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A person cannot be ordered to restore possession of goods not in their possession

29 April 2021 Patrick Bracher, Norton Rose Fulbright
Patrick Bracher, Norton Rose Fulbright

Patrick Bracher, Norton Rose Fulbright

The court refused to order the return of goods by a spoliation order because the respondent was not in possession of the goods.

The claimant gave his motor vehicle to a dealer for a routine maintenance service.  When he went to collect the vehicle he discovered that the keys to the vehicle had been handed over to the representative of an entity that claimed to own it.  The dealer subsequently gave possession of the vehicle to the purported owner.  The claimant sought an order against the dealer to restore possession of the vehicle to him based on wrongful disturbance of his peaceful and undisturbed possession of the vehicle which is the test for a spoliation order.  The action lies against the person who commits the dispossession.  The claim is not concerned with the underlying rights to the property.  It seeks only to restore the position that was in place before the dispossession took place.  The law does not countenance resort to self-help.

The court found that in effect the order could not be carried into effect because the dealer as non-possessor could not restore the vehicle which by that time had been sold by the possessor to a third party; nor could an order be made against the person who had taken possession of the vehicle from the dealer for the same reason.

This is one of those cases where there was a 3 to 2 majority in the Supreme Court of Appeal against a judgment in favour of the claimant in the lower court.  Therefore each party had three judges on their side but the majority in the Supreme Court of Appeal prevails.

[Monteiro and Ano v Diedricks [2021] ZASCA 015 (2 March 2021)]

First published by: Financial Institutions Legal Snapshot

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