THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 1199/2019

In the matter between:
JOSE AQUINO MONTEIRO

FIRST APPELLANT
AUTOGLEN MOTORS (PTY) LTD
SECOND APPELLANT
and
KENNETH LEONARDO DIEDRICKS

RESPONDENT

Neutral citation: Monteiro and Another v Diedricks (Case no 1199/19)
[2021] ZASCA 015 (2 March 2021)
Coram:
DAMBUZA, SCHIPPERS and PLASKET JJA and
GOOSEN and MABINDLA-BOQWANA AJJA
Heard:

4 November 2020
Delivered: This judgment was handed down electronically by circulation to
the parties’ legal representatives by email, publication on the Supreme Court
of Appeal website and release to SAFLII. The date and time for hand-down is
deemed to be 09h45 on 2 March 2021.

Summary: Mandament van spolie – principle affirmed that remedy
possessory in nature – order requiring restoration of possession must be
capable of being carried into effect – high court having ordered party not in
possession of spoliated property to restore possession thereof to despoiled
party – whether agent of company a co-spoliator - order set aside as not
capable of being carried into effect.

ORDER

On appeal from:  Gauteng Division of the High Court, Johannesburg (Mtati
AJ sitting as court of first instance):
The appeal is upheld with costs.
The order of the Gauteng Division of the High Court, Johannesburg is
set aside and replaced with the following order:
‘The application is dismissed with costs.’

JUDGMENT

Goosen AJA (Dambuza and Plasket JJA concurring)
[1] The central issue in this appeal is whether a court can order a party to
restore possession of goods of which it is not in possession. It is a question
which has served before our courts in applications for a mandament van spolie
on numerous occasions. As with most questions regarding the application of
legal principles to facts, controversy can arise. In this instance the controversy
extends to the proper interpretation of the principles.

[2] Mtati AJ, in the Gauteng Division of the High Court, Johannesburg (the
high court), on 12 September 2019, ordered the appellants to restore
possession of a BMW motor vehicle to the respondent. Leave to appeal to this
Court was granted by the high court.

The facts
[3] The respondent, Mr Kenneth Leonardo Diedricks (Diedricks), was in
possession of a BMW motor vehicle and, on 28 August 2019, he delivered the
vehicle to the second applicant, Autoglen Motors (Pty) Ltd (Autoglen) for a
routine maintenance service. He handed the keys to the vehicle to Roger
Quintal (Roger), a consultant employed by Autoglen. At approximately 13h30
he received a telephone call from Roger advising him that he could collect the
vehicle. When, later that afternoon, Diedricks went to Autoglen’s premises to
collect the vehicle he discovered that the keys to the vehicle had been handed
over to representatives of an entity that claimed to own it.

[4] It transpired that shortly after Roger had called Diedricks to advise him
that he could collect the vehicle two persons, Louis and Diane, had arrived at
Autoglen’s premises. They spoke to Sergio Quintal (Sergio), and told him that
they represented the owner of the vehicle. They showed him eNATIS1
registration papers which reflected that the vehicle was owned by Street Talk
Trading 178 (Pty) Ltd (Street Talk Trading). Sergio was persuaded to hand
over the keys to the vehicle but kept possession of the vehicle. When
Diedricks went to collect the vehicle, using a spare set of keys, he was
informed by Sergio that Autoglen had been instructed by the first appellant,
Mr Jose Aquino Monteiro (Monteiro), not to hand over the vehicle to him. It
was common cause that Monteiro is a director of Street Talk Trading.

1 This is the national vehicle registration system established in terms of the National Land Transportation
Act 5 of 2009.

[5] Autoglen retained possession of the BMW motor vehicle until 29
August when it handed the vehicle to Street Talk Trading upon payment of
the invoice for the service it had performed on the vehicle.

[6] Diedricks launched an urgent spoliation application on 29 August 2019.
BMW South Africa (Pty) Ltd (BMW SA) was cited as first respondent,
Autoglen as second respondent and Monteiro as third respondent. No relief
was sought against BMW SA2 or Monteiro. Diedricks sought only an order
that Autoglen restore possession of the BMW motor vehicle to him. He stated
in his founding affidavit that until 28 August 2019 he was in peaceful and
undisturbed possession of the BMW motor vehicle. He explained that he was
a party to a vindicatory action in which Street Talk Trading claimed
repossession of the vehicle on the basis of ownership. That action was pending
before the high court. He had given no instruction to nor authorised the release
of the motor vehicle to Street Talk Trading or Monteiro. He accordingly
alleged that Autoglen had unlawfully dispossessed him of the motor vehicle.

[7] In its answering affidavit Autoglen set out the circumstances, described
above, in which it had released the vehicle to Street Talk Trading.  Monteiro,
in his answering affidavit, confirmed these facts. He confirmed that a
vindicatory action was pending before the high court. He alleged however,
that since Street Talk Trading was the owner of the vehicle, it was entitled to
take possession thereof as it did. He further stated that Street Talk Trading had
sold the vehicle, on 29 August, to a Mr Kioilos and had delivered it to him.
He, Monteiro, was at no stage in possession of the vehicle. Street Talk Trading

2 The high court made no order against BMWSA. It is accordingly not before this Court.

was no longer in possession thereof having entered into an agreement of sale
with a third party.

Proceedings before the high court
[8] Before the high court, Autoglen and Monteiro based their resistance to
the spoliation application on several grounds. Apart from contending that a
spoliation order could not be granted against them because they were not able
to restore possession, both raised a challenge to the alleged non-compliance
with regulations governing the administration of the oath and to the urgency
with which the application was pursued.

[9] The high court quite correctly ruled that the respondent had made out a
proper case for urgency.  This aspect was abandoned. Insofar as the alleged
non-compliance with rules regulating the administration of the oath is
concerned, Monteiro persisted with this issue on appeal. The high court
condoned Diedricks’ non-compliance with the regulations.  I accept that, for
the reasons given by the high court, it was entitled to condone the non-
compliance and that it did so properly.

[10] In the notice of motion Diedricks only sought an order against
Autoglen. However, such relief was abandoned in his replying affidavit. He
sought then, without formal amendment of the notice of motion, an order
against Monteiro. The high court granted an order, however, that:
‘Possession of a BMW motor vehicle . . . is to be restored to the applicant immediately by
the 2nd and / or 3rd respondent. . . .’

The issues
[11] Before this court Monteiro and Autoglen relied upon two primary
grounds. The first was that a mandament van spolie ought not to have been
granted because Diedricks was not, as matter of fact and law, in possession of
the motor vehicle when the spoliation occurred. It was submitted that he had,
by delivering the vehicle to Autoglen for repairs given up possession thereof.
In relation to Autoglen he had consented to its possession. Autoglen could
therefore not be said to have spoliated the property. In relation to Monteiro it
was submitted that inasmuch as the vehicle was taken into the possession of
Street Talk Trading, Diedricks was not deprived of possession since it was
then in the possession of Autoglen. On this basis, it was contended that
Diedricks did not establish the first requisite for an order restoring possession,
namely that he was deprived of possession.

[12] The second point relied upon was that neither Autoglen nor Monteiro
were in possession of the motor vehicle. Autoglen had passed possession on
to Street Talk Trading and could therefore not restore it to the possession of
Diedricks. As for Monteiro, he asserted that the vehicle had been sold by
Street Talk to a third party.

[13] For reasons which will become apparent hereunder I propose to deal
with the second issue raised by Monteiro and Autoglen since it is, having
regard to the facts, entirely dispositive of the appeal.

The principles
[14] The mandament van spolie is a possessory remedy which is available
to a person whose peaceful possession of a thing has been disturbed. It lies

against the person who committed the dispossession. The mandament is not
concerned with the underlying rights to claim possession of the property
concerned. It seeks only to restore the status quo ante. It does so by mandatory
order irrespective of the merits of any underlying dispute regarding the rights
of the parties.3 The essential rationale for the remedy is that the rule of law
does not countenance resort to self-help.

