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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, MTHATHA)

CASE NO: 2142/2020

In the matter between:

EKENE PRECIOUS OKOLI                                                              APPLICANT 

and

INVESTIGATING OFFICER: MR DYANI                                         1^ST RESPONDENT

THE HEAD OF DETECTIVES, MTHATHA:

(COL. NANI) N.O                                                                             2^ND RESPONDENT

THE MINISTER OF POLICE FOR

REPUBLIC OF SOUTH AFRICA                                                    3^RD RESPONDENT

JUDGMENT

MTSHABE AJ:

[1]       This is an urgent application for spoliation brought by the Applicant against the Respondents in which he seeks an order along the following terms:

[1.1]   “Directing that the matter be heard as one of urgency and to dispense with the forms and services provided for in the Uniform Rules of this Honourable Court and allowing the matter to proceed as an urgent application as is provided for in terms of Rule 6(12) of the Uniform Rules of Court and as per the directions of the Honourable Court;

[1.2]   That the Applicant’s failure to issue the required 72 hour notice prior the issuing of these proceedings be and is hereby condoned;

[1.3]   The Applicant’s failure to serve the copy of this application in accordance with the State Liability Act (the Act) as amended and that the service of this application be effected upon the local office of the State Attorney be condoned as being the effective and substantial service;

[1.4]   That, a Rule Nisi be issued with immediate effect, calling upon the first and second respondents to show cause, if any, on 21 day of July 2020 at 09h30 why and order in the following terms should not be granted: -

[1.4.1]           The first respondent be ordered and directed to release the Applicant’s phone, to wit I-phone with and IMEI number 356577105495839 as identified in annexure marked “L” ,“M”, “N”,”O” which I-phone was taken by the first respondent during the arrest of the Applicant on 12^th July 2020 to be released with immediate effect from the date of the above Honourable Court (my underlings. This is vague);

[1.4.2]           The first and second respondents be and are hereby restrained and interdicted from retaining the Applicant’s I-phone as identified in paragraph 1.4.1 above;

[1.4.3]           The conduct of the first and second respondents by retaining and storing the Applicant’s I-phone without valid search and seizure warrant as may be required by law be and is hereby declared unconstitutional, invalid, accordingly be set aside;

[1.4.4.]          That the first and second respondents are ordered forthwith to restore the Applicant’s property as identified in paragraph 1.4.1 with immediate effect from the date of this above Honourable Court; (my underlings. This is vague).

[1.4.5]           The respondents be ordered to pay the costs of this application on an attorney and client scale.

[1.4.6]           That the orders granted in terms of paragraphs 4.1, 4.2, 4.3, 4.4, 4,5 to operate as an interim interdict pending the confirmation or setting aside of the Rule Nisi on the 11^th August 2020.

[1.4.7]           That the court grants further and or alternative relief as it may deem appropriate”.

[2]  Mr Mbiko appeared on behalf of the Respondents and Mr Zozi appeared

         behalf of the Applicant.

[3] The respondents raised two points in limine, namely:

[3.1]               Lack of urgency;

[3.2]               Non-joinder.

[4]       I was requested by the respondents to first deal with the question of

Urgency and if I find that the matter is not urgent, I should struck it from the roll with costs. Furthermore, according to Mr Mbiko if I find that there is a non-joinder of other policeman who were present when the Applicant was arrested, I should postpone the application for the said policeman to be joined in the proceedings.

[5]       I gave a ruling to the effect that matter I urgent. I also dismissed non-joinder. Consequently, both points in limine were dismissed. I informed the parties that when I prepare the judgment, I shall give reasons for the ruling referred to above.

