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                                                                                                                                                                                            HB 123-15

                                                                                                                                                                                          HC 1913-13

FLORA TODLANA NYONI

versus

NOMUSA NLEYA KHUMALO

HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 8 AND 18 JUNE 2015

Opposed application

Mr L. Sibanda for the applicant

Mr K. Ngwenya for the respondent

MAKONESE J:        This is an application for the confirmation or discharge of a provisional order granted by CHEDA (AJ) on 12 June 2012.  The interim relief granted by the court was in the following terms:

“(a)      The respondent and all those claiming through or under her immediately restore to applicant, a BMW 316, Model E46, registered under plate number ACD 3487 and the vehicle registration book thereof, within 24 hours of service of this order.

(b)        The deputy sheriff of Zimbabwe in Bulawayo is ordered to take possession of the vehicle and vehicle registration book thereof, and restore them to applicant’s possession, should the Respondent fail to do so within the stipulated period.”

            The respondent filed a Notice of opposition arguing that the applicant had not satisfied the requirements for the granting of an interdict.  The respondent alleged that it was not established that the applicant was in peaceful and undisturbed possession of the property and that she was not deprived of such possession unlawfully.  On 26 July 2012, the parties appeared before CHEDA (AJ) and the following order was granted by consent:

“The parties agree that the vehicle in issue, currently in the possession of the Deputy Sheriff is to be handed over to the applicant tomorrow the 27^th July 2012 who should retain it at a safe place.  The vehicle is not to be used or disposed of until the matter is finalized.”

Background

The applicant avers that she purchased a BMW motor vehicle, registration number ACD 3487 from the late Thabani Khumalo on 22 December 2011 for the sum of US$10 000.  The agreement was verbal but the seller confirmed recovering the money in cash by preparing a receipt.  The receipt was signed by the seller, and the applicant, and witnessed by Marvis Mpofu.

            The applicant states that shortly after purchasing the motor vehicle she left the country for the United Kingdom were she is currently based.  She avers further that she bought the car for use when she returns home to Zimbabwe.  Before leaving the country applicant requested Mr Khumalo and his customary wife (Marvis Mpofu) to look after the vehicle.  She reposed trust in Mr Khumalo and his wife.  In April 2012 applicant returned home and learnt that Mr Khumalo had passed away on 30 May 2012.  Marvis Mpofu requested to use the BMW motor vehicle during her period of bereavement as she needed transport.  While using the motor vehicle, the respondent with the assistance of some family members forcibly took the motor vehicle from Marvis Mpofu.  The applicant sought and obtained an order for spoliation from this court, which was granted on an urgent basis on 12 June 2012.

            The respondents’ version of events is that she was married to the late Thabani Khumalo.  The motor vehicle in question did not at any stage belong to the respondent but to the late Thabani Khumalo.  Respondent alleges that in early May 2012, the late Thabani Khumalo sent the motor vehicle to a mechanic for repairs as it had developed a mechanical fault.  She goes on to say that when the late Thabani Khumalo died she saw the BMW motor vehicle being driven by someone she did not know.  She sought the assistance of police officers to retrieve the motor vehicle from the person who was driving the vehicle at the time.  The vehicle was driven to the respondent’s home for safekeeping.  The respondent argues that the applicant was never in possession of the motor vehicle.  She cannot claim restoration of possession when she was never in possession of the vehicle.  The respondent denies that the late Thabani Khumalo sold the motor vehicle, even in the face of unequivocal evidence that he received the sum of US$10 000 as purchase price from the applicant.

            It is the respondent’s contention that there is a bona fide dispute of fact which can only be resolved by referring the matter for trial.

            In this dispute there are matters that are common cause.  These are they:

1. On 2 June 2012 the BMW motor vehicle registration number ACD 3487 was forcibly taken from Marvis Mpofu.
2. Marvis Mpofu confirms that the motor vehicle had been sold to applicant and there is proof of payment of the purchase price.
3. The motor vehicle is still registered in the names of Thabani Khumalo.
4. The respondent has refused to hand over the registration book in accordance with the order of this court and continues to defy the order of the court.
5. The respondent is not the registered owner of the motor vehicle, neither is she the executor of the estate of the late Thabani Khumalo.

Merits of the Application

The applicant is essentially seeking confirmation of the provisional order.  The requirements for the granting of a spoliation order were aptly captured in the case of Davis and Davis 1990 (2) ZLR 136 (H), particularly at page 141 where ADAM J emphasized that:

“Two allegations must be made and proved namely that the applicant was in peaceful and undisturbed possession of the property and (b) that the respondent deprived him of the possession forcibly or wrongfully against his consent.”

      These requirements are also canvassed in the case of Botha and Another v Barrett 1996 (2) ZLR 73 (S).  See also the case of Diana Farm (Pvt) Ltd v Madondo NO and Another 1998 (2) ZLR 410.

      In casu, there is sufficient proof that the applicant purchased the motor vehicle from Thabani Khumalo.  At the time of the motor vehicle was taken from Marvis Mpofu it has not been denied that she was holding the vehicle on behalf of the applicant.  It would seem that the respondent tried to capitalize on the fact that the late Thabani Mpofu had not ceded transfer to the applicant at the time of his death.  Quite clearly the correct procedure to have been adopted by the respondent is that the Executor should have laid a claim over the motor vehicle, if indeed it belongs to the estate.

      It is my view, that applicant was able to show that she was forcibly and unlawfully deprived of her possession.  The respondent’s version of events does not sound true.  There is no reason why applicant would concoct a story if needed she had not purchased the motor vehicle.

      I do not take the view that there is a triable issue that warrants the matter to be referred to trial.  The court can and must adopt a robust approach and determine the matter on the papers filed of record.  I am satisfied that the applicant has established the requirements of an interdict and is accordingly entitled to a spoliation order.

      Accordingly, it is ordered that:

1. The provisional order granted to applicant on 12 June 2012 be and is hereby confirmed.
2. The respondent is ordered to pay the costs of suit.

Webb, Low & Barry, applicant’s legal practitioners

Messrs Mabhikwa Hikwa and Nyathi, respondent’s legal practitioners