Cases

DIANA FARM (PVT) LTD v MADONDO NO & ANOR 1998 (2) ZLR 410 (HC) A
Court High Court, Harare
Smith J
Opposed application B
16 & 28 October 1998 Judgment No. HH-188-98
[zFNz]Flynote
Administration of estates - executor - requirement to deliver assets of estate to executor - duty C of

executor to recover and safeguard property of deceased estate
Practice and procedure - parties - representation - company - must be represented by legal

practitioner
Practice and procedure - stare decisis D - decisions of the High Court - single judge departing from
ruling made by two judges - breach of stare decisis principle
Spoliation - lawful possession - when established - need to show necessary intention to possess as
well as physical possession - wrongful possession by spoliator E - what is - administrator of
deceased estate removing estate property - not an unlawful removal
[zHNz]Headnote
The executor of a deceased estate took livestock from a farm belonging to the applicant company.
The livestock had belonged to the late brother of a director of the company. The company sought a
spoliation order, claiming that it was in peaceful and undisturbed possession of the livestock and F
that the executor had wrongfully deprived it of such possession. When the proceedings were first
brought, a director of the company had appeared to represent the company.
Held, that the company owned the farm but the evidence was that the livestock had been in the
possession of the deceased. Although the livestock was on the company's farm, there was no
evidence that it had ever possessed the livestock, as it did not have the requisite intent in respect of
the stock.
Held, further, that the first respondent G had established that the stock he removed was properly
identified as having belonged to the deceased. The Administration of Estates Act [Chapter 6:01]
requires that any person having custody of any property or asset belonging to a deceased estate
should forthwith deliver the property or assets to the executor or report the particulars of the
property to the Master. The removal of the property was therefore lawful.
Held, further, that the applicant did not show that it had not consented to the removal of the
property. The deceased's brother, a director, was shown to have been present at the time and to
have acquiesced in the removal. H
1998 (2) ZLR p411
SMITH J
Held, further, that the applicant had to A be represented by a legal practitioner. There was a
decision by two judges of the High Court to this effect. Although a single judge had later given a
judgment to the opposite effect, the stare decisis principle requires that he should have followed the
earlier judgment.
Cases cited:
Bennett Pringle (Pvt) Ltd v Adelaide Municipality 1977 (1) SA 230 (E)
Botha & Anor v Barrett 1996 (2) ZLR 73 (S) B
Davis v Davis 1990 (2) ZLR 136 (H)
Kramer v Trustees, Christian Coloured Vigilance Council, Grassy Park 1948 (1) SA 748 (C)
Levin & Co Ltd v Berg River Flour Mills 1920 WLD (not reported)
Pumpkin Construction (Pvt) Ltd v Chikaka 1997 (2) ZLR 430 (H)
Yeho v Qana 1973 (4) SA 735 (A)
Zimbabwe Banking Corp Ltd v Pindi Electrical & Hardware (Pvt) Ltd & Ors 1998 (2) ZLR 210 (H) C
Legislation considered:
Administration of Estates Act [Chapter 6:01], s 42
Legal Practitioners Act [Chapter 27:07], s 9(2)
[zCIz]Case Information
M Shortgame, for the applicant
W Ncube, for the first respondent D
[zJDz]Judgment
SMITH J: The first respondent (hereinafter referred to as ``Madondo'') is the executor of the estate
of the late Charles Chikerema. As executor he made an attempt to collect the assets which form part
of the estate. He collected cattle, goats, sheep, ostriches and a horse E from Diana farm, which is
owned by the applicant, and from a farm in Msengezi Purchase Area. The applicant applied for a
spoliation order for the return of the livestock which had been taken by Madondo - case No. HC-
7815-98. The application was dismissed - HH-139-98 - on the grounds that the applicant had sued
the wrong parties. He had not sued the executor of the estate of the late Charles Chikerema. The F
applicant then filed the application for a provisional order for the return of 184 head of cattle and 68
goats and sheep, which it alleged Madondo had taken from its possession. A provisional order was
granted by ADAM J without Madondo being given an opportunity to file an opposing affidavit.
Madondo then applied for the return date to be fixed as soon as possible. G
The founding affidavit was made by James Chikerema, elder brother of the late Charles Chikerema.
He is a director of the applicant which he alleged carries on farming operations at Diana farm and on
the family farm, No. 1 Msengezi Purchase Area. He alleged that Madondo unlawfully removed 236
head of cattle, 34 ostriches, 140 goats and sheep and 1 horse from Diana farm and the Msengezi
farm. The livestock were, so he claimed, in the possession H
1998 (2) ZLR p412
SMITH J
of the applicant. He also claimed that he had not been present A when the livestock were removed
and that he had not consented to their removal. He claimed that some of the livestock belonged to
other members of the family. Of the livestock removed from the farms, the applicant recovered 52
head of cattle, 20 ostriches and 72 goats and sheep, 10 of which were new offspring, subsequent to
obtaining the first provisional order granted by MUBAKO J on 9 July 1998.
Madondo, in his opposing affidavit, admitted that he B had removed from the farms and taken
custody of 197 head of cattle, 84 goats and sheep, 20 ostriches and one horse. Before doing so, he
had written to the applicant advising it of his intention. When the cattle were removed James
Chikerema was present and did not object; he merely drove away from the scene C soon after the
removal of the cattle commenced from Diana farm. The goats, sheep, ostriches and horse were
removed from the Msengezi farm and were not in the applicant's possession.
In addition to opposing the confirmation of the provisional order, Madondo filed a counter-
application for the return to his custody of the livestock, which the applicant has D recovered by
virtue of the two provisional orders it obtained, and for the delivery to him of all the property which
belonged to the late Charles Chikerema and which is presently being held by the applicant. The
property in question consists of 225 head of cattle, 134 goats, 48 sheep, 7 horses, 34 ostriches,
about 200 pigeons, about 30 turkeys, 3 geese, 2 cultivators, 2 ploughs, one water engine and one
scotch cart.
Mr Shortgame submitted that the applicant E was entitled to the spoliation order it had applied for,
in that it had shown that it was in peaceful and undisturbed possession of the livestock in question
and that Madondo had deprived it of such possession forcibly or wrongfully against its consent.
Since the application is for a spoliation order, it is not necessary to establish the ownership of the
livestock. With regard to the counter-application, Mr Shortgame F submitted that it had no merit
and should be dismissed. He therefore submitted that the provisional order should be confirmed
and that the counter-application should be dismissed.
Mr Ncube argued that the applicant had not discharged the onus of establishing that it was entitled
to the spoliation order it claimed. He submitted that the applicant had G not established that it was
in possession of the livestock and neither had it established that it was forcibly dispossessed of the
livestock. He also submitted that the removal of the livestock by Madondo was not unlawful since he
was acting in terms of s 42 of the Administration of Estates Act [Chapter 6:01]. As regards the
counter-application, he submitted that Madondo had shown that he was entitled to the order
sought. H
1998 (2) ZLR p413
SMITH J
I will deal firstly with the provisional order and A then with the counter-application.
CONFIRMATION OF PROVISIONAL ORDER
The law relating to the basis on which a mandament van spolie will be granted is well settled. In
Davis v Davis 1990 (2) ZLR 136 (H) at 141 ADAM J quoted with B approval the following statement
by HERBSTEIN J in Kramer v Trustees Christian Coloured Vigilance Council, Grassy Park 1948 (1) SA
748 (C) at 753:
``... two allegations must be made and proved, namely (a) that 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.'' C
The onus is on the applicant to prove the two essential elements set out above. Part of the second
element is lack of consent. In Botha & Anor v Barrett 1996 (2) ZLR 73 (S) at 79-80, it was said by
GUBBAY CJ:
`Ìt is clear law that in order to obtain a spoliation order two allegations must be made and
proved. These are: D
(a) 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 [the court's emphasis].
...
It was for the respondent to show that he had not consented to being deprived of
possession. No onus rested upon the appellants, as the learned judge perceived, to establish the
respondent's consent. E
Consent to the deprivation may be expressly given, as where the possessor is present at the
time, is spoken to and gives his permission. Or it may be implied from the conduct of the possessor
both before and after the removal of his property. In casu, as I have mentioned, it was for the
respondent to satisfy the court on a balance of probabilities that any actions or omissions bearing
upon his loss of possession, did not warrant a finding that he had been a consenting party.'' F
Furthermore, the applicant's possession must not be mere physical possession. Physical possession
must be accompanied by requisite animus or intent. This was clearly expressed by ADDLESON J in
Bennett Pringle (Pvt) Ltd v Adelaide Municipality 1977 (1) SA 230 (E) at 233G-H as follows:
`Ìn terms of all the authorities cited, the G `possession', in order to be protected by a
spoliatory remedy, must still consist of the animus - the ìntention of securing some benefit to' the
possessor; and of detentio, namely the `holding' itself ... 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 the benefit to
himself; and (c) is deprived of such use and benefit by a third person.'' H
1998 (2) ZLR p414
SMITH J
The statement was cited with A approval in Davis' case supra at 141. See, too, Yeho v Qana 1973 (4)
SA 735 (A) at 739.
I agree with the submissions of Mr Ncube that the applicant has not discharged the onus which
rested on it. The three essential elements are peaceful possession, wrongful deprivation and lack of
consent and I will deal with each in turn.
Peaceful possession: the cattle were B undoubtedly kept on Diana farm, which is owned by the
applicant. Prior to the death of Charles Chikerema, although they were on the farm, they were
undoubtedly in his possession. In the founding affidavit, James Chikerema merely states that the
applicant carried out ``farming business operations'' on the farms and that the livestock were in its
possession. There is no evidence as to the animus or intention of the C applicant in relation to the
livestock, which had belonged to the late Charles Chikerema. Moreover, whilst the applicant has
established that the cattle on Diana farm were in its physical possession, in that it owned the farm,
there is no proof that the ostriches, goats, sheep and other livestock on the Msengezi farm were in
its possession.