URGENCY OF THE MATTER

[6]       Mr Mbiko submitted that the Applicant has not complied with the Eastern Cape Rule 12 which deals with urgent applications. He stated that in terms of that Rule the Applicant ought to have presented the certificate of urgency to a judge. That judge would issue a directive whilst in chambers. The said rule reads as follows:

            “URGENT APPLICATIONS

[a]       In all applications brought other than in the ordinary course in terms of the Rules of Court, the legal practitioner who appears for the applicant must sign a certificate of urgency which is to be filed of record before the papers are placed before the Judge and in which the reasons for urgency are fully set out.

(b)       …

(c)       …

(d)       In all urgent applications in which it is sought to enroll the matter other than on a day normally reserved for the hearing of motion court matters:

(i)                The practitioner who appears for the applicant must sign certificate of urgency which is to be filed of record before the application papers are placed before the Judge and in which the reasons for urgency are fully set out. In this regard sufficient particularity is to be set out in the certificate for the question of urgency to be determined solely therefrom and without perusing the application papers.

(ii)              The certificate of urgency will be placed before the Judge who will make determinations solely from that certificate as to whether or not the matter is sufficiently urgent to be heard at any time other than the normal motion court hours.

(iii)            Should he/she determine that it is sufficiently urgent, he/she will then give directions as to the time and place, when and where the application is to be heard.”

[7]   Mr Mbiko seemingly relied on Rule 12(d) of the Joint Eastern Cape Rules for the submission that the Applicant ought to have brought the certificate of urgency before the Judge, before the matter can find its way in the motion court. The part of rule applies when the matter is to be heard on any day other than the motion court day.

[8]       On proper reading of Rule 12, it is my opinion that the certificate of urgency must be placed before a Judge in chambers when the matter is to be heard on any other day other the motion court day. If the matter is going to be heard on a motion court day that is Tuesday, there is no need for the certificate of urgency to be placed before the Judge in chambers. It is my opinion that it is sufficient that the certificate of urgency is placed in the court file. In this case the certificate of urgency was in the court file. The matter was to be heard on 21^st July 2020, which was a Tuesday. Accordingly, I find that the argument by Mr Mbiko that the certificate of urgency had to be placed before a Judge in chambers and a directive be obtained before the matter could be enrolled is misplaced.

[9]       Furthermore the Applicant in his founding affidavit has explained the urgency of the I-phone. He stated that he uses the I-phone for his business where he sells fish & chips. He also mentioned that he is using his I-phone for his banking as well as for his emails. The deprivation of the use of your property for the above use, I am of the view that it is urgent.

[10]    In the exercise of my discretion to condone non-compliance with the rules in urgent matters I condone the Applicant’s short service of the papers. I also condone the Applicant for his non-compliance with Rule 6(12) (b) of the Uniform rules of the court. The matter was and is urgent.

NON-JOINDER

[11]    The joinder of the parties in a cause of action is regulated by Rule 10 of the Uniform rules of court. The rule reads as follows:

            “Any number of person, each of whom has a claim, whether jointly, and severally, separately or in the alternative, may be joined as Plaintiffs in one action against the same defendant or defendants against whom any one or more of such persons proposing to join as plaintiffs would, if he brought a separate action, be entitled to bring such action, provided that the right to relief of persons proposing to joint as plaintiffs depends upon the determination of substantially the same question of law or fact which, if separate actions were instituted, would arise on such action, and provided that there may be a joinder conditionally upon the claim of any other Plaintiff failing.”

[12]    The test in joining a party is whether or not that party has a direct and substantial interest in the subject-matter of the action, that is, a legal interest in the subject matter of the litigation may be affected prejudicially  by the judgment of the court. (Judiciary Service Commissioner v Cape Bar Council 2013(1) SA 170 (SCA) 176H-I)

[13]    Mr Mbiko argued that the Police Officers who were present when the applicant was arrested on 12 July 2020, namely, Constable Ntisane, Sergeant Ntulwana, Sergeant Ndamse and Constable Mbopa should have been joined as respondents. He did not advance any argument what interest they have in the subject matter.

