding log sheets, the motor vehicle was not returned to him and he has been deprived of the motor vehicle up until the date that he had tendered his resignation.

[8] The applicant contends that the failure on the part of the first respondent to return the motor vehicle to him, deprived him of the use of the motor vehicle and that this act resulted in a withdrawal of the subsidised motor vehicle from the scheme prior to the expiry by effluxion of time or the motor vehicle having travelled a distance of 112 000 official kilometres over the forty eight month period.

[9] The applicant further alleges that by virtue of him participating in the subsidised scheme, he became the owner of the motor vehicle as he was responsible for the licensing of the motor vehicle. In the alternative the applicant alleges, that the third respondent had dispossessed him of the motor vehicle, In that the applicant had agreed to a deduction of R 87 657.60 to be made from his pension gratuity, in exchange for the vehicle to be returned to him upon his resignation; however the third respondent had failed to make such a deduction and payment.

RESPONDENTS GROUNDS IN OPPOSITION

[10] The respondents averred that the grounding of the subsidised motor vehicle came as a result of the applicant failing to submit log sheets from July 2012 to August 2013,

[11] Furthermore, the respondents contended that the applicant had failed to follow the prescribed procedure in that most of the kilometres that he had claimed as official as per his log sheets were found to be without supporting documents and had to be allocated as private trips undertaken by him. In this regard they had raised queries with him and as per annexure NGR2a-b‘ annexed to the answering affidavit the applicant had agreed that same should be allocated as private trips undertaken by him.3

[12] They denied that the subsidised motor vehicle in question was governed by Annexure ‘FA3’ annexed to the founding affidavit as this policy only came into operation on 20 September 2012. The respondents averred that the motor vehide instead was subject to the Government Subsidised Motor Transport Scheme, annexed as annexure ‘NGR1a-e’ to the answering affidavit,[1]

[13] The respondents further allege that at the time that the motor vehicle was grounded, the applicant had only travelled 57 214 kilometres as official trips whereas his total kilometres travelled had already exceeded the 160 000 maximum kilometres permissible in terms of the scheme. It was standing at 242117 kilometres at the time,[2] it is for this reason that they contend that they were entitled to withdraw the vehicle from the scheme and demanded payment for the monetary value of the outstanding official kilometres before transfer of ownership could take place.

REI VINDICATIO

[14] As mentioned in paragraph 9 supra, the applicant places reliance on the legal remedy of rei vindicatio, for the return of the subsidised vehicle. In order for the applicant to succeed on the basis of rei vindicatio the following elements need to be present and proved by the applicant:

(a) ownership of the thing (whether movable or immovable)6 and

(b) that the respondent was in possession of the property when the proceedings were instituted,[3]

[15] As previously mentioned the applicant alleges that he was the owner of the subsidised vehicle, as a he was required to register the vehicle with the local licensing authority. In this regard, the applicant places reliance on the provisions of paragraph 1.4.3 of 'FA3', annexed to the founding affidavit. The same policy subsidy scheme as per paragraph 1.9.2.3, however stipulates; 'ownership of the vehicle will be transferred to the officer only on settlement of the outstanding balance determined by the service provide

(titfeholder), the expired prescribed period and on completion of assigned official kilometres as determined by the state. The service provider will advise the Department of Transport three months prior to expiry of the contract to verify compliance with other obligations."

[16] Paragraph 1.9.2.4 of the same policy further provides; “In the event where the official fail to cover 70% of the split (112 000km), the transfer of ownership of the vehicle will be put on hold by the service provider; and such ownership will only be passed over once the outstanding kilometres have been covered.”

[17] Having regard to the policy subsidy scheme relied upon by the applicant, i.e. annexure ‘FA3’ to the founding affidavit,

transfer of ownership of the subsidised vehicle was always going to be deferred to take place either upon expiry of the scheme period and upon all other obligations having been met by the official. Thus, where for example an official had failed to cover the permissible kilometres, in terms of the policy, such failure would constitute a breach of the terms of the policy and would in all likelihood result in the withdrawal of the motor vehicle from the scheme.

[18] On the applicant's own admission he therefore was not the owner of the subsidised motor vehicle at the time when the motor vehicle was grounded, as the subsidised policy scheme would only have expired some few months later i.e.

December 2013 upon which date transfer of the vehicle onto his name could potentially have taken place.

[19] It is for this reason, that the applicant cannot successfully place reliance on the r&i vindicatio to restore his possession.

MANDAMENTEN VAN SPOLIE

[20J In the alternative the applicant has alleged that the respondents had dispossessed him of the vehicle when they refused to return the vehicle to him in exchange for the payment of R 87 657.60 demanded by them. This demand he alleges had taken place during January 2015- Annexure 'FA5' to the founding affidavit however depicts that this demand for payment was made as early as March 2014.

[21] In order to obtain a spoliation order, Iwo allegations must be made and proved:

(a) that the applicant was in possession of the property; and

(b) that the respondent deprived him of the possession forcibly or wrongfully against his consent.[4]

All that the spofolus has to prove, is possession of any kind which warrants the protection accorded by the remedy.

[22] The very essence of the remedy against spoliation is that the possession enjoyed by the party who asks for the spoliation order

must be established. All that

[26] The applicant in his founding affidavit failed to set out the circumstances which brought about the inordinate delay of eighteen

(18) months in launching the application. In fact his explanations merely concern his attempts to secure the release of the vehicle from the respondent, it was only when his efforts failed that he decided to approach the court for relief. His failure to seek relief from the court immediately after dispossession constituted acquiescence on his part to the dispossession which has taken place.

[27] For this reason the applicant cannot succeed on the basis of mandamenten van spolie.

ORDER

[28] In the result the following order is made:

28.1 The application is dismissed with costs.

C. J. COLLIS

ACTING JUDGE GAUTENG DIVISION PRETORIA

APPEARANCES:

FOR APPLICANT: MR, V. MATH IVH A

INSTRUCTED BY: MATHIVHA ATTORNEYS FOR RESPONDENTS: ADV. F. MUNERI

INSTRUCTED BY: THE STATE ATTORNEYS THOHOYANDOU

DATE OF HEARING: 22 JUNE 2015 DATE OF JUDGMENT: 17 SEPTEMBER 2015

See jn this reggrd Answering affidavit paragraph 7.8

[2] Goudlnl Chrome (Pty) Ltd v MCC Contracts (Pty) 1993 (1) SA 77 (A) 62

[3] Chetty v Naidoo 1974 (3) SA 13 (A)

4 Nino Bonino v De Lange 1906 TS 120 at 122