[15] In Rikhotso v Northcliff Ceramics (Pty) Ltd and Others (Rikhotso)4 it
was held that:
‘The remedy afforded by the mandament van spolie, expressed in the maxim spoliatus ante
omnia restituendus est, is generally granted where one party to a dispute concerning
possession of property seizes the property pursuant to what he believes to be his own
entitlement thereto. In such cases a court will summarily order return of the property
irrespective of either party’s entitlement to possession, and will not entertain argument
relating to their respective rights until this has been done. The principle underlying the
remedy is that the entitlement to possession must be resolved by the courts, and not by a
resort to self-help.
By its nature then a spoliation order will usually operate as no more than a preliminary
order for restoration of the status quo until the entitlement to possession of the property is
determined. The assumption underlying the order is that the property exists and may be
awarded in due course to the party who establishes an entitlement thereto.’

[16] This doctrinal basis of the remedy has been approved both by this Court
in Tshwelopele Non-Profit Organisation and Others v City of Tshwane
Metropolitan Municipality and Others5 and the Constitutional Court in

3 Van Rhyn and Others NNO v Fleurbaix Farm (Pty) Ltd 2013 (5) SA 54 (WCC) para 7.
4 Rikhotso v Northcliff Ceramics (Pty) Ltd and Others 1997 (1) SA (W) at 532G-I.
5 Tshwelopele Non-Profit Organization and Others v City of Tshwane Metropolitan Municipality and
Others 2007 (6) SA 511 (SCA) para 24.

Schubart Park Residents Association and Others v City of Tshwane
Metropolitan Municipality.6

[17] Two requirements must be met in order to obtain the remedy. Firstly
the party seeking the remedy must, at the time of the dispossession, have been
in possession of the property. The second is that the dispossessor must have
wrongfully deprived them of possession without their consent. As indicated
in Rikhotso the assumption underlying the granting of the remedy is that the
property exists and is capable of being restored to the possession of the party
that establishes entitlement thereto. It is for this reason that the remedy is not
available in circumstances where it has been destroyed. It is also not available,
generally, in circumstances where the property is no longer in the possession
of the spoliator.

[18] Our courts have accepted that in certain circumstances a remedy may
nevertheless be granted where the property concerned has been destroyed.
These circumstances are not relevant to the present matter. They relate, as
indicated in Tshwelopele and Schubart Park to instances where the
dispossession also implicates constitutionally protected rights such as the right
to housing and shelter. Importantly, it was held in Tshwelopele that there is
no need to develop the remedy’s essential possessory character or to graft onto
it a constitutional element. In that matter, as in Schubart Park, the remedy was
based upon the court exercising its constitutional jurisdiction to grant an
appropriate remedy distinct from the essential mandament.

6 Schubart Park Residents Association and Others v City of Tshwane Metropolitan Municipality (Socio-
Economic Rights Institute of South Africa as amicus curiae) 2013 (1) SA 323 (CC) para 24.

[19] Our courts have also accepted that the remedy may be granted in
circumstances in which the property is no longer in the possession of the
spoliator, but is held by a third party. In Malan v Dippenaar7 it was held:
‘Na my mening is ’n Hof geregtig om ’n bevel te maak teen ’n spoliator vir teruglewering
van die besit van gespolieerde eiendom al is hy nie meer in besit daarvan nie tensy, om een
of ander rede—bewys waarvan op die spoliator is—dit duidelik is dat dit onmoontlik vir
hom sal wees om die Hof se bevel uit te voer.’8

[20] There is, however, a contrary view to the effect that the mandament
does not lie in circumstances where possession of the property has passed into
the possession of a bona fide third party.9 In Jamieson and Another v Loderf
(Pty) Ltd and Others10 Rogers J outlined and considered the nature of this
controversy in the authorities. The court came to the conclusion that it was
unnecessary to resolve it. Instead it held, on the facts, that the immovable
property in issue in that matter had been sold and transferred to the third party
who had no knowledge of the pending spoliation proceedings and had
purchased the property bona fide. Accordingly as a matter of fact restoration
of the property was not possible. For this reason an order restoring the
property could not be granted. The court nevertheless framed a declaratory
remedy to vindicate the underlying principle of the rule of law. It did so
primarily because the property had been sold after an unsuccessful application
for a mandament but while an appeal was pending, in which the court of first
instance was found to have been wrong.

7 Malan v Dippenaar 1969 (2) SA 59 (O) at 65G-66A; see also Painter v Strauss 1951 (3) SA 307 (O); Sityata
v Eastern Cape Development Corporation [2018] ZAECMHC 34.
8 ‘In my view a Court would be entitled to make an order against a spoliator for the return of possession of
spoliated property even if he is no longer in possession thereof unless, for one or other reason – proof thereof
being on the spoliator – it is clear that it will be impossible for him to carry out the Court’s order’.
9 Burnham v Neumeyer 1917 TPD 630 at 633; Jivan v National Housing Commission 1977 (3) SA 890 (W)
at 894A – 896G.
10Jamieson and Another v Loderf (Pty) Ltd and Another [2015] ZAWCHC 18.

[21] In this matter I am similarly of the view that it is unnecessary to enter
upon the terrain of the academic controversy regarding the availability, in
principle, of the remedy where the spoliator is no longer in possession of the
spoliated property. That is so because the mandament by its nature may
involve either mandatory elements, such as the delivery of movable property,
or prohibitory elements, as in the case where a party is restrained from
preventing certain steps being taken to restore possession.11 Where the order
cannot be carried into effect it cannot, competently, be granted. Whether the
order can be carried into effect is a question of fact to be determined by the
court asked to grant an order.

[22] In Administrator, Cape and Another v Ntshwaqela 12 the court said of
this essential consideration,
‘It is trite that a court will not engage in the futile exercise of making an order which cannot
be carried out. So, an order for specific performance of a contract will be refused where
performance is impossible; and an order ad factum praestandum will similarly be refused
in such circumstance (e.g. an order for maintenance where the defendant is destitute). The
principle is embodied in the maxim lex non cogit ad impossibilia, which is discussed in
Broome’s Legal Maxims, 10th ed. at 162:
“This maxim, or, as it is also expressed, impotentia excusat legem, must be understood in
this qualified sense, that impotentia excuses when there is a necessary or invincible
disability to perform the mandatory part of the law, or to forbear the prohibitory. It is akin
to the maxim of the Roman law, nemo tenetur ad impossibilia, which, derived from
common sense and natural equity, has been adopted and applied by the law of England
under various and dissimilar circumstances.

11 See Administrator, Cape and Another v Ntshwaqela 1990 (1) SA 705 (A) at 720; [1990] 2 All S 34 (A)
12 Ibid at 720.

The law itself and the administration of it, said Sir W. Scott, with reference to an alleged
infraction of the revenue laws, must yield to that to which everything must bend, to
necessity; the law, in its most positive and peremptory injunctions, is understood to
disclaim, as it does in its general aphorisms, all intention of compelling to impossibilities,
and the administration of laws must adopt that general exception in the consideration of all
particular cases.”
The same principle must apply where the question is one not of obeying the law but of
complying with an order of court.
In the context of the mandament van spolie, impossibility is a question of fact, and where
it is contended that an order should not be granted because it cannot be complied with, it
must be shown that compliance is impossible on the facts.’

[23] In Eke v Parsons13 the Constitutional Court affirmed the essential
characteristics of a court order. It accepted that a court order must be effective,
enforceable and immediately capable of execution. In a minority concurring
judgment Jafta J stated that:
‘The rule of law requires not only that a court order be couched in clear terms but also that
its purpose be readily ascertainable from the language of the order. This is because
disobedience of a court order constitutes a violation of the Constitution.’

[24] It bears emphasis that in order to be an effective order, whether or not
its language is clear, the order must be capable of being carried into effect by
the party under burden of that order.