Wrongful possession: whilst there are D disputes on the papers as to the ownership of some of the
cattle that were removed from Diana farm, on balance I feel that Madondo has established that the
cattle he removed were properly identified by the former employees of the late Charles Chikerema.
The affidavits by members of the Chikerema family as to the cattle owned by them that were kept
on Diana farm are very vague and indefinite, in so far as they relate to the identification of E
individual animals. Section 42 of the Administration of Estates Act [Chapter 6:01] provides as
follows:
`Èvery person not being the executor of the estate of a deceased person duly appointed in
Zimbabwe who has custody of any property or asset belonging to such estate shall forthwith either
deliver such property or asset to the duly appointed executor, if any, then being in Zimbabwe or
report the particulars thereof to the Master ... '' (my emphasis).
The clear intention of that section F is to require any person who has custody of property which
belonged to a person who has died to surrender the property to the executor of the estate of the
deceased. He cannot, in my opinion, withhold such property from the executor on the grounds that
he has reported to the Master. In this case, there is no allegation that any such report was made.
Madondo has a duty to recover and safeguard all property, which forms part of the estate of the late
Charles Chikerema. I am satisfied, on the papers, that Madondo took all reasonable steps to identify
the G cattle and other livestock that belonged to the late Charles Chikerema and that he was fully
justified in his decision to remove the livestock from Diana farm and the Msengenzi farm. Therefore,
I find that the removal of the livestock was not unlawful. H
1998 (2) ZLR p415
SMITH J
Lack of consent: James Chikerema denies A that he was present when the cattle were removed
from Diana farm. He also denies that he received the letter from Madondo advising that he intended
to remove the livestock. Madondo produced a copy of the letter he wrote to James Chikerema
advising him of his intention to take possession of the livestock. He also deposed that James
Chikerema was present when he arrived at Diana farm to fetch the cattle. Praxedes Chikerema,
widow of the late Charles Chikerema, and Isaac Jenjere and Jonah Shanganani, former employees of
the late Charles Chikerema who B assisted in identifying the cattle that Madondo removed, also
deposed that James Chikerema was present when they arrived on Diana farm and started to identify
which cattle should be removed. They all said that James Chikerema did not try to stop this or forbid
them taking the cattle. He watched for a while and then left. Accordingly, I find that the applicant
has not C established that it did not consent to the removal of the livestock
For the reasons set out above, I consider that the provisional order should not be confirmed.
COUNTER-APPLICATION D
I do not consider that there is any basis in law for the submission by Mr Shortgame that Madondo is
not entitled to make a counter-application and join it with his opposition to the application made by
the applicant. E
It seems to me, as I have said earlier, that Madondo took all reasonable steps to identify the
livestock which belonged to the late Charles Chikerema and which now form part of the estate. The
affidavits by the former employees of the late Charles Chikerema have the ring of truth and can, I
feel, be accepted and relied upon. Jonah Shanganani, who herded the cattle, has identified the
cattle. It was his job to look after them on a daily basis. He branded some of them and those he is F
able to identify through their brand marks. Of the cattle, which were branded before Charles
Chikerema's death, there can be no dispute about their ownership. Those are in the overwhelming
majority, ie l80 of them.
Of the remaining 45, which were not branded by the time of their removal, 2 were Brahman bulls,
which were clearly bought by Charles Chikerema and still carry the brand marks of G the person
from whom they were bought. Once again there is no possible ground for disputing the estate's
ownership of these two bulls. The remaining 43 cattle had their ears pierced by their herdboy and
tagged to identify them.
It has also been clearly established that the ostriches belonged to Charles Chikerema. Titus Ruwizhi,
who looked after them from the time Charles H
1998 (2) ZLR p416
SMITH J
Chikerema started the venture into ostriches, clearly established A that they form part of the estate
property. Likewise, his affidavit and that of Emmanuel Dombe clearly established that the sheep and
goats belonged to Charles Chikerema. Ownership of the horses and other property claimed by
Madondo is not disputed by the applicant.
Accordingly, I consider that Madondo is entitled to B the order sought in his counter-application.
REPRESENTATION OF APPLICANT
On the return date for the confirmation of the provisional order, there was no appearance C for the
applicant. James Chikerema was present in court but I advised him that he was not entitled to
represent the applicant. The hearing was accordingly postponed so that a legal practitioner could be
obtained. My advice was based on the judgment delivered in Pumpkin Construction (Pvt) Ltd v
Chikaka 1997 (2) ZLR 430 (H). My attention has been drawn to Zimbabwe Banking Corp Ltd v Pindi
Electrical & Hardware (Pvt) Ltd & Ors 1998 (2) ZLR 210 (H) D where MUBAKO J arrived at a different
conclusion. In that judgment, MUBAKO J said at p 211B:
`Ì assume that that you base your assertion on the South African law or Zimbabwean law
prior to 1981. Since then a company or partnership may self-act in any court through its director, or
officer in its sole employment and doing so for no extra pay or reward. Legal Practitioners Act 1981,
s 9(2)(c).''
At p 211C-D, he went on to say: E
`Ì am aware that our rules have not incorporated the provisions of s 9(2)(c) and that certain
decisions have sought to point to this as proof that the old prohibition over self-action still subsists
eg Pumpkin Construction (Pvt) Ltd v Chikaka. However, it is self evident that neither an omission to
alter the rules of the High Court nor decisions of judges can amend or nullify a right granted by Act
of Parliament - namely the right of self-acting by corporations or partnerships. For a clear statement
of the law since 1981, see also Professor Christie's Business Law In Zimbabwe 1985 p 421.''
The Legal Practitioners Act 1981 is F part of the present Revised Edition of the Laws. Its proper title
now is the Legal Practitioners Act [Chapter 27:07]. Section 9 (2) thereof reads as follows:
``(2) Subject to any other law, no person other than a registered legal practitioner who is
in possession of a valid practising certificate issued to him, shall -
(a) sue out any summons or process or G commence, carry on or defend any
action, suit or other proceeding in any court of civil or criminal jurisdiction in the name of any other
person; or
(b) for or in expectation of any fee, commission, gain or reward in any way
instruct or assist any other person to sue out or threaten to sue out any summons or process or to
commence, carry on or defend any action, suit or other proceeding in any court of civil or criminal
jurisdiction; or H
1998 (2) ZLR p417
SMITH J
(c) appear, plead or act in the capacity of a A legal practitioner for or on behalf
of any other person in any action, suit or other proceeding in any court of civil or criminal
jurisdiction:
Provided that, nothing in this subsection contained shall prevent any director or
officer in the sole employment of a corporation or any member of a partnership doing any such act
as is mentioned in paragraph (a) in the name of such corporation or partnership.'' B
Paragraph (c) of s 9(2) does not confer any rights on a company or partnership to self-act. In fact, it
sets out prohibited acts. I presume that the learned judge in fact meant to refer to the proviso to s
9(2), and not to para (c) thereof, when he said that `òur rules have not incorporated the provisions
of s 9(2)(c)''. The implication in his judgment is that the proviso to s 9(2) was inserted for the first
time in the statute law of this country by the Legal Practitioners Act 198l - hence his reference to
Christie's Business Law in Zimbabwe for a clear C statement of the law since 1981. The Legal
Practitioners Act 198l repealed and replaced the Attorneys, Notaries and Conveyancers Act [Chapter
218 of 1974]. Section 21 of that Act dealt with offences by unqualified persons. Subsection (2)
thereof was virtually identical to s 9(2) of the Legal Practitioners Act, 198l. It, too, contained a
proviso, which is virtually identical to the proviso to s 9(2). Chapter 218 of the D 1974 Revised
Edition of the Law appeared as [Chapter 202] in the 1939 Revised Edition of the Laws. That Act
replaced the original Attorneys, Notaries and Conveyancers Act 3 of 1938 which contained a proviso
almost identical to the present proviso to s 9(2) - see s 25(2) thereof. The assertion by MUBAKO J
that the Act of 198l changed E the law that was previously in force in relation to the right of
companies and partnerships to be represented by a director or officer or a partner, as the case may
be, is simply not true. The provision contained in the proviso to s 9(2) of the present Act has been
part of our law since 1938.
I therefore reiterate the views expressed in the Pumpkin Construction case, supra. F The proviso to
s 9(2) of the Act does not, in my view, permit a company or partnership to be represented by a
person other than a legal practitioner. It does not permit a director or officer to represent a
company in legal proceedings.
It merely provides that subs (2)(a) shall not prevent such representation. Therefore, the Magistrates
Court Rules, which authorise such representation, are not inconsistent with s 9(2)(a) and so cannot
be held to be ultra vires. As G pointed out in the Pumpkin Construction case, supra, there is no
equivalent provision in the High Court Rules. Until such time as a similar provision is inserted in the
High Court Rules, a company cannot, in my opinion, be represented by a director or officer in
proceedings before the High Court.
In Joubert The Law of South Africa vol 5 at para 481 the learned author explains the meaning and
object of the stare decisis principle as follows: H
1998 (2) ZLR p418
SMITH J
``This expression means `to A stand by decisions' and refers to a doctrine that must be
borne in mind by every court when rendering a decision involving a legal principle, both as to
common law and as to statutory law. The object of the doctrine is to avoid uncertainty and
confusion, to protect vested rights and legitimate expectations as well as to uphold the dignity of the
court.''
At para 486, dealing with decisions of provincial and local divisions, the learned author goes on to
say:
`À single judge will always B be bound by a decision of two or more judges of the same
division and a single judge will always consider himself bound by another judge of the same
province, unless he is satisfied that his brother was clearly wrong.''
