Sebokolodi v Sheriff of the High Court for the District of Ditsobotla and Others (2522/10) [2010] ZANWHC 30 (18 November 2010)

IN THE NORTH WEST HIGH COURT

MAFIKENG

CASE NO.: 2522/10

In the matter between:

SERAME KOLOPI ABEL SEBOKOLODI …......................................................APPLICANT

and

THE SHERIFF OF THE HIGH COURT FOR THE

DISTRICTOF DITSOBOTLA …...............................................................1ST RESPONDENT

ABRAM GAOGAKWE SEBOKOLODI …...............................................2ND RESPONDENT

ERNEST GOPOLANG SEBOKOLODI …...............................................3RD RESPONDENT

ANDRIES MOLAPONG SEBOKOLODI ….............................................4TH RESPONDENT

KAGISO NAANE ….................................................................................5TH RESPONDENT

DATE OF HEARING : 29 OCTOBER 2010

DATE OF JUDGMENT : 18 NOVEMBER 2010

FOR THE APPLICANT : ADV SWART

FOR THE RESPONDENTS : MR MONARE

JUDGMENT

LANDMAN J:

[1] This is the return day of a rule nisi relating to a mandament of spolie and a counter application to have the applicant committed for contempt of court.

[2] On 16 September 2004 Mokgoatlheng AJ (as he then was) granted a final order that the applicant “had a clear right to the moveable property”. The movable property consisted of four tyres, a battery, 2 ploughs, tractor implements, diesel, certain animals, motor vehicles, farming equipment. This order was made in proceedings against Abram, Ernest, Andries and Simon who share the surname Sebokolodi. See matter 126/04.

[3] On 8 August 2007 the four respondents issued summons under case number 1462/07 against the applicant claiming certain farming implements.

[4] The applicant filed two special pleas and a plea. The applicant failed to provide further particulars and as a result Makgale AJ struck out his defence and postponed the trial. The judgment was handed down on 21 December 2009.

[4] This matter was re-enrolled and served before Gutta AJ (as she then was) on 9 September 2010. She was asked to grant leave to appeal against the striking out of the defence. She declined to do so. She then granted an order relating to the merits. The essence of the order is that the applicant:

(a) is to deliver the following property the use thereof to be shared amongst the four respondents and himself on an equal 20% basis namely:

2 x Ford 500 tractors;

1 x Farming trailer registration CLK 902;

1 x 2 blade plough;

1 x 2 way soil cutting plough;

1 x 1974, 1200 Nissan LDV, registration PHD 180 NW

(b) is to pay R25100 to each of the respondents; and

(c) is to pay the costs.

[5] Three respondents went with the Sheriff who served the court order of 9 September 2010 on the applicant. The applicant, according to the respondents, voluntarily surrendered the movables. The applicant says he did not do so but he was persuaded by the Sheriff (first respondent) to give them to the respondents. Subsequently he had a change of heart and launched an application based on the mandament of spolie. A Rule Nisi was issued. The respondents, the Sheriff, three of the four respondents and another returned the implements pending the outcome of the return day.

[6] The Rule Nisi was served. It elicited an answer and a counter application. The counter application seeks to have the applicant committed for contempt of court.

[7] In my view the courter application cannot succeed. On the respondents’ own version the applicant complied with the order of 9 September 2010. That he thereafter brought a spoliation application is of no consequence as far as the application for contempt is concerned.

[8] The Rule Nisi cannot be confirmed. The order of 9 September 2010 prevails. The order of 9 September is not the subject of an application for leave to appeal or an application for rescission. Res judicata applies.

[9] It follows that the applicant must now comply with the court order of 9 September 2010. He has no defense. It should also be explained to him that the finding by Mokgoatlheng AJ in the 2004 did not finally establish the rights of the parties as it was made in the context of a mandament of spolie. It is the judgment, in the subsequent action 1462/07, which has determined these rights.

[10] As neither side has been successful I do not intend making any order as to costs.

[11] In the premises:

1. The Rule Nisi issued on 22 October 2010 is discharged.

2. The counter application is dismissed.

3. There is no order as to costs.

A A LANDMAN

JUDGE OF THE HIGH COURT

ATTORNEYS:

FOR THE APPLICANT : MOTLHABANI ATTORNEYS

FOR THE RESPONDENTS : S E MONARE & PARTNERS