[14]    It is my opinion that the order that would be granted in favour of the applicant would not affect the Police Officers mentioned above. A person needs to be joined in the proceedings if he will be affected by the order and if he has an interest in the subject matter. This is not the case in these proceedings.

[15]    Accordingly, I find that the point in limine of non-joinder cannot carry the day. It is dismissed.

SPOLIATION

[16]    The Applicant’s case can be summarized as follows:

[16.1]            On 12 July 2020 several Policeman arrived at his premises at No. 5 Indwe Street, Southernwood, Mthatha. They wanted to arrest him because he has a domestic violence matter with his partner namely Nomfundo Mhlaba, who is also Police Officer at Ngangelizwe Police Station, Mthatha.

[17]    Upon the arrival of the Police at Southernwood applicant ran away from the arrest. Whilst he was running, according to him his I-phone was taken by the first Respondent. In paragraph 10 of the founding affidavit he states the following:

“The relief is sought on the basis that the first respondent during the course and the scope of the rest has unlawfully and illegally took my I-phone. I was vigorously assaulted by the first respondent when he arrested me at my place of abode. “

[18]    In paragraph 17 he states the following:

“Prior being taken into the back of the Police van Eric Ntulwana demanded both of my phones while I was handcuffed and both of my phones were taken (the Apple, I-phone) See annexure “L, M, N,O phone” as well as the Nokia small phone.

[19]    In paragraph 30 of the founding affidavit he states that before he was taken to court, he was given his Nokia Cell phone by the members of South Africa Police Services. He was further informed that there was no other phone which was recorded in the SAP 14 register except the Nokia phone.

[20]    The respondents deny that they took the applicant’s I-phone on 12 July 2020. Their case is that the said I-phone was taken by his partner or wife (Nomfundo Mhlaba) whilst he was running.

[21]    In the Police docket, which is annexure A, attached to the answering affidavit, appears an affidavit by Nomfundo Mhlaba. Of importance in the affidavit is the following:

            “After he was caught, I saw him sitting down and he was crying like a baby that the police shot him. Whilst the Police were busy with him in the yard that he was arrested in I notice his I-phone which I knew belonged to him. I picked the cell phone and I kept it in my bag. I did not show to any of the Police Officials that I have picked up his cell phone. There was no time as he was violent towards the Police. This cell phone I am talking about belongs to my husband Ekene Precious Okoli. I could easily identify because of the screen saver and the pouch, then I decided to keep it safe in my possession waiting for him or his attorney to collect it from me. But up to this date nobody has come to me between him and his attorney. This cell phone it fell from him while he was trying to escape from the Police. It is still in my possession I believe as his wife I can keep it safe for him.”

[21]    The affidavit I have referred to above by Nomfundo Mhlaba was attested and commissioned on 16^th July 2020.

[22]    Before the Applicant brought the application, his attorneys, on 15 July 2020 wrote a letter to the respondents requesting them to release the I-phone with immediate effect.

[23]    The response by the respondents is also attached to the papers and is dated 17 July 2020. It is attached by the applicant and it reads as follows:

“UNLAWFUL DISOPOSSESION OF PROPERTY: EKENE PRECIOUS OKOLI

(i)                With reference to your letter dated 15/07/2020;

(ii)              This is to respond to instructions to paragraph 4;

(iii)            Warrant officer Dyani indicated that never took cell phone from your client;

(iv)            Officer Dyani indicated that a cell phone that was taken from your client at Community Service Centre was given back to him and he signed for it;

(v)              We have leant that the second cell phone is with girlfriend of your client and we advice him to ask the phone from his girlfriend.

(vi)            We therefore request your office to withdraw application made at the High Court.”

[24]    In the answering affidavit the respondents deny categorically that they took the I-phone of the applicant.