In Levin & Co Ltd v Berg River Flour Mills (WLD September 1920, reported in a note in 1938 WLD at
94) WARD J cited the following from In re Hotchkiss's Trusts (8 Eq 643):
`Ì should without expressing C any opinion of my own, simply have followed the decision
of the Vice-Chancellor in that case, because I should not think it seemly that two branches of a court
of co-ordinate jurisdiction should be found coming to contrary decisions upon similar instruments
and encouraging as it were a race, by inducing persons who wish for one construction to go to one
court and those who wish for another construction to go to another court.''
It is ordered that: D
1. The provisional order granted to the applicant is discharged with costs;
2. An order in terms of the draft order annexed to the counter-application is granted.
Karuwa & Associates, applicant's E legal practitioners
Kantor & Immerman, respondent's legal practitioners
KAMA CONSTRUCTION (PVT) LTD v COLD COMFORT FARM CO-OPERATIVE & ORS 1999 (2) ZLR 19
(SC)
1999 (2) ZLR p19

Citation 1999 (2) ZLR 19 (SC)
Case No Judgment No. S-77-99
Court Supreme Court, Harare
Judge McNally JA, Muchechetere JA, Sandura JA B
Heard July 1, 1999
Judgment July 9, 1999
Counsel R Y Phillips, for the appellant
P Nherere, for the respondent
Annotations None
Civil appeal
[zFNz]Flynote
Property and real rights - spoliation order - when may be granted - limits as to circumstances when
may be granted - C concept of quasi-possession giving right to spoliation order - not extending to
right of access to property granted under a management agreement
[zHNz]Headnote
The appellant company had entered into an arrangement with the trustees of the respondent co-
operative with a view to restoring the co-operative to financial viability. It became involved in the
management of the farm run by D the co-operative and in various of the farm's activities. A dispute
later arose and the arrangement was terminated by the co-operative. The appellant sought a
spoliation order from the High Court, restoring it to peaceful possession of the farm. A provisional
order was granted, but was not confirmed. The appellant appealed against the refusal to grant the
spoliation order.
Held, that a spoliation order was not the proper remedy for the wrong alleged by the appellant; it
should have sued for specific performance of the contract, together with interlocutory relief in the
form of an interdict. Nonetheless, it would have been entitled to an interdict if it could have
established possession and unlawful E dispossession.
Held, further, that the law also recognises so-called quasi-possession or juridical possession.
Spoliation would be available as a remedy where a person has been deprived unlawfully of his quasi-
possession of a moveable or immoveable incorporeal. For example, to cut off the supply of
electricity to an apartment is to seriously interfere with the possession of the apartment. But one
must not overstate the availability of spoliation proceedings in F regard to quasi-possession or
define too widely the concept of quasi-possession.
Held, further, that the appellant had never possessed the farm. It had access to the farm, and still
had, as a member of the co-operative. What it had lost was its right to give orders to the farm
employees. This was only a contractual right, but did not found a contractual right of use.
[zCIz]Cases Considered
Cases cited: G
Beukes v Crous 1975 (4) SA 215 (NC)
Botha & Anor v Barrett 1996 (2) ZLR 73 (S)
Naidoo v Moodley 1982 (3) SA 82 (T)
Plaatjie & Anor v Olivier NO & Ors 1993 (2) SA 156 (O)
Sebastian & Ors v Malelane Irrigation Bd 1950 (2) SA 690 (T)
Shoprite Checkers Ltd v Pangbourne Properties Ltd 1994 (1) SA 616 (W)
Zulu v Min of Works, Kwazulu & Ors 1992 (1) SA 181 (D) H
1999 (2) ZLR p20
R Y Phillips, for the appellant A
P Nherere, for the respondent
[zJDz]Judgment
McNally JA: Cold Comfort Farm Co-operative on the outskirts of Harare is an enterprise which has
played a major role in the history of Zimbabwe. In recent times however it fell into administrative
and financial difficulties. It B was controlled by Cold Comfort Farm Trust (the Trust), whose
Chairman was the Honourable Didymus Mutasa.
Mr Mutasa, in about March 1997, had a discussion with one Israel Magwenzi. Mr Magwenzi, who
was the managing director of the appellant (Kama Construction) was initially interested in the farm
from the point of view of a property developer. After discussion there was some kind of
understanding that Mr Magwenzi and his C company would become involved in the management
of the farm in order to restore it to viability. Whether a contractual management agreement was
ever entered into is hotly disputed. Certainly, Mr Mutasa wrote on 28 July 1997, appointing Kama
Construction as the director of the Farm "to ensure the day to day running of the D Trust". And
both Kama Construction and Mr Magwenzi were made members of the Cold Comfort Farm Society.
But no remuneration seems to have been discussed.
However, there is no doubt that Kama Construction did become involved in the management of Cold
Comfort Farm and of various of its activities as from 1 April 1997. Kama appointed Mr Tobias Rukete
to act in a E managerial capacity, and a Mr Aboo Karim as a technical manager responsible for non-
agricultural operations on the farm.
In about mid-October 1998, this arrangement was abruptly terminated. The details of how this came
about are in dispute. Kama Construction says "keys to offices, workshops and vehicles were forcibly
and unlawfully taken F possession of by the fourth respondent (Mr Gwatidzo). These keys are
normally kept by Mr Rukete." On the other hand, Mr Rukete himself denies this. He says he never
had most of the keys and he knows nothing of anyone being forcibly deprived of them.
Be that as it may, there is no dispute that as from mid-October 1998 the employees on the farm
(who were all employees of the Trust and not of Kama Construction) were told to take their orders in
future from Mr Gwatidzo and not from Mr Magwenzi. The management agreement (as the appellant
describes it) or the interim G management arrangement (as the respondents' describe it) was
terminated.
Kama Construction then sought, and obtained, from the High Court on 27 November 1998, a
provisional order in the following terms:
" (1) That the first - fourth respondents restore the applicant to the peaceful possession
H
1999 (2) ZLR p21
Mc NALLY JA
of Stand 4548 Tynwald Township, also known as Cold Comfort Farm within seventy
two hours of the service of A this order, failing which the sixth respondent is ordered to restore the
applicant to the peaceful possession of the said Cold Comfort Farm.
(2) That the applicant shall institute proceedings within 10 court days of the
confirmation of this order for an order declaring that the management agreement between the first
and second respondents and itself still persists, failing which this order shall lapse. B
(3) That the first - fourth respondents shall pay the costs of this application jointly and
severally, the one paying the other to be absolved.
(4) That fifth respondent shall pay the costs of this application jointly and severally with
the first - fourth respondents if it opposes the relief sought by the applicant herein.
INTERIM RELIEF GRANTED C
Pending the institution and determination of the proceedings in para 2 of the final order
sought:
(1) the purported sale of 70 hectares of Cold Comfort Farm by the first, second and
third respondents to the fifth respondent is stayed.
(2) the first - fourth respondents are interdicted from transferring the portion of land of
Cold Comfort D Farm purportedly sold to the fifth respondent.
(3) the first - fourth respondents are interdicted from selling, alienating or disposing of
any portion of Cold Comfort Farm without the consent and authority of the applicant."
The provisional order came for confirmation before a different judge on 16 February this year, and
on 17 March it E was discharged with costs. Kama Construction now appeals. The fifth and sixth
respondents have not contested the matter at any stage.
The relief applied for was in essence a spoliation order. It is trite that in order to obtain a
"mandament van spolie" or spoliation order, the applicant must show that:
(a) he was in peaceful and undisturbed possession of the thing; and F
(b) he was unlawfully deprived of such possession.
See Joubert Law of South Africa Vol 27 para 78; Botha & Anor v Barrett 1996 (2) ZLR 73 (S) at 79E-F.
The only valid defences that may be raised are that:

(a) the applicant was not in peaceful and undisturbed possession of the thing in question at the
time of the G dispossession;
(b) the dispossession was not unlawful and therefore did not constitute spoliation;
(c) restoration of possession is impossible;
(d) the respondent acted within the limits of counter-spoliation in regaining possession of the
article. H
1999 (2) ZLR p22
Mc NALLY JA
See Joubert op cit supra para 79. A
In my view, the confirmation of the order was properly refused in the court a quo. I come to this
conclusion because I consider that a spoliation order was not the proper remedy for the perceived
wrong alleged by the appellant. The real complaint of Kama Construction is that it alleges that the
respondents are in breach of the alleged management agreement. They should have sued for
specific performance of the alleged contract, B together with interlocutory relief in the form of an
interdict, if they believed such relief was available.
Despite this, Kama Construction would still be entitled to relief in the form of a spoliation order if it
established the two averments mentioned earlier, i.e. possession and unlawful dispossession.
The concept of "possession" is widely defined (see Joubert op cit para 52). Joubert states that: C
"The law also recognises so-called quasi-possession or juridical possession (possessio juris).
This notion consists in the exercise of control over an incorporeal coupled with an animus to exercise
such control. Factual control of an incorporeal is exercised whenever the thing is exploited in
accordance with an actual or presumed legal right (for example, a servitude or a contractual right of
use) with regard to the thing." D
It follows that a spoliation order is available as a remedy where a person has been deprived
unlawfully of his quasi-possession of a moveable or immovable incorporeal. Such orders have been
granted where, for example, a lessor cuts off the flow of electricity to the lessee's apartment
(Naidoo v Moodley 1982 (4) SA 82 (T)), where a public authority cuts off the flow of water to a farm
(Sebastian & Ors v Malelane Irrigation Board 1950 (2) SA 690 E (T)), or where the owner of a
servient tenement padlocks a gate and closes down a road used by the owner of the dominant
tenement across his farm (Beukes v Crous 1975 (4) SA 215 (NC)).