Assessment
[25] The facts in this matter are those which, on the principle set out in
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd,14 are set out in the

13 Eke v Parsons [2015] ZACC 30; 2016 (3) SA 37 (CC) para 12.
14 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).

answering affidavits filed by Monteiro and Autoglen. It must be accepted
therefore that Monteiro, acting in his capacity as a director of Street Talk
Trading, caused it to take possession of the motor vehicle from Autoglen.
What occurred immediately thereafter, indeed on the day that the spoliation
application was launched, is set out in Monteiro’s affidavit as follows:
‘Street Talk had no use for the motor vehicle and for this reason it sold the motor vehicle
to Mr Kioilos on 29 August 2019. The agreement in terms of which the motor vehicle was
sold was concluded orally. I represented Street Talk and Mr Kioilos acted personally.
Pursuant to the sale of the motor vehicle to Mr Kioilos, Street Talk delivered the motor
vehicle to Mr Kioilos who is in possession thereof.’

[26] It is apparent from these facts that, to the extent that Monteiro exercised
possession over the motor vehicle, he did so on behalf of Street Talk Trading.
It is also apparent that Street Talk Trading, a separate legal persona, sold the
motor vehicle and perfected the sale by delivery of the merx to the third party
purchaser.

[27] The order that was granted by the high court required Autoglen and / or
Monteiro to restore possession of the motor vehicle to Diedricks.  In the light
of these facts it is difficult to conceive how Autoglen and Monteiro could give
effect to the order. Neither was in possession of the motor vehicle. Autoglen
could not be expected to intervene in a contractual relationship to which it was
not a party. No doubt, for this reason Diedricks did not move for an order
against Autoglen. Nevertheless, an order was made against it by the high
court.

[28] Just as Autoglen could not, in law or fact, give effect to the order made,
so too was Monteiro not capable of giving effect to the order. Certainly,
Monteiro could not be compelled to take steps to restore possession without
Street Talk Trading, the entity which took possession of the motor vehicle and
disposed of it to a third party, being compelled, by a court order, to forbear
such steps or to take them itself. Street Talk Trading was not joined in the
proceedings. This is inexplicable given the facts disclosed in the affidavit filed
by Monteiro and also in the light of the fact there was pending litigation
between Street Talk Trading and Diedricks, in which ownership of the motor
vehicle was at issue. Had Street Talk Trading and Kioilos, the third party, been
properly joined, even after the answering affidavits were filed in the
application, Diedricks may well have been able to obtain proper relief.

[29] It follows, that upon a proper appreciation of the facts of the matter, an
order requiring Monteiro to restore possession of the motor vehicle to
Diedricks was not an order with which compliance was possible.

[30] It was suggested in argument that Monteiro did not assert that it was
impossible to comply with the order. It was also submitted that since the onus
is borne by the party asserting such impossibility more was required than the
‘mere’ assertion that the vehicle had been sold. In this regard it was suggested
that such ‘mere’ assertion would defeat a party’s entitlement to the restoration
of possession and would undermine the administration of justice. In
developing the argument, counsel suggested that Monteiro ought to have
provided greater detail regarding the sale of the motor vehicle so that the court
would be able to assess whether it was a bona fide sale. Counsel was, however,

unable to point to any particular allegation regarding the sale which would
alter the essential fact, namely that the sale had been perfected.

[31] The argument regarding the ‘mere’ assertion of disposal of the vehicle
loses sight of how an onus or evidentiary burden is discharged. The burden is
discharged upon application of a single standard and upon the facts as are
found to be established. In this instance those facts are that the vehicle was
sold and delivered to a third party. They do not permit of a finding that an
order for restoration could properly be made against Monteiro. The failure to
allege that compliance with a restoration order is impossible would not add to
the weight in favour of such conclusion. In each instance the court deciding
whether to grant a mandament van spolie against a particular respondent must
make its decision upon the facts and, as it must necessarily do when making
an order, alert to whether the order it makes can be carried into effect.

[32] Counsel for Diedricks argued that the rapid sale of the motor vehicle
suggested that Monteiro and Kioilos had ‘colluded’ in some manner to
frustrate Diedricks’ claim to possession of the motor vehicle. There is
however, no evidence to support this. The conclusion, to which the high court
came, is based upon an inference. It is however, not the only one which can
reasonably be drawn. Even if it were to be accepted that Monteiro conducted
himself in a manner which was deliberately calculated to deprive Diedricks of
possession of the vehicle and to frustrate his defence to the pending
vindicatory action, it is not possible to conclude that Kioilos was a party to
such scheme. The fact that Monteiro’s conduct may be reprehensible does not
render the order an effective order.

[33] For the reasons already indicated, the order against both Autoglen and
Monteiro is not one that competently could be made. The appeal must
therefore succeed.

Costs
[34] As already indicated the high court ought not to have granted an order
against Autoglen in circumstances where such relief was abandoned at the
hearing of the application. Autoglen was obliged to come to this court on
appeal to set that order and the associated costs order aside. It was open to
Diedricks to abandon the orders obtained against Autoglen. He did not. In
these circumstances Autoglen is entitled to its costs on appeal on the ordinary
principle that it was successful. It is also entitled to its costs in the high court.

[35] The same is true of Monteiro notwithstanding that he, as the agent of
Street Talk Trading, conducted himself in manner that suggests a deliberate
resort to self-help. For reasons I have already mentioned relief was sought
against the wrong party. The order by the high court ought not to have been
granted. For as long as that order subsisted and had not been abandoned,
Monteiro was obliged to approach this Court. He is accordingly entitled to his
costs on appeal. He is also entitled to his costs in the high court for the reasons
already mentioned. I do not consider that it will be appropriate to issue a
declaratory order such as was done in the Loderf matter, given the particular
circumstances of that case. Similar circumstances do not apply in this case.

[36] In the result, I make the following order:
The appeal succeeds, with costs.

The order of the high court is set aside and is replaced with the
following order:
‘The application is dismissed with costs.’

________________________
G. GOOSEN
ACTING JUDGE OF APPEAL

Schippers JA (Mabindla-Boqwana AJA concurring):
[37] I am grateful to my colleague, Goosen AJA, for his statement of the
circumstances in which the claim in this case arose and for setting out the
issues debated before us. I agree that an order should not have been granted
against the second appellant, Autoglen, since Diedricks had abandoned the
spoliation order sought against it. However, he persisted with his claim for
costs, as the actions by both Autoglen and Monteiro resulted in Diedricks
being dispossessed of the vehicle. In my view he is entitled to part of his costs
of suit in the high court.

[38] Unfortunately, however, I find myself in disagreement with Goosen
AJA on the outcome of the appeal in relation to the first appellant, Monteiro.
In my judgment, on the particular facts of the case, the high court was correct
to hold that Monteiro had unlawfully despoiled Diedricks of his possession of
the vehicle, and to grant a spoliation order.

[39]   To explain my reasons for differing from the majority, it is necessary
to state the basic facts, which in my opinion clearly show that Monteiro
engineered the dispossession of the vehicle. They are largely common ground.

Monteiro is a director of Street Talk Trading, the registered owner of the
vehicle. The latter has instituted a vindicatory action against Diedricks in the
high court under case number 42871/2018, for delivery of the vehicle (the
vindicatory action). That action is defended and when the spoliation
application was launched, had reached the stage where the parties were
required to deliver their heads of argument.

[40] On the morning of 28 August 2019 Diedricks delivered the vehicle to
Autoglen for a service. It was not the first time that Diedricks had taken the
vehicle to Autoglen for a service or repairs. He had done so in April 2019,
without incident. Autoglen sent an automated message via SMS to the contact
person on its system, ie Monteiro, confirming delivery of the vehicle.
Monteiro would otherwise not have known that the vehicle was at the
premises of Autoglen. Monteiro then advised Mr Sergio Quintal (Sergio),
Autoglen’s Service Manager that the vehicle should not be handed to
Diedricks, but to Street Talk Trading.

