Mamela Taxi Rank (Pty) Ltd v Mamela Taxi Association and Others (1617/09) [2010] ZAECMHC 15 (12 February 2010)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE HIGH COURT: MTHATHA)

CASE NO: 1617/09

In the matter between:

MAMELA TAXI RANK (PTY) LTD Applicant

and

MAMELA TAXI ASSOCIATION 1st Respondent

NDUMISO AARON GODLOZA 2nd Respondent

NONTSIKELELO MESILANE 3rd Respondent

FIRST NATIONAL BANK 4th Respondent

_____________________________________________________________­

JUDGMENT

NHLANGULELA J:

[1] As I understand the relief which is set out in the Rule Nisi incorporating an interim order dated 15 September 2009 as well as the founding affidavit of the applicant, this application concerns mandament van spolie.

[2] The law on mandament van spolie is trite; for the applicant to succeed it should prove the following elements:

(a) That the applicant was in possession of the money (R150 000,00); and

(b) That the respondent deprived it of the possession forcibly or wrongfully against its consent.

See: Yeko v Qana 1973 (4) SA 735 (A) at 739.

[3] The application was brought on urgency in terms of Rule 6 (12) of the rules of this Court and in a form of interdictory relief. Therefore, on the return day, the applicant must further prove the existence of the elements of interdict; which are:

(a) That the applicant has a right to the relief sought.

(b) There is an injury actually committed or there is a well grounded apprehension of irreparable harm if the interim relief is not confirmed.

(c) There is no other similar or adequate protection by any other ordinary remedy.

On these requisites for a final interdict see Herbstein & Van Winsen: “The Civil Practice Of Tthe High Courts,” 5th Ed, Juta at 1456.

[4] Some preliminary matters have been raised by the parties both on the affidavits and heads of argument. Those are that the application is not urgent in nature, applicant did not give authority for the prosecution of the application and that the applicant did not disclose a cause of action. Those points were argued by Mr Msindo, and Mr Ntayiya the legal representatives for the respondents and the applicant respectively. I deal first with these points below:

[5] Urgency:

The thrust of the submission on this objection by Mr Msindo lies in the fact that the thing sought to be recovered is money, a sum of R150 000,00. Based on that, he submitted that since it is the financial interest of the applicant that is being pursued in this application a remedy by means of an interdict is not competent in law. The case of Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd & Another 1981 (4) SA 108 (C) was referred to the Court. In review proceedings the applicant in Aroma Inn had complained that if the hearing of its application was not given preference it might lose profits. The court had been asked to declare that the decision of the Minister refusing the grant of a grocer’s wine licence to the applicant was unlawful. The court held that the application was not so urgent; it should have been enrolled for hearing in the court for semi-urgent applications. The nature of the relief sought in Aroma Inn is distinguished from the relief sought in this application. Here the remedy sought is a spoliatory relief. Jansen J in Runsin Properties (Pty) Ltd v Ferreira 1982 (1) SA 658 (SE) at 670 said that following:

“ The essence of the remedy by way of spoliation is that is a robust one.”

In Mangala v Mangala 1967 (2) SA 451 (E) at 416 it is also stated by Munnik J that the remedy is a speedy one. In Le Riche v PSP Properties CC 2005 (3) SA 189 (C) at 198E-F. J stated that such a relief may not be delayed.

These dicta are correct more particularly because they accord with the common law position.

Therefore,I find that the remedy of spoliation sought by way of urgency in the application was pursued correctly. I am also satisfied that paragraph 17 of the founding affidavit sets out facts indicating that the application is urgent. There it is stated that

the money will be dissipated if it is not returned to the applicant. Evidence is that the money is kept “frozen” in the account of the first respondent. In that way the application complies with the practice manual of our division that urgency should be alleged and explained in a separate paragraph of the founding affidavit. The absence of the subtitle “Urgency” above the said paragraph 17 is not an indication of any irregularity.

[6] Authority to bring the application:

Mr Msindo submitted that the application should be dismissed by reason that Mr Mbulelo Boya, the deponent of the founding affidavit, failed to produce a valid written resolution proving his authority to act for the applicant. In simple terms this submission means to the respondents that the applicant is not properly before the court.