But one must be careful not to overstate the availability of spoliation proceedings in regard to quasi-
possession. F Or, to put it another way, one must be careful not to define too widely the concept of
quasi-possession. To cut off the supply of electricity to an apartment is seriously to interfere with the
possession of that apartment. The quasi-possession is an essential incident of the possession of the
apartment. One may comment similarly on the other two examples given. In the present case, we
are not concerned with quasi-possession incidental to actual possession. G
The applicant never "possessed" Cold Comfort Farm. It had access to the farm. It still has that access,
as a member of the Cold Comfort Farm Society. What it has lost is its alleged contractual right to give
orders to the workers on the farm in pursuance of an alleged management agreement. Such an
agreement does not found a "contractual right of use".
The distinction, difficult to define but easy to recognise, has been H
1999 (2) ZLR p23
Mc NALLY JA
acknowledged in a number of decided cases. Mr Nherere cited Zulu v Minister of Works, Kwazulu &
Ors 1992 A (1) SA 181 (D) at 188H et seq; Plaatjie & Anor v Olivier NO & Ors 1993 (2) SA 156 (O) at
159F-160A, and Shoprite Checkers Ltd v Pangbourne Properties Ltd 1994 (1) SA 616 (W) at 622B-
623C.
I rely in particular on one quotation from these cases, a passage from the judgment of Hattingh J in
Plaatjie supra B and from that of Thirion J in Zulu supra, cited with approval by Zulman J (as he then
was) in Shoprite Checkers supra at 623B-C:
"If the protection given by the mandament van spolie were to be held to extend to the
exercise of rights in the widest sense, then rights such as the right to performance of a contractual
obligation would have to be included, which would be to extend the remedy beyond its legitimate
field of application and usefulness." C
As Thirion J said at 190G-H in Zulu supra:
"To hold otherwise, would in effect mean that the court would grant an order for specific
performance of a contractual obligation in proceedings where the respondent is precluded from
adducing evidence to disprove the existence of the obligation."
The appeal is dismissed with costs. D
Muchechetere JA: I agree.
Sandura JA: I agree. E
Dube Manikai & Hwacha, appellant's legal practitioners
Stumbles & Rowe, respondents' legal practitioners
POTGIETER EN 'N ANDER v DAVEL 1966 (3) SA 555 (O)
Citation 1966 (3) SA 555 (O)
Court Oranje-Vrystaat Provinsiale Afdeling
Annotations
DE WET, R. A
1966. Mei 28; Junie 9.
[zFNz]Flynote : Sleutelwoorde
Hof - Regshulp op die Hooggeregshof beroep - Landdroshof het jurisdiksie - Houding van Hof -
Interdik - Mandament van spolie - Wanneer toepaslik - Wanneer toegestaan.
[zHNz]Headnote : Kopnota
Dit is hoogs laakbaar dat partye hulle op die Hooggeregshof beroep waar die landdroshof jurisdiksie
het om dieselfde regshulp te verleen. In sulke gevalle behoort die Hof oorweging daaraan te skenk of
'n aansoek nie vir gemelde rede van die hand behoort gewys te word nie.
'n Mandament van spolie is alleenlik van toepassing op gevalle waar persone ontroof word van hul
goed of 'n deel van hul goed of van hul regte van besit daarvan, waar die besit oorgegaan het na die
persoon of persone wat verantwoordelik was vir sodanige ontrowing en derhalwe in staat is om
sodanige besit te herstel aan die persoon of persone wat daarvan ontneem is.
Dit sou verregaande wees indien in gevalle van saakbeskadiging, waar daar altyd 'n inbreuk op 'n
persoon se besitregte gemaak word, die verontregde hom op die mandament van spolie kan beroep
en spesifieke nakoming kan vorder. In sulke gevalle is die aangewese regsmiddel 'n eis om
skadevergoeding.
In 'n aansoek om 'n bevel waarvolgens respondent, 'n boer, gelas moet word om twee strooihuise,
waarin applikante, sy werknemers, op sy plaas gewoon het, en wat hy sou afgebreek het, op te rig
en te herstel,
Beslis, aangesien respondent tans niks besit wat hy aan applikante kan teruglewer en herstel nie, dat
die aansoek van die hand gewys moet word met koste.
Court - Relief sought in Supreme Court - Magistrate's court having jurisdiction - Attitude of the Court
- Interdict. - Mandament van spolie - When applicable - When granted. It is highly objectionable that
parties should invoke the Supreme Court where the magistrate's court has jurisdiction to grant the
same relief. In such cases the Court ought to consider whether or not the application should not for
that reason be refused.
A mandament van spolie is only applicable in cases where persons are deprived of their possession
or part of their possession or their rights of possession, where the possession has passed over to the
person or
perons who were responsible for such deprivation and thus are in a position to restore such
possession to the person or persons who have been deprived therof.
It would be far reaching if, in cases of damage to property, where there is always an inroad upon a
person's right of possession, the injured party could invoke the mandament van spolie and claim
specific performance. In such cases the proper remedy is a claim for damages.
In an application for an order in terms of which respondent, a farmer, should be ordered to erect
and restore two straw huts in which applicants, his employees, had lived on his farm, and which he
had broken down,
Held, as the respondent now possessed nothing which he could return and restore to applicants,
that the application should be dismissed with costs.
Aansoek om 'n bevel wat die respondent las om sekere strooihuise weer op te rig en herstel. Die
feite blyk uit die uitspraak.
E J. J. F. Hefer, namens die applikante: Indien die applikante se bewerings van vrye en ongestoorde
besit en die versteuring daarvan deur die afbreek van die twee huise juis is, is hulle geregtig op die
aangevraagde bevel. Kyk Burger v van Rooyen en 'n Ander, 1961 (1) SA 159.
F H. J. O. van Heerden, namens die respondent: Een van die vereistes van die toestaan van 'n
spoliasie aansoek is dat daar 'n besitontrowing
1966 (3) SA p556
DE WET, R.
moes gewees het. Die spoliator word dan beveel om die verontregte ante omnia in sy besit te
herstel en dit veronderstel dat die spoliator self in besit van die betrokke saak is. Kyk Nino Bonino v
de Lange, 1906 A T.S. op bl. 122; Scoop Industries v Langlaagte Estate and G.M. Co., 1948 (1) SA op
bl. 99. Daarom word geen spoliasie bevel verleen indien die spoliator inmiddels die betrokke saak
vervreem het nie, tensy hy dit gedoen het met die doel om die aansoek teen hom te laat misluk. Kyk
Burnham v Neumeyer, 1917 T.P.D. op bl. 633. 'n Duidelike verskil moet B getrek word tussen
besitontwrigting en besitsteuring. In geval van blote besitsteuring wat nie gepaard gaan met
besitwegname nie kan die verontregte nie op die mandament van spolie steun nie, want die
delikspleger is dan nie in besit van iets nie en kan derhalwe nie besit herstel nie. Kyk Van Rooyen v
Burger, 1960 (4) SA op bl. 362 - 3; Price, Possessory Interdicts, bl. 106, 111; Setlogelo v Setlogelo,
1914 C A.D. op bl. 205; Lee & Honoré, S.A. Law of Property, bl. 8. Indien A opsetlik of nalatiglik 'n
bom op grond in B se besit laat ontplof waardeur 'n krater ontstaan, word B wel gedeeltelik in die
besit van sy grond gesteur maar nie van besit ontroof nie. Die mandament is dan nie die gepaste
middel nie, want A besit nie iets waarvan hy B ontroof het D nie en daar is derhalwe niks wat hy aan
die besit van B kan herstel nie. Kyk Mostert v Smidt, 1 R. 24. In uitsonderingsgevalle kan in gevalle
van besitsteuring 'n positiewe interdik verleen word, d.w.s. 'n interdik wat die onregspleger verplig
om iets te doen. Dit sal egter slegs gebeur indien hy 'n onregmatige handeling verrig het wat van
deurlopende aard is en indien die ander vereistes vir 'n gewone interdik E teenwoordig is. 'n
Applikant, wat op 'n interdik aanspraak maak, moet, onder andere, aantoon dat daar geen regshulp
is wat hom voldoende bevrediging sal gee nie. Dit volg dus dat indien skadevergoeding die onreg sal
herstel, geen interdik verleen sal word nie. Kyk, Nathan, Interdicts, bl. 307; Buitendach and Others v
West Rand (Pty.) Mines, F Ltd., 1925 T.P.D. op bl. 906. Uit die stukke voor die Hof, blyk dit duidelik
dat skadevergoeding die appellante genoegsaam sal bevredig ten opsigte van die beweerde onreg.
Hulle kon reeds lankal die hutte self laat opbou het, en die koste daaraan verbonde van die
respondent geëis het. Kyk Nathan, op. cit., bl. 33. Indien applikante wel aanspraak op 'n interdik
gehad het, sou dit beteken dat 90 persent van onregmatige dade G die verontregte aanspraak sou
hê op 'n bevel dat die onregspleger die status quo ante moet herstel anders as deur betaling van
skadevergoeding, bv. in die geval waar 'n motor beskadig is in 'n botsing. Dit is erkende reg dat die
verontregte slegs skadevergoeding kan vorder en nie aanspraak het op 'n bevel wat die onregspleger
verplig om die motor te herstel nie.
H Hefer, in repliek.
Cur. adv. vult.
Postea (Junie 9).
[zJDz]Judgment
DE WET, R.: Applikante doen aansoek om 'n bevel waarvolgens respondent gelas moet word om
binne veertien (14) dae vanaf die datum van die bevel twee strooihuise wat hy sou afgebreek het op
daardie gedeelte
1966 (3) SA p557
DE WET, R.
van die plaas Montrosa, distrik Bloemfontein, waarop die applikante woon, op te rig en te herstel
sodat dit in dieselfde toestand en kondisie sou wees as waarin dit was voordat respondent dit sou
afgebreek het op 28 Januarie 1966.