[41] Around 15h00 on 28 August 2019, Diedricks telephoned Autoglen to
arrange transport in order to collect the vehicle. He was referred to Sergio who
informed him that Monteiro had instructed him to give the key of the vehicle
to one, Louis, which he did. A short while later Diedricks took the spare key
and the court documents relating to the vindicatory action, and went to collect
the vehicle from Autoglen. He showed those documents to Sergio and said
that he was in lawful possession of the vehicle. In addition, Diedricks’
attorney telephoned Sergio and sent him further documents. Sergio however
informed Diedricks that Monteiro had given instructions that the vehicle must
not be delivered to him, and he refused to deliver it to Diedricks.

[42] Consequently, on the same day, ie 28 August 2019, Diedricks’
attorneys wrote to Martins Weir-Smith, the attorneys acting for Monteiro, and
to Sergio, advising them of the vindicatory action, and stating that if Diedricks
was not placed in possession of the vehicle, the court would be approached
urgently for relief. It is not disputed that Monteiro had informed Sergio that
the vehicle was not to be released to Diedricks under any circumstances, and
that Monteiro would pay any costs incurred by Autoglen. The vehicle was
handed to Monteiro at about 11h00 on 29 August 2019, although it was driven
away from the premises of Autoglen by someone else. On the same day that
the application was launched, Monteiro says that that Street Talk Trading sold
the vehicle.

The relief against the first appellant
[43] In order to obtain a spoliation order, an applicant must show that he was
in peaceful and undisturbed possession of a thing; and that he was unlawfully
deprived of such possession.15 These two requirements must be proved on a
balance of probabilities: a prima facie case will not suffice, since the
mandament van spolie is a final court order.16

[44] It is necessary firstly, to consider the argument by counsel for Monteiro
that, at the time of the spoliation, Diedricks was not in peaceful and
undisturbed possession, because he had handed over control of the vehicle to
Autoglen. Diedricks, so it was argued, also gave up the intention to possess

15 WA Joubert and J A Faris The Law of South Africa 2 ed (2014) vol 27 at 113 para 74.
16 P J Badenhorst, J M Pienaar and H Mostert Silberberg and Schoeman's The Law of Property 5 ed (2006).
at 292.

the vehicle when he delivered it to Autoglen. This argument has no merit and
can be disposed of shortly.

[45] It is trite that possession comprises an objective or physical element
(corpus, detentio) and a subjective or mental element (animus).17 The
objective element consists in effective physical control or custody of the thing
in a person’s possession. The measure of control required is a question of
degree that differs with the circumstances of each case. In this regard, one of
the factors taken into account is whether acquisition or retention of possession
is being considered.18 Once possession has been required initially, continuous
physical contact with or control over the thing, is not required for the retention
of such possession.19

[46] As to the mental element, the person must have the will to possess
(animus possidendi), which includes (a) an awareness that physical control is
being exercised over the thing; (b) the direction of the possessor’s will towards
exercising control over the thing for himself; and (c) the peculiar animus
required in view of the function served by possession in the particular case.20
As regards (c), where the possessor wishes to protect his possession, the will
to have the thing for oneself is required.21

[47] In Yeko v Qana,22 Van Blerk JA said:

17 Lawsa fn 15 at 81 para 74.
18 Lawsa fn 15 at 81 para 75.
19 Lawsa fn 15 at 84 para 78.
20 Lawsa fn 15 at 85 para 80.
21 Rubin v Botha 1911 AD 568 at 579; Groenewald v Van Der Merwe 1917 AD 233 at 240; Lawsa fn 15 at
86 para 80.
22 Yeko v Qana 1973 (4) SA 735 (A) at 739D-E.

‘The very essence of the remedy against spoliation is that the possession enjoyed by the
party who asks for the spoliation order must be established. As has so often been said by
our Courts the possession which must be proved is not possession in the juridical sense; it
may be enough if the holding by the applicant was with the intention of securing some
benefit for himself.’

[48] Following this decision, in Bennett Pringle (Pty) Ltd v Adelaide
Municipality,23 Addelson J stated:
‘If one has regard to the purpose of this possessory remedy, namely to prevent persons
taking the law into their own hands, it is my view that a spoliation order is available at least
to any person who is (a) making physical use of property to the extent that he derives a
benefit from such use; (b) intends by such use to secure that benefit to himself; and (c) is
deprived of such use and benefit by a third person.’

[49] Applied to the present case, Diedricks plainly was in possession of the
vehicle, both when it was delivered to and while it remained with Autoglen
for a service. He had used the vehicle and held it with the intention of securing
that benefit for himself. In the founding affidavit Diedricks says that the
vehicle is his primary means of transport for personal and business use. He
was still capable of exercising physical control over the vehicle after its
delivery to Autoglen. Indeed, the defence of the vindicatory action is a
powerful indicator that Diedricks had no intention of forfeiting the benefits
derived from his possession of the vehicle.

[50] As indicated above, the measure of control required for possession
depends on whether the acquisition or retention of possession is in issue. In
in the former case,  more stringent control is required; and in the latter,

23 Bennett Pringle (Pty) Ltd v Adelaide Municipality 1977 (1) SA 230 (E) at 233.

continuous physical contact with the thing is not necessary.24 As stated in
Bennett Pringle,25 detentio will be held to exist despite the fact that the
claimant may not possess the whole property, or possess it continuously.
Thus, in Lawsa, the example is given of a person who has left his coat in the
foyer of a dance-hall (normally handed to another for safekeeping). While he
is dancing, he retains possession of the coat.26 Likewise, persons who leave
their cars to be guarded by an attendant in a parking lot, and those who leave
their cars at a carwash, do not lose possession of their cars, although they are
unable for a period of time to exercise physical control over the cars. There is
no difference in logic or principle between these examples and the facts of
this case. Once possession is acquired it will be retained, as long as the
possessor is capable of exercising physical control over the thing.27

[51] The contrary approach in Bank van die Oranje Vrystaat v Rossouw,28
in which it was said that the respondent gave up possession of a vehicle when
he delivered it to a panel beater for repairs, is in my view, incorrect. The judge
in that case seems to acknowledge that the approach is inconsistent with Yeko
v Qana and Bennett Pringle.29 Aside from this, it is not clear whether the
respondent lost possession upon delivery of the vehicle, or as a result of the
panel beater’s exercise of its right of retention. The judge said:
‘Dit sal onthou word dat hy [die bank] die voertuig uit die besit van van ’n derde verkry
het nadat hy hom betaal het om sy retensiereg af te los. Na my mening was die verweerder

24 Lawsa fn 15 at 84 para 78.
25 Bennet Pringle fn 24 at 233.
26 Ibid.
27 Lawsa fn 15 at 84 para 78.
28 Bank van die Orange Vrystaat v Rossouw 1984 (2) SA 644 (C) at 648C.
29 Bank van die Orange Vrystaat fn 28 at 648H.

op daardie stadium nie in besit van die voertuig nie. Met ander woorde, die nodige detentio
het by die verweerder ontbreek.’30

[52] It follows that when Diedricks delivered the vehicle to Autoglen, he did
not relinquish possession of it. Otherwise viewed, the mandament van spolie
– rooted in the rule of law, whose main purpose is to preserve public order by
preventing persons from taking the law into their own hands31 – is unavailable
to the party unlawfully deprived of possession in circumstances such as the
present, and those described in paragraph 50 above.