[25]    In paragraph 3.18 of the answering affidavit respondents state the following:

            “I must mention after the arrest I have booked in his small Nokia cell-phone on SAPS 22. It was at such time that he was swearing to us and thereafter accused Constable Ntisane of having stolen his other cellphone, Apple I-phone. He told us that he was going to sue us every cent we have. We then focused our attention on finding the applicant’s I-phone. We contacted his wife, the complainant and enquire if she has not seen the cell phone. She informed us that while the applicant was running from the yard at Southernwood, the Apple I-phone fell, and she pickup/took from the ground and kept it safe as the wife. She said we must inform the applicant accordingly.”

[26]    The respondents continue to state in paragraph 3.19 as follows:

“We informed accordingly that his Apple I-phone was taken by his wife. We enquired whether to make arrangements for the phone to be collected from his wife, the complainant and it be booked to SAPS 24 and he said “NO”. He was asked to apologize to Constable Ntisane for calling him a thief. He refused to apologize. He instead threatened to sue us personally every cent we have.”

[27]    Nomfundo Mhlaba, the complainant and the partner of the applicant deposed to a confirmatory affidavit and in paragraph 6 she states the following:

            “I further confirm that I was present on 12 July 2020 when the applicant was arrested at his place of residence at Southernwood. The applicant was never assaulted. The Police never fired any gun shots. The applicant fell and injured himself while running and resisting arrest. The applicant’s cell phone fell while he was running and was picked and kept for safe keeping by myself as his wife. In paragraph 7 she states the following:

            “I lastly confirm that as from 13^th July 2020 the Applicant at all material times has been aware that his cell phone, an Apple I-phone was in my possession, as on the following day I informed the Police and him of same.”

[27]    To the answering affidavit the respondents have attached confirmatory affidavits of Ntisane, Ntulwane, Ndamase and Mbopa. These are the Police officers who were present at Southernwood when the applicant was arrested. All of them have stated in their confirmatory affidavits that the Apple I-phone of the applicant is in possession of his wife, the complainant.

[28]    The answering affidavit was served upon the Applicant’s attorneys on 27^th July 2020. The replying affidavit was served on the respondent’s attorneys on 30^th July 2020. In the replying affidavit the Applicant has not refuted the allegations in the answering affidavit as well as in the confirmatory affidavit that the I-phone is in possession of the applicant’s partner. During the argument Mr Zozi for the Applicant conceded that the Applicant has not refuted the allegations that the I-phone was in possession of the wife or partner.

[29]    I must also mention that the respondents informed the Applicant on 17^th July 2020 by letter which I referred to above that the I-phone was in possession of his wife. This was before the application was brought to court that is on 21 July 2020. Another letter was, which was received by the applicant’s attorneys on 20 July 2020 informed the applicant that the SAPS members never took the I-phone. The respondents informed the client that they are unable to restore possession of something that is not in their possession.

[30]    There is no explanation in the affidavits by the Applicant why he failed to contact his partner and enquire as to the truthfulness of the statement that the I-phone was in the possession of the wife. It must be noted that the allegations that the I-phone is in possession of the wife is stated in affidavits made on oath. I have no reason not to believe the respondent’s version that the I-phone as from 13^th July 2020 was in possession of the Applicant’s partner, Nomfundo Mhlaba.

WHAT TO PROVE-SPOLIATION PROCEEDINGS

[31]    The objects of spoliation are:

[31.1]    to restore the possession of the things possessed;

[31.2]    to put a stop to unlawful taking the law into own hands;

[31.3]   to protect the person who apparently has a possessory right;

[31.4]   to prevent disturbance of public peace.

[32]    This remedy includes restoration of possession and the performance of acts such as returning the I-phone to the Applicant, restoration status quo ante.

[33]    In order to be successful in spoliation the Applicant must allege and prove that he was in possession of the I-Phone and that he was wrongly deprived of the I-phone without his consent.

[34]    In order to succeed with an application for spoliation an Applicant must allege and prove that he or she was in a peaceful and undisturbed possession of the property or right. (Impala Water Users Association and Lourens NO 2008(2) SA 495 (SCA); Kgosana and Another v Otto 1991(2) SA 113(W).