A Luidens die feite, wat gemenesaak is in die onderhawige aansoek, het applikante 'n gedeelte van
die plaas Montrosa, waarvan respondent die eienaar is, bewoon en besit. Op die 28ste Januarie
1966, terwyl applikante in besit was van 'n gedeelte van gemelde plaas, was daar op diégedeelte van
gemelde plaas bewoon deur applikante twee strooihuise B gebou van gebakte steen en met sement
gepleister asook elk voorsien van 'n sinkdak met 'n deur aan elke kant. Tot op 28 Januarie 1966 het
applikante se werknemers in gemelde twee strooihuise gewoon. Op die 28ste Januarie 1966 het
respondent met die hulp van sy Bantoearbeiders gemelde twee strooihuise tot op die grond
afgebreek en die afgebreekte materiaal net so laat lê sonder om enigiets daarvan te verwyder. Die C
geskil wat aanleiding gegee het tot die afbreek van gemelde strooihuise is vir die doeleindes van die
onderhawige aansoek nie ter sake nie.
Ten opsigte van die waarde van gemelde strooihuise bestaan daar 'n geskil op die feite. Respondent
beweer dat gemelde twee strooihuise se D maksimum waarde R40 was, terwyl applikante
daarenteen aanvoer dat die waarde van gemelde twee strooihuise minstens R500 was. Respondent
beweer ook dat gemelde twee strooihuise, nà die afbreek daarvan, deur applikante weer opgebou
en herstel is, welke bewering geheel en al deur applikante ontken word.
Mnr. Hefer, namens applikante, betoog dat die regsgrond waarop hy steun E vir die regshulp wat hy
aanvra, gebaseer is op die mandament van spolie. Hy betoog dat respondent se handelswyse deur
die strooihuise af te breek, inbreuk gemaak het op applikante se vrye en ongestoorde besit van die
betrokke gedeelte van die plaas. Mnr. Hefer gee toe dat hy nie in die onderhawige geval 'n interdik
kan aanvra nie aangesien 'n eis om F skadevergoeding die beweerde onreg ten volle kan herstel.
Mnr. van Heerden, namens respondent, het mnr. Hefer se standpunt dat hy in die onderhawige
geval kan steun op die mandament van spolie, hewig aangeveg. Hy betoog dat een van die vereistes
vir die bestaan van 'n spoliasie-aansoek is dat daar 'n besitontrowing moes gewees het. Die spoliator
word dan beveel om die verontregde ante omnia in sy besit te herstel, en dit veronderstel dat die
spoliator self in besit van die G betrokke saak is. Mnr. van Heerden betoog dat in die onderhawige
geval respondent hoogstens 'n onregmatige daad begaan het deur die strooihuise af te breek en dat
daar tans niks in sy besit is wat hy kan herstel nie. Volgens mnr. van Heerden was die aangewese
regsmiddel van applikante alleenlik 'n eis om skadevergoeding.
H Alvorens ek daartoe oorgaan om die meriete van die onderhawige aansoek te oorweeg, wil ek
daarop wys dat hierdie duidelik 'n geval is wat nie in die Hooggeregshof aanhangig moes gemaak
gewees het nie. Applikante kon 'n mandament van spolie in die landdroshof aangevra het indien
sodanige regsmiddel in die onderhawige geval aangewend kon word, aangesien die waarde van die
afgebreekte strooihuise hoogstens R500 beloop. Vgl. Zinman v Miller, 1956 (3) SA 8 (T) ). Na my
mening is dit hoogs laakbaar dat partye hulle beroep op die Hooggeregshof,
1966 (3) SA p558

DE WET, R.
waar die landdroshof jurisdiksie het om dieselfde regshulp te verleen. In sulke gevalle behoort die
Hof oorweging daaraan te skenk of 'n A aansoek nie vir gemelde rede van die hand behoort gewys
te word nie. (Vgl. Waja and Others v Polak, 1927 W.L.D. 32). Alhoewel ek van mening is dat
applikante in die onderhawige geval verkeerdelik die Hooggeregshof genader het, sal ek egter
nogtans in die uitoefening van my diskresie die aansoek oorweeg. Ek wil egter daarop wys dat dit
laakbaar is dat onnodige koste in die Hooggeregshof opgeloop word waar dieselfde regshulp in die
landdroshof aangevra kon word.
B In hul handboek South African Law of Property, Family Relations and Succession omskryf die
geleerde skrywers Lee en Honoré die regsmiddel mandament van spolie soos volg te bl. 8 tot 9:
'A person who complains that he has been unlawfully deprived of property immovable, movable or
incorporeal may apply to the Court for an interdict restraining the spoliator or any person who has
acquired C possession from him with knowledge of the spoliation from dealing with the property
pending an action, or for an order, termed a spoliation order, taking effect also as an interim
interdict, requiring him to show cause why he should not forthwith restore possession to the
applicant, No claim of right is admitted as an excuse for not obeying the order (spoliatus ante omnia
restituendus est).'
In Nino Bonino v De Lange, 1906 T.S. 120, sê INNES, H.R., te bl. 122, die volgende:
D 'Spoliation is any illicit deprivation of another of the right of possession which he has whether in
regard to movable or immovable property or even in regard to a legal right.'
In Zinman v Miller, supra te bl. 11, kom die volgende voor in die uitspraak van RUMPFF, R., soos hy
toe was:
'In dealing with the history of the mandament van spolie in Roman-Dutch Law Prof. Price in his
Possessory Remedies in Roman-Dutch Law, after E referring to van Alphen's Papegay, states:
'Nevertheless, from this time on spolie is recognised as a third possessory remedy to be used
in cases in which the other two remedies may for one reason or another not be brought.
The plaintiff was required to present a petition to the Hof van Holland or the Hoogen Raad,
setting forth the fact of peaceful possession and ejectment therefrom and asking for an order
whereby the defendant should F be required to restore the property in its former state and to
refrain from further acts of spoliation, with costs and damages.'
There seems to be no doubt that the mandament van spolie not only envisaged the return of
possession, but also a restoration. Van Alphen, in the precedent quoted in his Papegay, refers to an
allegation of interference with land by the spoliator as follows:
'heeft een partye van syns suppliants voorsz landed ofte steken (this should read 'af te
steken') ende af te delven, ende sulks den G suppliant daar van te spolieren . . . '
The 'suppliant' then claims:
'date den gedaagde sal worden gecondemneerd, de afstekings ende afdelings van 't Land . . .
kosteloos en schadeloos als spolie te repareren, ende 't voorsz. Landt te verhelen en de herstellen in
syne eersten ende gewoonlyken staat . . . '
Wassenaar, in his Practyk Judicieel, XIV, 1, refers to the remedy as follows:

H 'Want de actie competeert den gespolieerde, om wederom te bekomen alle schade die hy
geleden heeft, ende om in sulken staat herstelt te worden als hy soude geweest hebben, so hy niet
gespolieert ware geweest.'
Van der Linden in his Verhandeling van de Judicieele Practycq, 21. 1. also gives a precedent relating,
inter alia, to the removal of a fence and in which the claim is set out as follows:
' . . . dat alles te repareeren, en in vorigen staat te stellen, of te doen stellen, zo als het
geweest is, eer de voorsz. spolie werd gepleegd'.'
In van Rooyen en 'n Ander v Burger, 1960 (4) SA 356 (O) , het GROBLER, R., na 'n deeglike en
volledige verwysing na die gesaghebbendes, tot die volgende bevinding geraak te bl. 363 - 364:
1966 (3) SA p559
DE WET, R.
'Volgens my mening word dit nie vereis dat 'n persoon wat goed besit het, die goed of die besit of
beheer daaroor, of die gebruik of die genot daarvan geheel-en-al moes verloor het voor hy
aanspraak op 'n mandament van spolie kan maak nie. Hy is op dié middel geregtig as 'n deel van die
goed of van sy regte van besit daarvan, soos die gebruik of beheer, of genot daarvan onregmatiglik
van hom ontneem is. In kort beskou ek dat enige aansienlike of ernstige inbreuk op die regte van A
besit van 'n besitter waarskynlik deur 'n mandement van spolie beskerm sal word, omdat dit, in die
algemeen, op 'n ontneming van sodanige regte sal neerkom.
Waar gesaghebbendes dus verklaar dat 'n gespolieerde geregtig is op 'n bevel van teruggawe van sy
goed, of 'restitusie', word nie slegs bedoel dat die voorwerp wat hy voor die spolie besit en daarna
verloor het, aan hom terug moet gelewer word nie, maar dit sluit in:
(a) gevalle waar die besitter 'n mate van besit en van gebruik, en B genot daarvan
behou het, na die spolie, en
(b) 'n bevel dat die applikant herstel word in die volle besit, gebruik en genot van sy
goed, soos hy dit voor die spolie gehad het.'
(Kyk ook Maasdorp, Institutes of South African Law, 8ste uitg., band 2, bl. 21).
Na aanleiding van die gesaghebbendes betoog mnr. Hefer dat respondent se C handelswyse om die
strooihuise af te breek die gevolg het dat applikante van die gebruik, besit of genot daarvan
onregmatiglik ontneem is en dat respondent verplig moet word om applikante te herstel in die volle
besit, genot en gebruik daarvan, soos hulle dit voor die spolie gehad het. Mnr. Hefer voer aan dat
alhoewel respondent alleenlik D sodanige herstel kan bewerkstellig deur die strooihuise weer op te
bou, die Hof nogtans sodanige bevel kan verleen.
