MUTANGA v MUTANGA 2013 (2) ZLR 103 (H)

Flynote

Practice and procedure — parties — "dirty hands" — principle of — spoliation proceedings — self help — party taking law into own hands — possessor in unlawful possession of vehicle — other party may not seize possession of the vehicle otherwise than in accordance with due process of the law — D party may not plead in aid "dirty hands" principle in such circumstances

Property and real rights — possession — elements — direct and indirect possession — distinction — agent holding property for limited purpose — not a possessor

Property and real rights — spoliation order — requirements — who is entitled to — agent of possessor — not entitled to remedy on his own behalf — indirect possessor entitled to remedy — defences — possessor's possession illegal — not a defence — gives no right to spoliator to take possession

Headnote

For the purpose of a spoliation order (mandament van spolie) both a direct and an indirect possessor are entitled to avail themselves of the order, aslong as they can show that they had the intention to derive some benefit from holding the thing. Physical possession of the thing can, therefore, be attained through another person.

In seeking a spoliation order, the applicant relied upon facts which were substantially common cause. The papers disclosed that the parties were married but separated pending a divorce. The applicant had retained possession of a vehicle which he kept at his house while the respondent, his wife, retained in her possession another vehicle. On the day in question, the applicant had sent his girl friend in his car to the shops to buy groceries. Shortly thereafter, the respondent arrived at the same shops in her vehicle. Upon seeing the applicant's vehicle parked there, she took possession of it. While some dispute existed as to the precise manner in which she did so, it was clear that the girl friend was not able to do anything about it, other than to inform the applicant as to what had happened upon her return to his house. In defending the applicant's claim for a spoliation order in respect of his vehicle, the respondent raised two preliminary points. Firstly, the respondent submitted that as the vehicle was in the possession of the girl friend when she recovered it, it was the girl friend who should have been the applicant. Secondly, and in any event, the girl friend should not have been driving the vehicle at all because it was subject to a temporary import permit (TIP) which required that it be kept at the respondent's address and not used by a Zimbabwean resident. It was argued that the applicant had also contravened the law by failing to renew the TIP, thereby depriving fiscus of revenue. The girlfriend's possession was tainted with illegality and could not be peaceful and undisturbed possession. In view of these irregularities, the respondent submitted that applicant's case fell foul of the "dirty hands" principle, depriving him of the right to the relief he sought. On the merits, the respondent submitted that she did not take the law into her own hands because, so she said, the girl friend had handed her the car keys voluntarily. This allegation was disputed. However, even on the respondent's version of the facts, it could not be said that the taking of the keys was consensual.

Held, that the respondent's first preliminary point failed. An agent who holds the property for a limited purpose and has no interest in the property which he holds for his principal, or who derives no benefit from holding it, is not entitled to claim the relief of a mandament van spolie, which is a remedy available to a possessor; it does not extend to a mere detentor. A detentor who does not have the intention to hold the thing in question for his own benefit and not for another is indeed merely a detentor. The girl friend had possession of the vehicle at the shops, but only on behalf of the applicant. As such she had mere detention of it. The true possessor was the applicant and he was, therefore, entitled to bring spoliation proceedings.

Held, further, granting the order that the respondent's second preliminary point also failed. She did not have clean "hands" herself. No matter how unlawful was the applicant's possession of the vehicle, the respondent had no right to take the law into her own hands and to take possession herself. No matter how unlawful a person's possession may be, his possession may not be interfered with except through due process of law.