[53] This brings me to the second issue: whether the high court was correct
to grant a spoliation order. The majority judgment states that Monteiro, ‘as
the agent of Street Talk Trading, conducted himself in a manner that suggests
a deliberate resort to self-help’. That Monteiro deliberately resorted to self-
help is, on his own version, in my view beyond question. He played a pivotal
role in the dispossession. Without Monteiro’s active intervention, Diedricks
could not and would not have been dispossessed of the vehicle.32 A person
who has ordered or ratified an act of spoliation is also deemed a spoliator.33
What the facts show, in my respectful opinion, is that Monteiro did not
exercise possession or control over the motor vehicle on behalf of Street Talk
Trading. But even if he had, it would not assist him, for two reasons. The first
is that throughout, Monteiro was a co-spoliator and the claim that he acted in

30 Bank van die Orange Vrystaat fn 28 at 648C. Emphasis added. My translation:
‘It will be recalled that it [the bank] obtained the vehicle from the possession of a third party after it had paid
the third party to relinquish its right of retention. In my opinion, the defendant at that stage was not in
possession of the vehicle. In other words, the necessary detentio on the part of the defendant was lacking.’
31 Tswelopele Non-Profit Organisation and Others v City of Tshwane Metropolitan Municipality and Others
2007 (6) SA 511 (SCA) para 22; Ngqukumba v Minister of Safety and Security and Others [2014] ZACC 14;
2014 (7) BCLR 788 (CC); 2014 (5) SA 112 (CC); 2014 (2) SACR 325 (CC) paras 10-12.
32 Adminstrator, Cape, and Another v Ntshwaqela and Others 1990 (1) SA 705 (A) at 718G-719A.
33 See Lawsa fn 15 at 113 para 107 and the authorities there collected.

a representative capacity is immaterial, in my view. So too, the fact that
Diedricks must have known of Street Talk Trading’s claim of ownership. The
second is that a better title to possession of a thing – Street Talk Trading’s
ownership of the vehicle – is not a defence to the mandament van spolie.34

[54] In Administrator Cape v Ntshwaqela,35 the applicants, who had been
unlawfully dispossessed of their sites on a farm in Noordhoek in the Western
Cape, obtained a mandament van spolie against the former Cape Provincial
Administration (CPA), the South African Police (SAP) and the owners of the
farm. It was argued that the role of the CPA was essentially to provide
transport for the removal of the applicants and that of the SAP, to maintain
order and to prosecute should that prove necessary. Rejecting this argument,
Nicholas AJA said:
‘There can be no doubt that the CPA and the SAP were co-spoliators with the respective
owners.  . . . Mr Comrie, who appeared for the second and third respondents in this Court,
said that although the CPA was vitally involved in the pre-planning, its role was essentially
that of providing transport for the removal of the squatters from Dassenberg Farm and The
Tip to Khayelitsha. It played no part in the demolition of structures or bulldozing activities
or anything else. This is no doubt correct, but the part played by the CPA was nevertheless
a vitally important one: without its assistance and support there could have been no removal
of the squatters. Mr Comrie said that the role of the SAP was essentially to maintain order
and prosecute if that should prove necessary; the police were not involved in the demolition
of any structures. I do not think that this is a correct assessment of the part played by the
police. They provided the driving force for the operation.’36
[55] Nicholas AJA went on to say:

34 Lawsa fn 15 at 124 para 111.
35 Ntshwaqela fn 32.
36 Ntshwaqela fn 32 at 718C-F.

‘There is a dearth of authority on the question of the liability of co-spoliators. In his
unpublished doctoral thesis, Die Mandament van Spolie in die Suid-Afrikaanse Reg (1986),
Prof D G Kleyn says the following at 253:
“7,2.2.7 Teen wie mandament aangevra word
Die mandament is in die eerste plek teen die spoliator self gerig. Voorts kan diegene wat
opdrag gegee het tot ’n daad van spolie (prinsipaal), asook diegene wat dit ratifiseer
(rationem habere) aangespreek word. Die rede vir laasgenoemde persone se
aanspreeklikheid is volgens Zoesius “quia ratihabitio in delictis mandato comparatur”.
Die gedagte is dus dat die ratifiseerder as ’n prinsipaal en derhalwe as ’n socius delicti,
beskou word. Waar die spoliator wat in opdrag gehandel het aangespreek word, word geen
tussenkoms van die prinsipaal toegelaat nie aangesien spolie ’n “species delicti” is. Die
vraag of beide die prinsipaal en die lashebber en of net een van die twee aangespreek kan
word, word ontbeantwoord gelaat deur genoemde skrywers.” In support of these
statements, the learned author refers to Christaneus, Schrassert, Zoesius and Nassau la
Leck. Although Prof Kleyn does not specifically discuss the liability of co-spoliators, the
principle is clear and there can be no doubt that they are liable as joint wrongdoers.’37

[56] Applied to the facts of this case, Monteiro was the spoliator. He was the
driving force behind the removal of the vehicle. He ordered and executed the
act of spoliation from start to finish. Upon being informed that the vehicle was
at the premises of Autoglen, Monteiro decided to take possession of the
vehicle unlawfully, and instructed Sergio not to release it to Diedricks under
any circumstances. When Sergio refused to release the vehicle on 28 August
2019, it was Monteiro who went to the premises of Autoglen and convinced

37 Ntshwaqela fn 32 at 718H-719A. Emphasis added. My translation:
‘7.2.2.7 Against whom the mandament may be sought
The mandament is in the first place directed at the spoliator himself/herself. Moreover, those who gave an
instruction for an act of spoliation (principal), as well as those who ratify if (rationem habere) can be held
liable. The reason for the liability of the latter persons is according to Zoesius, “quia ratihabitio in delictis
mandato comparatur”. The idea is thus that the person who ratifies is regarded as a principal and therefore as
a socius delicti. Where the spoliator who has acted on instruction is sought to be held liable, the interposition
of the principal is not permitted because spoliation is a “species delicti.” The question whether the principal
and the agent or only one of the two can be held liable, is left unanswered by the said writers.’

the dealer principal to release it, against payment of Autoglen’s invoice. The
vehicle was released to Monteiro on condition that he (not Street Talk
Trading) would deal with any issues which could arise from its release.

[57] The sole reason for his instruction that Diedricks should not be placed
in possession of the vehicle, in Monteiro’s own words, was this:
‘Since Street Talk is the owner of the vehicle, it was perfectly entitled to take possession of
the motor vehicle as it did. For this reason, I advised the second respondent’s
representative Mr Sergio Quintal that the motor vehicle should be handed to Street Talk
and not the applicant.’38

[58] Plainly, it was Monteiro who took this decision. On his own showing,
he was intent on unlawfully despoiling Diedricks of possession of the vehicle,
well-knowing that ownership thereof was the subject of the vindicatory action.
Street Talk Trading, the registered owner of the vehicle, instituted that action.
It did so – it must be accepted – precisely because it could not take the law
into its own hands. In these circumstances, it is inconceivable that Monteiro
could honestly have believed that he, or Street Talk Trading, was entitled to
take possession of the vehicle. This is the clearest indication that Monteiro’s
conduct was mala fide.

[59] Apart from this, the fact that Street Talk Trading is the registered owner
of the vehicle, or that it produced proof of its ownership to Autoglen, is not a
permissible defence in spoliation proceedings: possession of the spoliatus
must first be restored before the merits of the case can be considered.39 The

38 Emphasis added.
39 Nino Bonino v De Lange 1906 TS 120 at 122; Nienaber v Stuckey 1946 AD 1049 at 1053; Lawsa fn 15 at
124 para 111.

essence of spoliation proceedings is the restoration of possession before
anything else is decided (spoliatus ante omnia restituendus est).40

[60] The next question is whether restoration is impossible. In principle, the
mandament should apply in all cases where a person dispossesses another
even without acquiring possession himself, when in so doing he has taken the
law into his own hands, and when he is afterwards capable of restoring the
status quo ante.41 The authors of Silberberg and Schoeman’s The Law of
Property, rightly in my view, state that transfer of possession to a third party
cannot imply that restoration will always per se be impossible.42 Where a third
party has acquired possession a spoliation order can still be granted, unless
the spoliator proves that it is impossible for him to give effect to the order.43

[61] In Administrator Cape v Ntshwaqela Nicholas AJA said:44
‘In the context of the mandament van spolie, impossibility is a question of fact, and where
it is contended that an order should not be granted because it cannot be complied with, it
must be shown that compliance is impossible on the facts.’