Na die oorweging van die gesaghebbendes, is ek egter van mening dat 'n mandament van spolie
alleenlik van toepassing is op gevalle waar persone ontroof word van hul goed of 'n deel van hul
goed of van hul regte van besit daarvan, waar die besit oorgegaan het na die persoon of persone E
wat verantwoordelik was vir sodanige ontrowig en derhalwe in staat is om sodanige besit te herstel
aan die persoon of persone wat daarvan ontneem is. In die onderhawige geval is die strooihuise
afgebreek en het geen besit daarvan oorgegaan na die respondent nadat hy gemelde strooihuise
afgebreek het nie. Respondent besit derhalwe tans niks wat F hy aan applikante kan teruglewer en
herstel nie. Na my mening het respondent in die onderhawige geval hoogstens die onregmatige
daad van saakbeskadiging begaan as gevolg waarvan applikante geregtig sou wees om
skadevergoeding te verhaal. Na my oordeel sou dit verregaande wees indien in gevalle van
saakbeskadiging, waar daar altyd 'n inbreuk op 'n persoon se besitregte gemaak word, die
verontregde hom op die mandament G van spolie kan beroep en spesifieke nakoming kan vorder. In
sulke gevalle is die aangewese regsmiddel, na my mening, 'n eis om skadevergoeding. In die
onderhawige geval kon applikante derhalwe alleenlik skadevergoeding gevorder het en kan die
regshulp wat aangevra word op grond van 'n mandament van spolie nie toegestaan word nie.
H Die aansoek word bygevolg van die hand gewys met koste.
Applikante se Prokureurs: Symington & de Kok. Respondent se Prokureurs: Lovius, Block, Meltz &
Cowan.
FREDERICKS AND ANOTHER v STELLENBOSCH DIVISIONAL COUNCIL* 1977 (3) SA 113 (C) E
Citation 1977 (3) SA 113 (C)
Court Cape Provincial Division
Annotations
DIEMONT, J.
F 1977. February 22, 25.
Interdict - Spoliation order - Mandament van spolie granted - Landowner demolishing houses
erected by squatters on its land without seven days' written notice as required by sec. 3 (b) (2) of Act
G 52 of 1951, amended - Court granting further order directing landowner to re-erect such houses.
In granting a mandament van spolie against the respondent, the respondent having unlawfully
demolished applicant squatters' houses on respondent's land without having first given them seven
days' written notice in terms of section 3 (b ) (2) of the Prevention of Illegal Squatting Act, 52 of
1951, as amended, the Court ordered respondent to re-erect the applicants' houses. H
Application for an order directing the respondent to restore the applicants' possessions removed by
the respondent and to re-erect their houses. The facts appear from the reasons for judgment.
L. R. Dison, S.C. (with him E. L. King ), for the applicants.
G. D. Griessel, for the respondent.
1977 (3) SA p114
DIEMONT, J.
Cur. adv. vult.
Postea (February 25). A
[zJDz]Judgment
DIEMONT, J.: When this matter was called on 22 February 1977 counsel for the respondent, Mr.
Griessel, stated that he had not had an opportunity to frame and file opposing affidavits. Notice of
the application had been given to the respondent on B the previous afternoon. The matter
appeared to be one of urgency and I accordingly gave Mr. Griessel until midday to file the
respondent's affidavits. Both the applicants' and respondent's affidavits as a result err on the side of
brevity but the points at issue emerge clearly and counsel are agreed that save for one issue on
which there is a dispute of fact, the matter can be dealt with without further delay.
The two applicants, Thomas Fredericks and Floris Cyster, are C both labourers in the building
industry and both lived until a week ago near the Old Paarl Road, Kraaifontein, in the Division of
Stellenbosch. The respondent is the Divisional Council of Stellenbosch.
Fredericks alleges in his affidavit that he is married, has two children and has lived with his family as
a squatter for some D two years near the Old Paarl Road. He says that his house was built of sheets
of corrugated iron which he bought for some R50 and erected himself. On 14 February both he and
his wife left the house together, locked the door and went off to work. On his return from work that
evening at 7 p.m. he found that his E house had been demolished during the course of the day by
the use of heavy machinery. The demolition was carried out by employees of the respondent Council
who removed the corrugated iron in a truck. He discovered that all his personal possessions and
clothing had also been removed and he said he was now wearing borrowed clothes. He said further
that he had F at no time received any notice of any kind of the respondent's intention to demolish
his house and remove his possessions. He was at home every evening and his wife was at home
during the daytime save for one day a fortnight when she went to work. As a result of respondent's
actions Fredericks said that he and his family were without a roof over their heads and during the
last weekend when there was heavy rain they were exposed to the elements without any sort of
shelter.
G Cyster made similar allegations. He too is a married man, 59 years of age, and has two children.
He said that in May 1976 he was evicted from his previous dwelling for inability to pay rent and he
had made application to respondent Council for a H house. At about this time he erected a house
near the Old Paarl Road at a cost of R58. At 1.30 p.m. on 14 February 1977 employees arrived on the
scene with a bulldozer. His name was taken by the Police and he was ordered to remove his
possessions from the house, after which the bulldozer demolished the dwelling. What was left of the
corrugated iron was removed in a lorry. Save for the warning which the Police gave him immediately
before the assault on his residence, he had at no time received any notice from the respondent. He
and his family were now living in the open in the veld where his house had previously stood. There
had been heavy rain over the
1977 (3) SA p115
DIEMONT, J.
weekend and all their possessions were soaked.
A further affidavit was filed by one Roberts who described himself as a community worker and co-
ordinator of the Cape Flats committee for interim accommodation. He stated that on 21 February he
had telephoned the secretary of the respondent A Council on behalf of the applicant and other
squatters in the area when he was informed that the Council had acted in its capacity as landlord
and not in its capacity as a local authority.
The applicants now sought an order from the Court in the following terms:
(a ) An order directing respondent immediately to restore B to the applicants and put

them in possession of all their possessions and building materials removed by respondent on 18
February 1977 and directing them immediately to re-erect the homes of the applicants forthwith.
(b ) An order calling upon the respondent to show cause why it should C not be
interdicted and restrained from further demolishing the homes of the applicants when re-erected.
(c ) An order calling upon the respondent to show cause why it should not pay the costs
of this application as between attorney and client.
(d ) Alternative relief.
D (e ) This rule to operate as an interim interdict.
In the opposing affidavit Sybrand Albertus Strauss van Zyl stated that he was the secretary of the
respondent Council and was authorised to make a sworn statement on its behalf. He admitted that
the houses of Fredericks and Cyster were demolished by employees of the respondent Council. He
stated that both these houses were situated on ground which was registered in the name of and
owned by the respondent Council. E He said neither applicant had permission to live on the
property. He admitted however that no written notice had been given to the applicants in terms of
sec. 3 (b ) (2) of the Prevention of Illegal Squatting Act, 52 of 1951, as amended, and he accordingly
conceded that respondent was not entitled to demolish the houses. He admitted further that
applicants were F entitled to the materials with which the houses had been built and tendered to
return these materials to the site where the houses had stood. He denied that the respondent
Council had possession of the applicants' clothing and he said he had no knowledge of the
whereabouts of the applicants' property.
He went on to make the following statement in para. 5 of his G affidavit:
"Wat die eis betref dat respondent weer huise vir applikante moet oprig sê ek:
(a ) dat applikante nie die toestemming het of gehad het van respondent om op
voormelde eiendom te woon nie en dat respondent reeds ongeveer Januarie 1977 besluit het dat
geen plakker of ander persoon op gemelde eiendom mag woon nie. Weens die kort tyd tot my
beskikking kan ek nie 'n afskrif van hierdie H Raadsbesluit voor die Hof lê nie.
(b ) Dat applikante derhalwe nie die toestemming van respondent as eienaar kon verkry
om op voormelde eiendom te woon nie.
(c ) Applikante sal dus, indien hulle gemelde huise bewoon, art. 1 (a ) van Wet 52 van
1951, soos gewysig, oortree en ingevolge art. 2 van gemelde Wet aan 'n misdryf skuldig wees.
(d ) Verder sal die her-oprigting van applikante se huise die goedkeuring van respondent
verg en totdat dit verkry is sal respondent ingevolge art. 3A (1) (a ) (ii) nie bewoning daarvan sal kan
toelaat nie en indien respondent dit toelaat sal respondent ingevolge art. 3A (2) aan 'n misdryf
skuldig
1977 (3) SA p116

DIEMONT, J.
wees."
In conclusion Van Zyl denied that he had stated that respondent had acted as a landlord in the
matter. He claimed that what he had said was that the respondent had taken action in its A capacity
as a landowner and not as a local authority.
Mr. Griessel, in opposing the granting of relief, contended that the applicants had acted unlawfully
and were not entitled to any relief from the Court. They did not have the permission of the
respondent to live where they were and were accordingly B trespassing. The houses which they had
erected did not comply with respondent's building regulations, had at no time received approval by
the local authority and were therefore unauthorised structures. To permit the occupation of these
buildings would be a contravention of the Prevention of Illegal Squatting Act, 52 of 1951, as
amended.
It seems to me that it ill behoves the respondent to accuse the C applicants of unlawfulness when
its own conduct is not above reproach. The Squatting Act, as it is referred to, gives little enough
protection to these unfortunate people who are without homes, but it does provide a limited
protection. Sec. 3B (2) of the Act provides as follows:
"A building or structure referred to in sub-sec. (1) may be demolished only after at least seven days'
written notice of D the intention to demolish has been given to the person who erected the building
or structure or who caused it to be erected, if he and his whereabouts are known, and such period
has expired."
In this case the respondent Divisional Council acted in flagrant contempt of the law. The secretary of
the Council admits that at no time were the applicants given notice that E their houses were to be
demolished. The picture which is conjured up on the affidavits is one of a ruthless disregard for the
rights of these people. Let us take the case of Fredericks. He is a labourer with a wife and two
children - the younger being four years old. He applied some years ago to the Kraaifontein
Municipality for a house, but as nothing was made available to him he did what most people in his
unhappy F situation would have done. He bought some corrugated iron sheets and erected a house
on empty ground. He lived there for two years. On 14 February he returned home after work to find
that his house was gone. During the day the respondent's servants had moved in and with the aid of
bulldozers and with the backing of the Police they had demolished Fredericks's G home. Not only
had all the building material been removed, but Fredericks's possessions were gone - his clothes, his
pots and pans, all his possessions such as they were - there was nothing left. Fredericks and his
family have remained on the site despite the rain and storm of the weekend.