[35]    In the Law of South Africa (LAWSA) VOL. 27 at para 94 it is stated that spoliation order or mandament van spolie is available where:

“(a)     A person has been deprived unlawfully of the whole or part of his or her possession of movables or immovable;

(b)       A joint possessor has been deprived unlawfully of his or her co- possession by his or her partner taking over exclusive control of the thing held in joint possession;

(c)       A person has been deprived unlawfully of his or her quasi possession of a servitude right;

(d)       A person has been deprived unlawfully of his or her quasi possession of other incorporeal rights.

[36]    In the matter of Ivanov v North West Gambling Board and other 2002(6) SA 67 SCA at para 19 the court stated the following:

            “In my view the submission on behalf of the respondents is devoid of merit. The historical background and the general principles underlying the mandament van spolie are well established. Spoliation is the wrongful deprivation of another’s right of possession. The aim of spoliation is to prevent self-help. It seeks to prevent people from taking the law into their own hands. An Applicant upon proof of two requirements is entitled to a mandament van spolie restoring the status quo ante. The first is proof that the applicant was in possession of the spoliated thing. The cause for spoliation is irrelevant - that is why possession by a thief is protected. The second is the wrongful deprivation of possession. The fact that possession is wrongful, or illegal is irrelevant, as that would go to the merits of dispute.”

[37]    In Nino Bonino v De Lange 1906 TS 120 at 122 Innes CJ as he then was enunciated the principle underlying the mandament van spolie as follows:

            “It is a fundamental principle that no man is allowed to take the law into his own hands; no one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property, whether movable or immovable. If he does so, the court will summarily restore the status quo ante, and will do that as a preliminary to any inquiry or investigation into the merits of the dispute.”

[38]    In Street Pole Ads Durban (Pty) Ltd & Another v Ethekwini Municipality 2008(5) SA 290(SCA) at para 15 the court stated the following:

            “This argument invokes the principle that an offending respondent in a spoliation application is generally not allowed to contest the spoliated applicant’s title to the property. That is because good title is irrelevant: the claim to spoliatory relief arises solely from an unprocedural deprivation of possession. There is a qualification, however, if the applicant goes further and claims a substantive right to possession, whether based on little of ownership or on contract. In that case the respondent may answer such additional claim of right and may demonstrate, if he can, that applicant does not have the right to possession which it claims. This is because such an applicant in effect forces and investigation of the issues relevant to the further relief he claimed. Once he does this, the respondent’s defence in regard thereto has to be considered.”

CONCLUSION

[39]    The applicant has filed to prove that he was unlawfully deprived of the possession of his I-phone by the respondents. The applicant should have enquired from his partner the whereabouts of his I-phone. His partner has on affidavit stated that the I-phone is with her. She stated that 16^th July 2020 when she opened a case with the Police. She also stated that she told the Applicant that the I-phone is with her. This is not refuted in the replying affidavit.

[39]    Accordingly, I cannot grant an order that the respondents must return the item which is not in their possession. Accordingly, the application must fail with costs.

[40]    I make the following order:

(1)       The application is dismissed.

(2        The applicant is ordered to pay the costs of the application on a party and party scale.

                                                ___________________________

                                                N.R. MTSHABE

                        ACTING JUDGE OF THE HIGH COURT,

EASTERN CAPE LOCAL DIVISION, MTHATHA

 Heard on:    3 September 2020

 Delivered on: 29 September 2020

APPEARANCE:

FOR THE APPLICANT:               MR A. ZOZI

INSTRUCTED BY:                       AYANDA ZOZI ATTORNEYS

                                                     ATTORNEYS FOR THE DEFENDANT

MTHATHA

FOR THE RESPONDENT:           ADV. B.N. MBIKO

INSTRUCTED BY:                        THE STATE ATTORNEY

                                                      MTHATHA

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