[62] Monteiro simply failed to show that it was impossible for him to
comply with the spoliation order. The explanation for his alleged inability to
restore possession, comprises the most perfunctory assertions. He said:
‘Street Talk had no use for the motor vehicle and for this reason it sold the motor vehicle
to a Mr Kioilos on 29 August 2019. The agreement in terms of which the motor vehicle
was sold to Mr Kioilos was concluded orally.  I represented Street Talk and Mr Kioilos

40 Tswelopele fn 31 para 21; Ngqukumba fn 31 para 10.
41 Lawsa fn 15 at 120 para 110.
42 Silberberg and Schoeman's The Law of Property fn 16 at 305.
43 Painter v Strauss 1951 (3) SA 307 (O) at 318B-D; Malan v Dippenaar 1969 (2) SA 59 (O) at 65H-66C;
Silberberg and Schoeman's The Law of Property fn 16 at 305.
44 Ntshwaqela fn 32 at 720G-H.

acted personally. Pursuant to the sale of the motor vehicle to Mr Kioilos, Street Talk
delivered the motor vehicle to Mr Kioilos who is in possession thereof.’

[63] To begin with, apart from Monteiro’s say-so, there is no evidence of
the sale of the vehicle to the third party on 29 August 2019. Unsurprisingly,
no affidavit by Mr Kioilos confirming the so-called sale has been filed.
Monteiro gives no indication of the purchase price, whether the vehicle was
sold for cash or on terms, whether the purchase price has been paid, or whether
the proceeds of the alleged sale have been paid to Street Talk Trading. And
the whereabouts of the vehicle were masked with the simple statement that
Mr Kioilos ‘is in possession thereof’.

[64] Now, if the courts were to countenance such a ‘defence’, in my view
every application for a spoliation order would be dismissed by the sleight of
an allegation that the thing has been sold in terms of an oral agreement, and is
in the possession of a third party. Little wonder then, that Mtati AJ, correctly,
came to the following conclusion:
‘Under the circumstances, I am not persuaded that the action of the second respondent
[Autoglen] to release the vehicle was to err on the side of caution, nor am I persuaded that
the reasons proffered by the third respondent [Monteiro] of being no longer in possession
of the motor vehicle was as a result of a sale to an innocent party and that same was bona
fide.’

[65] Further, it will be recalled that in the afternoon of 28 August 2019,
Monteiro’s attorneys had been informed that a spoliation application would
be brought. The papers in that application were issued the next day and served
on his attorneys by e-mail, the very day on which Monteiro says he sold the
vehicle. The time at which the papers were served does not appear from the

record. Monteiro does not say precisely when on 29 August 2019, the sale was
concluded. This too, is not surprising. What is clear, however, is that the
vehicle could not have been delivered to a buyer before 11h00 on 29 August
2019 – when it was handed to Monteiro by Autoglen. And there is nothing in
the answering affidavit to suggest that Mr Kioilis is an innocent third party.
But even on the assumption that he is, Monteiro did not allege that it was
impossible for him to restore possession of the vehicle; neither did he adduce
any evidence of steps he had taken to do so.45 The high watermark of his case
on this score was that the application had to fail, simply because he was not
in possession of the vehicle.

[66] What is more, Monteiro himself said that Street Talk Trading ‘had no
use for the motor vehicle’, which he knew or ought to have known when he
instructed Sergio not to hand it to Diedricks. Why then was it necessary for
Monteiro to give this instruction and remove the vehicle from the premises of
Autoglen in the first place, if not to unlawfully deprive Diedricks of
possession of the vehicle, and subvert the vindicatory action? This, after he
was given notice of the intended spoliation proceedings. The most plausible
and readily apparent inference to be drawn from the above facts,46 is that
throughout, Monteiro acted mala fide, with the intention of despoiling
Diedricks of possession and undermining the vindicatory action.
[67] For these reasons, the high court’s finding that Monteiro unlawfully
dispossessed Diedricks of the vehicle, and that he took an easier route by
taking the law into his own hands so as to avoid the vindicatory action, cannot

45 Ntshwaqela fn 32 at 720G-H.
46 Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A) at 159D, affirmed in Kruger
v National Director of Public Prosecutions [2019] ZACC 13; 2019 (6) BCLR 703 (CC) para 79.

be faulted. Monteiro’s version that a spoliation order should not have been
granted because he was no longer in possession of the vehicle, or because the
order could not be complied with as restoration was impossible, does not raise
a genuine dispute of fact. That version is so clearly untenable that the high
court rightly rejected it merely on the papers.47 This approach is permitted
because motion proceedings are quicker and cheaper and it is in the interests
of justice that unvirtuous respondents should not be allowed to hide behind
patently implausible versions on affidavit.48 For this reason, the robust
practice of rejecting a plainly untenable version on the papers alone, referred
to in Fakie,49 is not out of place in spoliation proceedings.

[68] As has been shown above, the high court was correct to grant an urgent
spoliation order against Monteiro, in light of his patently untenable version
and the circumstances at the time that the application was launched and when
judgment was delivered. However, more than a year has passed since the
granting of that order. There is no evidence as to the present whereabouts of
the vehicle or who has possession or ownership of it. Does the possibility, in
the particular circumstances of this case, that an order to restore possession of
the vehicle may not be able to be carried into effect leave Diedricks without a
remedy?  In my view, not, particularly because it was Monteiro who by his
conduct, made it impossible for Diedricks to obtain full relief.50

[69] For these reasons, I consider that a declaratory order that Diedricks was
unlawfully dispossessed of the vehicle, together with an order for costs in the

47 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E-635C.
48 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) paras 55-56.
49 Fakie fn 48 para 56.
50 Jamieson and Another v Loderf (Pty) Ltd and Others [2015] ZAWCHC 18 para 59.

high court, is appropriate.51 This, it seems to me, is a matter of principle: the
essential aim of the mandament van spolie, which is deeply rooted in the rule
of law, is the preservation of the legal order, by preventing individuals from
taking the law into their own hands to enforce their rights. Its purpose is to
vindicate the rule of law.52 As Prof Kleyn has observed, the Constitutional
Court’s decision in Ngqukumba ‘underscores and heralds a re-look at the
interpretation and application of South African common law provisions within
the new supreme constitutional context’.53

The relief against the second appellant
[70] Autoglen opposed the spoliation application on the same grounds as the
first appellant. It claimed that Diedricks was not entitled to any relief at all;
that he was not in possession or control of the vehicle at the time of the
dispossession; and that it was unable to return the vehicle to Diedricks ‘due to
the documentation handed to [Sergio] on behalf of the third respondent
[Monteiro]’. As stated earlier, Autoglen handed the vehicle to Monteiro on 29
August 2019 after he had convinced the dealer principal to do so and
undertook to deal with any consequential issues. It did so on the impermissible
basis that Diedricks was not the owner of the vehicle. As already stated, a
court does not consider title, or the merits of the case, in a spoliation
application.

[71] It is common ground that when the spoliation application was launched,
Diedricks was unaware of what had transpired at the dealership on 29 August

51 Jamieson fn 48 paras 59 and 62.
52 Ngqukumba fn 31 para 10.
53 D G Kleyn and B Bekink ‘The Mandament van Spolie, The Restitution of Unlawful Possession and the
Impact of the Constitution’ 2016 (79) THRHR 308 at 321.

2019, more specifically that Autoglen had handed over the vehicle to
Monteiro. That Autoglen was a co-spoliator, in my opinion, is also beyond
doubt. However, in the replying affidavit Diedricks gave notice of his
intention to amend the notice of motion that possession of the vehicle be
restored only by Monteiro; and to seek a costs order against both Autoglen
and Monteiro because of their collective actions which resulted in the
dispossession.

[72] Given Diedricks’ stated intention not to proceed against Autoglen, the
high court erred in granting the order that it did against Autoglen. On the facts,
and given that Diedricks achieved substantial success, I consider it reasonable
that in relation to Autoglen, he should be awarded costs up to and including
the date of delivery of the replying affidavit, ie 2 September 2019.