What is respondent's attitude? There is no word of regret or apology expressed in the affidavits or
from the Bar. It is H merely conceded that no notice was ever served on the applicant and an offer is
made to dump the damaged sheets of corrugated iron back on the site.
I do not think that in these circumstances any Court would look upon the respondent's case with
enthusiasm. In any event the law is clear. Where the litigant seeks a spoliation order, a mandament
van spolie, the Court will not concern itself with the merits of the dispute. The essence of the
remedy is to restore the status quo ante. As was recently pointed out by the Court of Appeal in Yeko
v Qana, 1973 (4) SA 735 (AD) at
1977 (3) SA p117

DIEMONT, J.
p. 739, it matters not whether the applicant acquired occupation secretly or even fraudulently.
"For, as Voet, 41.2.16, says, the injustice of the possession of the person despoiled is irrelevant as he
is entitled to a spoliation order even if he is a thief or robber. The fundamental principle of the
remedy is that no one is allowed A to take the law into his own hands. All that the spoliatus has to
prove, is possession of a kind which warrants the protection accorded by the remedy, and that he
was unlawfully ousted."
Counsel for applicants, Mr. Dison, referred also to an earlier decision, De Jager and Others v Farah
and Nestadt, 1947 (4) SA 28 (W) . This was a case where demolition of premises was undertaken
without legal process. At p. 35 of the judgment, B MILLIN, J., is reported as stating:
"What the Court is doing is to insist on the principle that a person in possession of property,
however unlawful his possession may be and however exposed he may be to ejectment
proceedings, cannot be interfered with in his possession except by due process of law, and if he is so
interfered with the Court will restrain such interference pending the taking of action against him for
ejectment by those who claim that he is C in wrongful possession."
This Court is not concerned with the nature of the applicants' occupation. What it is concerned with
is that the respondent should not take the law into its own hands and act without regard to the
applicants' rights under the Squatters Act. Such conduct cannot be countenanced or condoned.
Mr. Griessel advanced a further argument. He contended that, D even if the applicants were
entitled prima facie to a spoliation order, the Court could not make the type of order asked for here.
It could not order the Divisional Council to re-erect the houses of the applicants. There had been no
attempt to describe or define the houses in the papers and the order sought was too vague. In any
event the Court could not possibly supervise the reconstruction and, that being so, it E would not be
possible to say whether the order had been properly carried out or not.
Again it seems to me that the argument is without substance. I can find no good reason in law or in
fact why I should not give the applicants the relief they claim.
Both counsel referred to the case of Zinman v Miller, 1956 (3) SA 8 (T) F . That was a case in which it
was held that the mandament van spolie may order something to be done in addition to the more
putting of the person spoliated back in possession of the thing spoliated. At p. 11 of the judgment
RUMPFF, J. (as he was then), cited Roman-Dutch authority for the proposition that when a
mandament van spolie was granted the defendant could be ordered not only to restore the property
but to G restore it in its former state. The defendant was accordingly ordered to replace the main
panel from an electric meter and to reconnect the electric wiring.
In an earlier case, Jones v Claremont Municipality, 25 S.C. 651, the respondent Council was ordered
to restore a fence H which it had destroyed and the acting CHIEF JUSTICE added:
"I wish to mark my sense of the impropriety of a public body taking the law into its own hands...".
In my view the granting of this order should create no practical problems. If the original sheets of
corrugated iron cannot be found or if they have been so damaged by the bulldozer that they cannot
now be used there is no reason why other sheets of iron of similar size and quality should not be
used. While there is no detailed description of the structures on the papers I think we can fairly
assume that they were not of complicated
1977 (3) SA p118
DIEMONT, J.
design. In one case the materials cost R50, in the other case R58, and in both cases they were
erected by the applicants. The respondent's servants saw them before they demolished them and
should therefore have no difficulty in recreating shelters of A approximately similar size and
efficacy.
An order will accordingly be made in terms of prayer (a ), such order to be carried into effect
immediately.
No order is made in respect of the applicants' lost possessions since there is a dispute of fact on this
issue.
B Nor will there be any order in terms of prayer (b ).
So far as the costs are concerned, the applicants asked for their costs to be paid on an attorney and
client basis. However, I am not disposed to mark my disapproval of the respondent Council's conduct
by such an award since the information on the affidavit is somewhat meagre. The original C notice
of motion made no mention of attorney and client costs and the respondent had no opportunity to
place further facts before me after the notice of motion had been amended.
Respondent's counsel contended that, even if applicants were successful, their costs should be
limited to an award on the magistrate's court scale. That is a contention which I cannot D accept. As
was pointed out, the case was in the nature of a test case; there has been widespread Public
concern at the manner in which squatters are being evicted from their homes and it seems to me
right and proper that the Supreme Court should state firmly and clearly that the law must be obeyed
to the letter.
Applicants also ask that the cost of two counsel should be approved. I accept that both the urgent
nature of the E application and the problems which arose in regard to the application for a
mandament van spolie in these circumstances justified the employment of two counsel by
applicants.
It is accordingly ordered that respondent pay the applicants' costs including the fees of two counsel.
F Applicants' Attorneys: Fuller, Moore & Son. Respondent's Attorneys: Jan S. de Villiers & Son.
MALAN v DIPPENAAR 1969 (2) SA 59 (O) C
Citation 1969 (2) SA 59 (O)
Court Oranje-Vrystaatse Provinsiale Afdeling
Annotations
DE VILLIERS, R.
1968. Augustus 22; Desember 12.

Interdik - Spoliasiebevel - Spoliator nie meer in besit nie. - Wanneer sodanige bevel toegestaan sal
word.
'n Hof is 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.
Applikant het 'n erf, waarop daar 'n huis was, kragtens 'n huurkoopkontrak van respondent gekoop.
Daarna het hy die huurkoopkontrak gekanselleer op grond daarvan dat respondent op bedrieglike
wyse sekere verborge gebreke in die verkoopte eiendom, waarvan hy bewus was, verberg het. Hy
het ook terugbetaling van die bedrae wat reeds betaal is geëis en geskryf dat die sleutels teruggegee
sou word so gou as hy terugbetaling ontvang het. Hy het vervolgens 'n dagvaarding vir kansellasie
teen respondent uitgereik. Daarop het die respondent geskryf dat hy die kontrak kanselleer op
grond daarvan dat die applikant 'n sekere paaiement nie betaal het nie en dat hy herbesit van die
eiendom neem. Daarna het respondent die eiendom sonder applikant se kennis verhuur. Die
huurder het nie van die geskil tussen applikant en respondent geweet nie. Vervolgens het applikant
aansoek gedoen om 'n bevel vir teruggawe van besit, hangende die uitslag van die bestrede aksie
tussen die partye. Op die keerdatum van 'n bevel nisi,
Beslis, dat applikant die nodige mate van besit gehad het en, aangesien dit nie bewys is dat dit vir
respondent onmoontlik sou wees om binne 'n redelike kort tyd besit aan applikant te besorg nie, dat
die bevel nisi met koste bekragtig moet word.
Interdict - Spoliation order - Spoliator no longer in possession - When such order will be granted.
A Court is entitled to grant an order against a spoliator for restoration of possession of spoliated
property although he is no longer in possession thereof unless for some reason or other - the proof
whereof is on the spoliator - it is clear that it will be impossible for him to carry out the Court's
order.
Applicant had purchased a plot on which there was a house from respondent on hire-purchase.
Thereafter he cancelled the hire-purchase agreement on the ground that respondent had concealed
certain latent defects in the property sold, whereof he was aware, in a fraudulent manner. He also
claimed the return of amounts already paid and wrote that the keys would be given back as soon as
he had received repayment of the amounts. He thereafter issued a summons for cancellation against
respondent. Thereupon the respondent wrote cancelling the contract on the ground that the
applicant had not paid a certain instalment and that he was taking repossession of the property.
Thereafter respondent let the property without applicant's knowledge to a lessee who was unaware
of the dispute between applicant and respondent. Applicant thereupon applied for an order for the
restoration
1969 (2) SA p60
DE VILLIERS, R.
of possession, pending the result of the opposed action between the parties.
On the return day of a rule nisi,
Held, that the applicant had had the necessary degree of possession and, as it had not been shown
that it would be impossible for respondent to restore possession to applicant within a reasonably
short time, that the rule nisi should be confirmed with costs.
Keerdatum van 'n bevel nisi.
J. J. F. Hefer, namens die applikant: Die applikant moet aantoon dat hy in ongestoorde besit van die
betrokke perseel was en dat die respondent B hom daarin gesteur het. Sien Scholz v Faifer, 1910 T.S.
op bl. 246; Kramer v Trustees Christian Coloured Vigilance Council, 1948 (1) SA op bl. 783.
Daadwerklike fisiese besit word nie vereis nie. Dit is voldoende indien applikant in 'n posisie was
waarin hy beheer oor die perseel uitgeoefen het. Groenewald v van der Merwe, 1917 A.A. op bl. 238
- 9. Besit van die sleutels is voldoende. Die vraag wie van die C partye geregtig was op besit is nie
tersake by aansoeke soos die onderhawige nie. As hy geregtig was op herbesitname, moes hy besit
deur behoorlike regsproses gekry het. Sien Mpunga v Malaba, 1959 (1) SA 855; Dalby v Soffiantini,
1934 O.K.P.A. 105.
S. A. Visser, namens die respondent: Applikant is slegs geregtig op 'n spoliasiebevel indien hy die
elemente van fisiese beheer en die D bedoeling om te beheer vir sy eie voordeel kan bewys. Sien
Voet, 41.2.1; Groenewald v van der Merwe, 1917 AD 238; Scholtz v Faifer, 1910 T.S. 247. 'n
Spoliasiebevel is in die aard van 'n finale bevel en dit word aan die hand gedoen dat die elemente
daarvan op 'n oorwig van waarskynlikhede en nie net prima facie bewys moet word nie. Sien
Nienaber v Stuckey, 1946 AD 1053. In die geval van 'n woning bestaan E besit in die bewoning
daarvan. Sien Smith v Martin's Executor, 16 S.C. 151. Indien een van die elemente wegval, verloor
die besitter sy besit. Sien Wille, Principles of SA Law, bl. 192 - 3.
