Maseko v Thwala And Anotherther (23 of 2003) [2005] SZSC 17 (11 November 2005)

Summary

Application for an order of mandarnent van spolie - return of cattle seized by respondent in execution of a "fine" imposed by a Chief for not observing the tenets of a chastity ritual -nature of the remedy discussed - evidential burden on the respondent that deprivation of possession was authorised and lawful - failure to do so - appeal upheld.

ritual of the throwing of the Uracwasho tassels at his homestead, inasmuch as the female

members of his family failed to wear such tasseis.

[6] The appellant alleged that the 1^st respondent was not the Chief of his area and had no authority over him. The second respondent was the only person who had such authority and it was common cause that he was not present when the fine was imposed. Appellant also contended that a mere failure to wear the tassels did not constitute a breach of the Umcwasho rite, neither was the failure to do so punishable by the imposition of a fine and seizing cattle an offender from offender for such breach.

[7] The ratio advanced by the judge a quo for dismissing the application because the appellant had failed to set out sufficient allegations to support his claim for relief was in supportable. Mr Mabila for the respondents very fairly and correctly conceded as much.

[8] It is well established law that all that a person despoiled has to prove is that he had possession of the kind that warrants protection and that he was illegally ousted from such possession. The statement by Innes C.J. in Nino Bonino v. de Lauge 1906 T.S. - 120 that: "spoliation is any illicit deprivation of another of the right of possession" has been repeatedly endorsed by Courts in Southern Africa. See e.g. van Eck, NO and Another v. Etna Stores 1947 (2) SA 984 (A) at 1000; Willowvale Estates and A no. v. Bryanmore Estates Ltd 1990 (3) S.A. 954 (W) at 957; Burnham v. Neumeyer 1917 T.P.D. 630 at 633. It is also clear that an application for a spoliation order can be entertained even if it is alleged that the spoliator was purporting to act in terms of authority conferred by law. An abuse of such power equates to taking the law into its own hands. See van Ecks case above, op cit. where the court says the following:

"But it was further argued that, even so, a inandament van spolie was not the correct

remedy. That remedy has been dealt with in this Court in the recent case of Nienaber

v. Stuckey 1946 A.D. 1049 where the statement, adopted by

INNES, C.J., in Nino Bonino v. de Lange (1906, T.S. 120) from Leyser, was

approved:

"Spoliation is any illicit deprivation of another of the right of possession."

I can see no ground for holding that spoliation proceedings should not be available in a case such as the present. It is objected that this form of proceedings is only given where a man has taken the law into his own hands; but even assuming, though without deciding, that this contention is correct, that, as I have found above, is exactly what the appellants did in the present case - just as surely as if, on Hargovan's refusal or failure to deliver it, they had taken the rice without any pretext that they were acting under the Regulation. For that pretext cannot avail them. The case of Sillo v. Naude (1929, A.D. 21) is beside the point. There the respondent was not taking the law into his own hands; not only did he profess to act in terms of the Pound Ordinance, but he was in fact doing so. Here the appellants were taking the law into their own hands and were not acting in terms of any statutory authority

For the above reasons I come to the conclusion that not only was the seizure of this rice illegal but that the order of the Court a quo was rightly made."

[9] As indicated above the seizure of the appellants cattle was prima facie an illicit deprivation of his possession of his cattle. The respondents were therefore obliged to prove that in seizing the cattle they acted in pursuance of an authority lawfully conferred on them. This they clearly failed to do. Mr Mabila himself identified six issues on which there were material disputes of fact which were unresolved, all challenging the legality of the respondents' conduct. Moreover, no independent or any expert evidence was adduced to support the ipse dixit of the respondents that they acted in terms of a recently introduced customary injunction or that they were empowered by law or custom to seize his cattle as a fine. No statutory provision or other enactment which sanctioned such an invasion of the property rights of a citizen was produced in evidence or otherwise.

[1.0J It follows that a clear, indeed unanswerable case had been made out for the Court to grant the relief sought. It follows that the appeal is upheld with costs, these costs are to be paid jointly and severally by the respondents. The order of the Court a quo dismissing the application with costs is set aside. In its place the following order is granted: -

wrongfully seized by the 1^st Respondent and presently in the possession of the 2^nd Respondent, together with such progeny as may have been bom to them since they were seized on the 12^th of February 2003.

2. The Respondents are ordered joindy and severally - the one paying the other to be absolved - to pay the costs of the appeal."