[73] In the result, I would make the following order:
The first appellant’s appeal is dismissed with costs, including the costs
of two counsel.
The second appellant’s appeal succeeds with costs.
Paragraphs 2 and 3 of the order of the court a quo are set aside and
replaced with the following order:
‘1
It is declared that the third respondent on 29 August 2019 unlawfully
despoiled the applicant of his possession of a BMW motor vehicle with engine
number 67259275 and chassis number WBA8F36060NT48007.
The third respondent is directed to pay the applicant’s costs of suit.
The second respondent is directed to pay the applicant’s costs of suit,
up to and including 2 September 2019.’

A. SCHIPPERS
JUDGE OF APPEAL

Plasket JA
[74] I am in agreement with the order proposed by my brother Goosen AJA
and agree too with his reasoning for arriving at the conclusion that the appeal
should succeed with costs. Consequently, I disagree with the order proposed
by my brother Schippers JA and with his reasons therefor. I consider it
necessary to deal briefly with why I disagree with his reasoning. In doing so,
I rely largely on the facts set out by Goosen AJA in paragraphs 3 to 7 of his
judgment.

[75] Schippers JA’s judgment raises two issues that require consideration.
The first is the capacity in which Monteiro acted and whether he was a co-
spoliator; and the second is whether Monteiro was able to restore possession
of the vehicle to Diedricks.

[76] It is undoubtedly so that Monteiro played a prominent role in the
spoliation of the vehicle and its disposal by sale. This, on its own, does not
necessarily mean that, as Schippers JA concluded, he was ‘a co-spoliator’ or
‘the spoliator’. Given these conclusions, it is necessary to consider the facts
in finer detail. Those facts are, on the basis of the Plascon-Evans rule,54 the
facts put up by Diedricks that have not been disputed or denied, and the facts
put up by Monteiro and Sergio.

54 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd fn 47 at 634E-I.

[77] What appears clearly from Monteiro’s answering affidavit is that, at all
times, he acted in a representative capacity on behalf of Street Talk Trading,
a company. He acted in that capacity because he was a director of the
company. It must be accepted as a fact for purposes of this case that the vehicle
at the centre of this dispute belonged to Street Talk Trading. Monteiro stated
that, on 28 August 2019, Autoglen advised Street Talk Trading by SMS that
the vehicle was at its premises for a service. It did so because, according to
Sergio, Autoglen’s records reflected that Street Talk Trading was the owner
of the vehicle. Because Street Talk Trading was the owner of the vehicle,
Monteiro, obviously in his capacity as a director, told Sergio, when they met
on 29 August 2019, ‘that the motor vehicle should be handed to Street Talk
and not to the applicant’. And Monteiro expressly made it clear that he acted
in a representative capacity when Street Talk Trading sold the vehicle to
Kioilos on 29 August 2019: having stated that the sale agreement was
concluded orally, he said that ‘I represented Street Talk and Mr Kioilos acted
personally’.

[78] It is clear too from Sergio’s answering affidavit that whatever Monteiro
did, he did on behalf of Street Talk Trading: Monteiro provided Sergio with
proof that Street Talk Trading was the owner of the vehicle; when Monteiro
spoke to Sergio for the first time on the afternoon of 28 August 2019, he tried
to persuade Sergio to hand over the vehicle to ‘the owner’; and the following
morning, when they met for the first time, Monteiro succeeded in persuading
Autoglen ‘to release the motor vehicle to the owner against the payment of
the invoice in relation to the service which had been carried out, and on
condition that he, the third respondent, would deal with any issues which
could arise from [Autoglen] handing the vehicle over to the owner’.

[79] Sergio’s interactions with Louis and Diane are to the same effect: they
told him that they ‘represented the owner of the motor vehicle’ and provided
him with proof of Street Talk Trading’s ownership; Louis made it clear to
Sergio that ‘as far as the owner was concerned, I was not to return the motor
vehicle to [Diedricks]’; and Sergio told Diedricks that ‘on instructions of the
owner, I had given the keys of the motor vehicle to Louis on its behalf’. By
this stage, Sergio had never had any dealings with Monteiro and there is no
evidence that Louis and Diane acted on his instructions.

[80] In my view, Schippers JA has misconstrued the evidence in important
respects. First, it was not Monteiro who told Sergio, immediately after the
SMS was sent automatically, that the vehicle was not to be returned to
Diedricks but should be handed over to Street Talk Trading. Instead that was
the upshot of Sergio’s dealings with Louis and Diane. Secondly, when Sergio
spoke to Diedricks on the afternoon of 28 August 2019, he did not tell him
that Monteiro had instructed him to give the keys to Louis. Rather, he told
Diedricks that, on the instructions of ‘the owner’, he had given the keys to
Louis ‘on its behalf’. Thirdly, Sergio did not say, when Diedricks went to
Autoglen (armed with spare keys), that Monteiro had told him not to release
the vehicle to Diedricks. Instead, it was Louis who had said earlier that the
owner’s view was that the vehicle should not be released to Diedricks, and
Sergio had simply told Diedricks that ‘due to the documentation handed to me
on behalf of the third respondent, I was unable to give him the motor vehicle’.
[81] This reference to the ‘third respondent’ requires clarification. It cannot
be a reference to Monteiro because, at that stage, on the afternoon of 28
August 2019, Sergio had not had any dealings with Monteiro, and Louis and
Diane had not mentioned him: all they had said was that they represented the

owner. Furthermore, it was only ‘[l]ater that same afternoon’ that he had ‘a
discussion’ with Monteiro. In these circumstances, it is fair to assume that the
reference to the third respondent was, in fact, intended to be a reference to
Street Talk Trading.

[82] The effect of Schippers JA’s judgment is to collapse the distinction
between the separate legal personality of Street Talk Trading and its human
agents such as Monteiro. It also has the effect of collapsing the distinction
between a principal and an agent by seeking to visit liability on an agent for a
representative act on behalf of the principal. Both of these outcomes are in
conflict with first principles of company law55 and the law of agency.56 They
would have far-reaching and deleterious consequences for both company law
and the law of agency.

[83] The visiting of liability on Monteiro is not a proper or acceptable
alternative to the course Diedricks ought to have followed namely, citing
Street Talk Trading as a respondent, rather than one of its agents. His failure
to do so is inexplicable, and no attempt was made to explain or justify this
failure. In the light of the litigation concerning the ownership of the vehicle,
Diedricks must have known of Street Talk Trading’s claim of ownership; and
if he did not, he was apprised of this fact clearly enough before he deposed to
his founding affidavit in this matter. Despite amending his notice of motion
(in his reply) in order to change his target for the spoliation order from

55 Du Bois (ed) Wille’s Principles of South African Law (9 ed) at 400-401; Webb & Co v Northern Rifles;
Hobson & Sons v Northern Rifles 1908 TS 462 at 464-465; Morrison v Standard Building Society 1932 AD
229 at 238; Lewis & Co (Pty) Ltd v Pietersburg Ko-operatiewe Boere Vereeniging and Others 1936 AD
344 at 353.
56 Du Bois fn 55 at 997-998; Blower v Van Noorden 1909 TS 890 at 899-900.

Autoglen, he chose to cite Monteiro and seek an order against him, rather than
Street Talk Trading. In my view, this amounts to a fatal non-joinder.

[84] I turn now to the second issue, which is in truth the nub of the case –
whether restoration of the vehicle to Diedricks by Monteiro is possible, and
whether an order directing restoration of possession would be effective.
Schippers JA found that restoration was not impossible and that the court
below was correct in finding that the sale of the vehicle was mala fide. The
order proposed by Schippers JA, however, does not confirm the order of the
court below. Instead, it would set aside that order and replace it with an order
declaring that the dispossession was unlawful. I am of the view for the reasons
that follow that the finding and the proposed order are both unsustainable.