Hefer, in repliek.
F Cur. adv. vult.
Postea (Desember 12).
[zJDz]Judgment
DE VILLIERS, R.: Hierdie is die keerdatum van 'n bevel nisi wat uitgereik is deur hierdie Hof op
versoek van applikant, waarin G respondent opgeroep word om redes aan te voer
'(a) waarom die respondent nie beveel sal word nie om erf 5096, geleë in die stad en distrik
Bloemfontein, te ontruim en alle goedere en/of bates deur hom op die eiendom gebring op 4 Julie
1968 of daarna te verwyder nie;
(b) waarom die respondent nie verbied sal word nie om besit te neem of andersins weer te kom
op erf 5096, geleë in die stad en distrik Bloemfontein, hangende die uitslag van die bestrede aksie
tussen die partye;
H (c) waarom die respondent nie beveel sal word nie om die koste van hierdie aansoek te betaal'.
Die tersaaklike onbetwisde feite is die volgende: op 4 Maart 1968 verkoop respondent bogenoemde
erf, waarop daar 'n huis is, op huurkoop
1969 (2) SA p61
DE VILLIERS, R.
en gee besit daarvan aan applikant. Op 2 Mei 1968 skryf applikant se prokureur aan respondent dat
hy die huurkoopkontrak kanselleer op grond daarvan dat respondent op bedrieglike wyse sekere
verborge gebreke in die verkoopte eiendom, waarvan hy bewus was, verberg het. In die brief A eis
hy dan ook terugbetaling van die bedrae. 'n totaal van R1,470, wat reeds betaal is in terme van die
huurkoopkontrak en eindig die brief soos volg:
'Ons kliënt tref reëlings om die eiendom te ontruim en die sleutels aan ons te besorg. Sodra die
sleutels aan ons oorhandig is, sal ons u verwittig. Die sleutels sal aan u oorhandig word gelyktydig
met die betaling deur u aan ons van die bedrag van R1,470.'
B Op 6 Mei 1968 verwittig applikant se prokureur respondent dat applikant die eiendom ontruim
het maar dat die sleutels in sy (die prokureur) se besit is en dat dit in sy eie belang is om onmiddellik
terugbetaling te maak van die verskuldigde bedrag, sodat hy besit van die eiendom kan neem.
Daarna verneem respondent deur sy prokureur na die C aard van die beweerde gebreke en
applikant se prokureur onderneem om respondent se prokureur na die eiendom te neem en die
gebreke aan hom te toon. Op 29 Mei 1968 reik applikant 'n dagvaarding uit teen respondent vir
kansellasie van die huurkontrak op die grond hierbo genoem en die dagvaarding is op 3 Junie 1968
bestel. Op 14 Junie 1968 rig respondent D se prokureur 'n brief aan applikant waarin hy meld dat,
aangesien hy (applikant) versuim het om 'n verskuldigde paaiement van die koopsom betyds te
betaal, respondent die huurkoopkontrak uit hoofde van 'n verbeuringsklousule daarin, kanselleer,
dat hy herbesit van die eiendom neem en dat hy die bedrag van R1,470 as verbeurd behou.
Inderdaad het hy egter nie toe herbesit geneem nie. 'n Afskrif van die brief is ook aan E applikant se
prokureur gestuur. Ook op 14 June 1968 eis die prokureur, wat deurgaans vir respondent opgetree
het, per brief betaling van sekere los goedere, nl. gordyne, 'n kruiwa en 'n tuinslang, wat applikant
van A. J. Dippenaar, 'n broer van respondent, gekoop het, maar meld terselfdertyd dat A. J.
Dippenaar alternatiewelik bereid is om die F goedere terug te neem. Op die brief antwoord
applikant se prokureur op 20 Junie 1968 dat applikant bereid is om die goedere terug te lewer en
vervolg:
'Die gordyne is nog in die huis. U het ons meegedeel dat u 'n sleutel vir die huis het. Of u dit nog het,
weet ons nie, maar ons kan 'n sleutel aan u verskaf vir doeleindes van verwydering van die gordyne.
Die kruiwa en tuinslang is in die motorhuis toegesluit. Die nodige sleutel van die motorhuis word
aangeheg. Ons gee dit aan u met die G verstandhouding dat u persoonlik toesien dat die kruiwa en
die tuinslang aan u kliënt oorhandig word en die sleutel weer aan ons terugbesorg word.'
Intussen op die 19de Junie 1968 rig respondent se prokureur namens A. J. Dippenaar 'n versoek 'om
die sleutels van die woonhuis' te ontvang. Die brief is eers op 24 Junie 1968 ontvang en op dieselfde
dag antwoord H applikant se prokureur en, verwysende na sy vorige brief van 20 Junie 1968, meld
hy weereens
'ek sal bly wees om die sleutel weer terug te ontvang nadat u kliënt besit van sy goedere geneem
het'.
Op 25 Junie 1968 vra respondent se prokureur met verwysing na sy brief van 14 Junie 1968
weereens vir die sleutels. Op die brief antwoord applikant se prokureur in 'n brief gedateerd 25 Junie
1968:
'Die sleutels kan nie aan u of u kliënt afgegee word nie en reëlings moet getref word dat een van u
personeellede teenwoordig is wanneer u kliënt die goedere verwyder.
1969 (2) SA p62
DE VILLIERS, R.
Ons het toe aan ons kliënt genoem dat ons geen beswaar het indien een van u vennote persoonlik
teenwoordig is met die verwydering nie en dat u dan weer die huis daarna sal sluit en die sleutels
aan ons terugbesorg.
Ons kliënt het ons toe verwittig dat hy bereid is om hierdie voorstel te aanvaar en sodra ons u
versekering ontvang het dat een van u vennote teenwoordig sal wees met die verwydering van die
goedere sal die A sleutels aan u oorhandig word.'
Op ongeveer 30 Junie 1968 verhuur respondent sonder-die kennis en wete van applikant die
eiendom aan ene Lee vir 'n tydperk van een jaar vanaf 1 Julie 1968. Op 4 Julie 1968 merk applikant
dat iemand besig is om die B huis op die eiendom te betrek en die nodige huishoudelike goedere af
te laai en verwittig sy prokureur daarvan. Ook op 4 Julie 1968 telefoneer respondent se prokureur vir
applikant se prokureur en vra vir die sleutels van die huis. Applikant se prokureur vra of die sleutels
nodig is om die gordyne te verwyder, maar respondent se prokureur antwoord dat hy dit wil hê
omdat hy die eiendom verhuur het en besit C daarvan wil hê. Applikant se prokureur spreek sy
verbasing uit en vra op watter gronde sy kliënt dit wil doen, waarop respondent antwoord dat sy
kliënt die huurkoopkontrak gekanselleer het in die brief van 14 Junie 1968, en dat hy as gevolg
daarvan die eiendom in besit neem. Applikant se prokureur wys vervolgens respondent se prokureur
daarop dat hy sy D kliënt ernstig moet aanraai om nie tot hierdie stap oor te gaan nie en die wet in
eie hande neem en spoliasie pleeg nie aangesien applikant se toestemming nie verkry is nie en
respondent se beweerde kansellasie van die huurkoopooreenkoms ontken en verwerp word.
Applikant se prokureur maan vervolgens ook respondent se prokureur tot versigtigheid en
laasgenoemde belowe om later die dag weer terug te bel wat hy dan ook E gedoen het. In die
telefoongesprek meld hy dat sy kliënt se finale besluit is dat hy geregtig is om besit te neem en dit
gaan doen. Applikant se prokureur vra toe vir respondent se prokureur om sy kliënt se voorneme per
brief te bevestig en dat 'n aansoek onmiddellik na die Hof gerig sal word vir die nodige verligting.
Later dieselfde dag F ontvang applikant se prokureur 'n brief wat soos volg lees:
'Ons verwys na die telefoniese gesprek wat die skrywer hiervan met u mnr. Symington snr. op gelyke
datum gevoer het en bekragtig dat ons kliënt besit van sy eiendom bekend as erf 5096,
Bloemfontein, geneem het na aanleiding van ons skrywe gerig aan u kliënt op 14 laaslede.'
Op die volgende dag, 5 Julie 1968, is die bevel wat in die aanhef hiervan uiteengesit is uitgevaardig
en dit is nog dieselfde dag op G respondent bestel. In 'n beëdigde verklaring sê Lee, die huurder, dat
hy 'actually took possession' op die 6de Julie 1968, maar dat hy geensins van die moeilikheid tussen
applikant en respondent geweet het nie.
Voordat applikant die Hof kan vra om die bevel nisi te bekragtig moet hy H bewys dat hy in
ongestoorde besit van die eiendom was en dat respondent met geweld of onwettiglik en sonder sy
toestemming hom dit ontneem het. (Kyk Scholtz v Faifer, 1910 T.S. 243 te bl. 246; Kramer v Trustees
Christian Coloured Vigilance Council, Grassy Park, 1948 (1) SA 748 (K) te bl. 753; Nino Bonino v de
Lange, 1906 T.S. 120 te bl. 122).
Mnr. Visser, wat namens respondent verskyn het, het betoog dat dit nie bewys is dat applikant in
besit van die betrokke eiendom was nie. