Added Legal Value Newsleter Volume 1 Number 5

5 May 2008

When is a tollgate not a tollgate
In the matter of State versus Smit the accused was accused of not paying the required fees at the Nkomazi Toll Plaza on the N4 national road. He drove through the tollgate on 12 occasions without paying. On each occasion he also ignored the red light at the toll gate. The red light was only turned to green once motorists paid the toll fees.

Smit was acquitted on the 12 charges of contravening the National Roads Agency Limited and National Roads Act as read with the National Traffic Act as the court found that the state had not proved that the road had properly been declared a toll road and neither that the toll levy had been sanctioned by the relevant Minister. The accused was however convicted of ignoring the red traffic lights. The court held that if there is a red traffic light on the road, a driver on the road must comply. ‹It sounds a bit like an egg without salt!›

Protect your possession of that thing
The law tries to keep the status quo in place while disputes are being resolved. For example, a motor vehicle technician or panel beater may possess a vehicle that he or she has fixed until the services and parts have been paid for. So also, a spouse going through a divorce or domestic partner dispute may keep possession of household items until the court orders otherwise.

A person, whose physical possession of an asset is disturbed, may apply for a Spoliation Order forcing another person to return the asset. This right to protection of possession is so strong that it can even be used against the owner of the asset.

Recently four judges of the Cape High Court confirmed that Spoliation may be used to protect the rights of a director /shareholder to return to the company office where the other directors had denied him access. Our firm was involved in that matter and can report that the success of that initial application and appeal lay a solid foundation for the director to be paid out later by his former colleagues. He was also successful with various cost orders.

In Masema ‹Pty› Ltd and Others versus PP Mkhari and others, a farming matter concerning R9 000 000 worth of oranges, the respondents tried to prevent a Spoliation Order by filing an opposing affidavit of 100 pages long. It was all to no avail and they were ordered to restore possession and pay the Applicants costs on a punitive scale.

Thank you for taking a few moments to read this letter.

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