[85] It is a defence to an application for a mandament van spolie that it is
impossible for the person who dispossessed the possessor to restore
possession of the spoliated property to him or her. The reason that underpins
this defence is that courts generally do not make orders that cannot be carried
out. Whether restoration of possession is possible or not is a question of fact.57

[86] It is not in dispute that Monteiro, in his capacity as a director of Street
Talk Trading, sold the vehicle to one Kioilos, and that the vehicle was
delivered to Kioilos. (There is no evidence upon which an inference may be
drawn that Kioilos was not a bona fide purchaser.) Monteiro’s evidence of the
sale was rejected by Schippers JA on the basis that it did not create a genuine
dispute of fact and was ‘clearly untenable’. I am unable to agree.

57 Administrator, Cape and Another v Ntshwaqela fn 11 at 720C-H.

[87] There was no dispute of fact insofar as the sale of the vehicle by Street
Talk Trading to Kioilos is concerned. In the founding papers, an order was
sought against Autoglen only, because Diedricks obviously believed that
Autoglen was in possession of the vehicle. Evidence of the sale of the vehicle
only emerged in Monteiro’s answering affidavit and, in his reply, Diedricks
said that he had ‘no knowledge of the alleged sale of the vehicle’. Diedricks
never applied for Monteiro to be cross-examined on the issue. Monteiro’s
version that Street Talk Trading sold the vehicle must be accepted, even if
Monteiro did not provide the detail that Schippers JA expected him to provide.
The absence of those details does not alter the fact that the evidence is that the
vehicle was sold and delivered to Kioilos. That is an inescapable bottom line:
the vehicle has been sold and is no longer in the possession of Street Talk
Trading.

[88] In order for Monteiro, in his personal capacity, to restore possession of
the vehicle to Diedricks, as he was ordered to do by the court below, he would
have to take legal steps to set aside the contract of sale entered into by Street
Talk Trading and Kioilos. It seems to me that he may encounter
insurmountable difficulties. For instance, I have my doubts that a person who
is not a party to a contract has standing to institute proceedings to set it aside.
Secondly, if he cleared this hurdle, he would have to establish a basis for the
setting aside of the agreement. No one has suggested what this may be. Even
if a ground was established, Kioilos may take the view that he wishes to abide
by the contract even if it was induced by a misrepresentation or non-
disclosure. All of this illustrates that, whatever one thinks of Street Talk
Trading’s conduct in selling the vehicle, the issuing of an order directing
Monteiro – in his personal capacity, I stress – and not Street Talk Trading, to

restore possession of the vehicle to Diedricks, would be an exercise in futility.
The order would be impossible to enforce.

[89] I do not understand why Schippers JA, having rejected the defence of
the impossibility of the restoration of the property, proposed the alteration of
the order of the court below to a declarator that Monteiro ‘unlawfully
despoiled’ Diedricks of his possession of the vehicle. On the one hand, to issue
a declarator rather than an order directing the restoration of possession defeats
the purpose of a mandament van spolie. Its very object is that ‘possession of
the thing of which the applicant has been dispossessed should be restored to
him’.58 If, on the other hand, he entertained doubts that possession could be
restored, a declarator could not have been made because a successful defence
would have been raised.

[90] Schippers JA’s reliance on Jamieson and Another v Loderf (Pty) Ltd
and Others,59 in which a declarator was issued, requires brief consideration.
This judgment is not authority for the proposition that a declarator may be
issued if restoration of possession is impossible. The declaratory relief granted
on appeal is tied tightly to the peculiar facts of the case. The appellants had
brought an application for a mandament van spolie. The application was
dismissed. They took the matter on appeal to a full court. After the dismissal
of the application, but before the hearing of the appeal, the property was sold
by the first respondent. The full court concluded that the appellants should
have succeeded in the court of first instance but, because of the disposal of the
property, could not make the order that should have been made. Instead, in

58 Burnham v Neumeyer fn 9 at 633.
59 Footnote 10.

order to reflect the success of the appeal in these unusual circumstances, the
full court replaced the court of first instance’s order dismissing the application
with a declarator that the dispossession had been unlawful. Similar
circumstance do not prevail in this case.

[91] For these reasons, additional to those set out in Goosen AJA’s
judgment, I am in respectful agreement with the order proposed by him.

C. PLASKET
JUDGE OF APPEAL

Appearances

For first appellant:
H A Van der Merwe
Instructed by: Maree & Partners, Bloemfontein
For second appellant:
B D Hitchings

Instructed by: Maree & Partners, Bloemfontein

For respondent:

M S Baloyi SC

C Rowji

Instructed by: Webbers Attorneys, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT
OF APPEAL

FROM:
The Registrar, Supreme Court of Appeal
DATE:
2 March 2021
STATUS:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

Monteiro and Another v Diedricks (119/2019)
[2021] ZASCA 015 (2 March 2021)

The Supreme Court of Appeal (the SCA) today upheld an appeal against an order by the
Gauteng Division of the High Court, ordering the appellants to restore possession of a
BMW motor vehicle to the respondent.

In August 2019 the respondent, Diedericks, delivered a BMW motor vehicle to Autoglen
Motors (Pty) Ltd (Autoglen) for routine maintenance. Street Talk Trading 178 (Pty) Ltd
(Street talk Trading), the registered owner of the vehicle received a SMS notification from
Autoglen that the vehicle was under maintenance. At the time Street Talk Trading and
Diedericks were parties to a vindicatory action brought by Street Talk Trading. Following
receipt of the SMS notification Monteiro, the first appellant, as director of Street Talk
Trading took steps to ensure that Autoglen delivered the vehicle to Street Talk Trading.
Upon discovery of this Diedericks launched a spoliation application against Autoglen. He
cited BMW South Africa and Monteiro as respondents, although no spoliation order was
sought against them.

Autoglen opposed the relief on the basis that it was not in possession of the vehicle having
delivered it to Street Talk Trading. Monteiro opposed the costs order sought on the basis
that Street Talk Trading had taken possession of the vehicle and had sold it to a third party.
The high court granted an order requiring Autoglen and Monteiro to restore possession of
the motor vehicle.

In a split decision (penned by Goosen AJA with Dambuza and Plasket JJA concurring) the
SCA found that the high court had erred in granting a spoliation order against Autoglen
when such relief had been abandoned by Diedericks. It further found that the facts

established that Monteiro had acted in his capacity as director of Street Talk Trading; that
Street Talk trading had taken possession of the vehicle and that it had sold the vehicle. The
order compelling Monteiro to restore possession was not capable of being carried into
effect since Monteiro was not in possession of the vehicle and could not take steps to
intervene in the contract of sale entered into between Street Talk Trading and the third
party. The majority accordingly upheld the appeal with costs.

The minority (per Schippers JA with Mabindla-Boqwana AJA concurring) found that both
Autoglen and Monteiro were, on the facts disclosed by them, co-spoliators together with
Street Talk Trading. It was found that Monteiro had acted deliberately and mala fide to
secure possession of the vehicle by Street Talk Trading in order to subvert the vindicatory
action to which it was a party. He had thereupon sold the vehicle to a third party. It was
found that no evidence was presented by Monteiro to establish that the sale was bona fide.
Nor was evidence presented to establish that an order requiring him to restore possession
could not be carried into effect.  The minority accepted that the high court order against
Autoglen was wrongly granted in the light of such relief having been abandoned.

In a separate judgment concurring with the majority, Plasket JA, took issue with the
minority judgment’s factual findings. He held that upon the application of the principles
by which facts are determined in opposed applications, the averments of Monteiro must be
accepted. The effect was that Monteiro was acting as the agent of Street Talk Trading. The
effect of the minority judgment, Plasket JA held, was to collapse the distinction between
the separate legal personality of Street Talk Trading and its human agents. The failure to
join Street Talk Trading, in the circumstances of the case, constituted a fatal non-joinder.
Plasket JA also held that essential difficulty faced by Diedericks was that the order
requiring Monteiro to restore possession of the vehicle was not capable of being carried
into effect.