[7] Mr Boya, an adult male person, stated in the founding affidavit that he is the director of the applicant and that he was duly authorized by the applicant to depose to the founding affidavit. That he is the director of the applicant is not in dispute. Further that the applicant is an incorporated body in terms of the Companies Act, Act No. 63 of 1973 is not in dispute. Mr Boya

did not annex to the founding affidavit the written resolution of the applicant, which omission triggered the attack by the respondents

that Mr Boya had no authority of the applicant to depose in the founding affidavit. As to how authority should be set out on affidavit, the following appears in the case of Mall (Cape) (Pty) Ltd v Merino Ko-operative Bpk 1957 (2) SA 347 (C) at 351 E-G:

“ The best evidence that the proceedings have been properly authorized would be provided by an affidavit made by an official of the company annexing a copy of the resolution but I do not consider that that form of proof is necessary in every case. Each case must be considered on its own merits and the Court must decide whether enough has been placed before it to warrant the conclusion that it is the applicant which is litigating and not some unauthorized person on its behalf. Where, as in the present case, the respondent has offered no evidence at all to suggest that the applicant is not properly before the Court, then I consider that a minimum of evidence will be required from the applicant.”

[8] In my view, a failure to annex a written resolution on the founding affidavit is not per se an irregularity. The minimum evidence that Mr Boya was duly authorized by the applicant is adequate proof of authority; but this may be disputed on the answering affidavit in which event the deponent must put up a resolution of the company to prove authority. The situation here is somewhat strange; and its peculiarity is a cause for in depth scrutiny of the opposition to the relief sought.

[9] In response to the application Mr Lindela Tafeni, the second and third respondents, Mr Sapho Sirenya and Mr Andile Tafeni filed answering affidavits. In essence these deponents challenged Mr Boya to prove authority pertinently. Mr Tafeni stated in the answering affidavit that he was deposing thereto for and on behalf of the first respondent. The remaining respondents including Mr Sirenya and Mr A. Tafeni filed affidavits confirming that of Mr Tafeni. It bears mentioning that the applicant does not seek an order of spoliation against the second and third respondents but an order that they pay the costs of the application because they were

alleged to have facilitated the withdrawal of R150 000,00 cheque of the applicant from its bank account and deposited it into the bank account of the first respondent. These allegations were admitted by the respondents.

[10] It appears that Mr L. Tafeni did not quite succeed in placing the first respondent before the court to oppose the application. To my mind the first and fourth respondents did not file opposing affidavits. I state the reasons in the paragraphs that follow.

[11] The first respondent is described as Mamela Taxi Association, a business entity. According to Mr L. Tafeni the members of the first respondent are about 300 people including Mr Boya and Mr M. Sirenya who filed a confirmatory affidavit on behalf of the applicant. The difference between the first respondent and applicant is that one is an unincorporated association and the other

is a body kept corporate in terms of the Companies Act. The first respondent is a universitas. Herbesterin & Van Winsen at page 175 define a universitas in the following manner:

“A universitas is a legal fiction, an aggregation of individuals forming a persona or entity having the capacity acquiring rights and incurring obligations to as great an extent as a human being. The main characteristics of a universitas are the capacity to acquire certain rights as apart from the rights of the individuals forming it, and perpetual succession…”

Further those authorities state that a universitas can sue or be sued in its own name duly represented by its official in terms of its constitution. In this case Mr L. Tafeni did not disclose a constitution of the first respondent stating that power to litigate on behalf of the first respondent was given to him. So, his authority is not proved and the answering affidavit he filed cannot be the affidavit of the first respondent purely on his mere ipse dixit. He stated that the other members of the first respondent have passed a resolution authorising him to depose to an answering affidavit.

However, Mr Boya and Mr M. Tafeni do not appear to have been part of a meeting that passed a resolution on 14 September 2009. Such a resolution is invalid in my view. Consequently, it cannot be said that the first respondent had filed an opposing affidavit.

[12] The sum of R150 000,00 that was despoiled by the respondents, except the fourth respondent, and placed in the account of the first respondent which is kept by the respondent is protected by the interim order by Sangoni J by means of freezing the account to ensure that it is not dissipated. These facts are common cause. Consequently, I do not see the reason why the final relief should not be granted if the remedy of spoliation is proved in the founding affidavit. I next deal with the objection that the applicant’s papers lack a cause of action.

[13] The cause of action:

I have already stated that the remedy sought is one of mandament van spolie. This is a possessory remedy which does not permit consideration of disputes of rights which are set out in the answering affidavits that have been filed. What emerges very clearly from the founding affidavit, and confirmed by the respondents in their answering

affidavits, are the following admitted facts:

The applicant was in possession of a sum of R150 000,00.

The second and third respondents withdrew that money and placed it into the bank account of the first respondent with the fourth respondent.

The applicant did not consent to the dispossession. That is, no resolution of the applicant had been obtained authorizing the second and third respondents to withdraw the money.

The first respondent is one entity and the applicant a completely different entity which has a bank account at Standard Bank.

The second and third respondents are not in possession of the loot.

[14] The answering affidavits raised some dispute of facts. The respondents aver that the applicant was established by the first respondent in as much as the members of one entity are also the members of the other. They contend that, therefore, the first respondent has a right to keep the R150 000,00. They aver further that there is fear that if the money is returned to the applicant Mr Boya will cease an opportunity to steal it from the applicant’s back account just as he had attempted to do so before the money was withdrawn. The remedy of spoliation cannot be frustrated by a claim of rights. That much is stated eloquently by Dlodlo J in the case of Malan v Green Valley Farm Portion 7 Holt Hill 434 CC 2007 (5) SA 114 (E) at 123 where he said:

“ [23] The essential characteristics of a possessory remedy is that the legal process whereby the possession of the property is protected, is kept completely separate from the process whereby a party’s right to ownership or other right in dispute are determined. In a spoliation action the rule is spoliatus ante omnia restituendus est, therefore a Court hearing such an application does not concern itself with the rights of the parties whatever they may have before the spoliation took place. The Court merely enquires whether or not there has been a spoliation and if there has been, it restores the status quo ante the property must be restored to the applicant, meaning ‘dat die applikand herstel word in die volle besit, gebruik en genot van sy goed, soos hy did voor die spoliasie gehad het.’ (See Van Rooyen en ‘n Ander v Burger 1960 (4) SA 356 (O); Burger v Van Rooyen en ‘n Ander 1961 (1) SA 159 (O) at 161.)”

Consequently, a cause of action was made out in the founding affidavit.

[15] The interdict:

It was submitted further that the applicant failed to prove the existence of a clear right to the relief sough, that there will be harm committed to it if the money is kept in the bank account of the first respondent and that there is no other similar or adequate protection by any other ordinary remedy. I have already dealt with the first two issues and it is not necessary to repeat

that exercise. On the third issue it was contended on behalf of the respondents that the applicant should have issued summons to recover the R150 000,00 as damages. I do not agree because the money is still being kept by the fourth respondent as it is.

[16] The first respondent cannot be mulcted in costs because it is a business entity that was abused by the second and third respondents. The second and third respondents should bear the costs of this application.

[17] In the result the following order shall issue:

1. The fourth respondent, FNB, be and is hereby ordered to unfreez the account of the first respondent being Account Number 62016342678 and immediately withdraw from it a sum of R150 000,00 (one hundred and fifty thousand rand), issue a bank guaranteed cheque payable to the applicant and then hand it over to the Sheriff of this Court.

2. The Sheriff of this Court be and is hereby ordered and directed to deposit the cheque aforementioned into the bank account of the applicant at Standard Bank, Mthatha West, Account Number 08 133 893 7.

3. Miss Nombulelo Boya, Mhlangabezi Sirenya, Ndumiso A, Godloza, Ms Nontsikelelo Mesilane and any other member of the applicant be and are hereby interdicted and restrained from withdrawing and any other way deal with the said account of the applicant until a properly made resolution of the applicant directs hoe and by whom the account shall be handled.

4. The second and third respondents to pay costs this application.

_____________________________

Z.M. NHLANGULELA

JUDGE OF THE HIGH COURT

DATE HEARD : 11 FEBRUARY 2010

JUDGMENT DELIVERED ON : 12 FEBRUARY 2010

For the applicant : Mr F. Ntayiya of

Fikile Ntayiya & Associates

MTHATHA

For the respondents : Mr V. Msindo of

V.V. Msindo & AssociateS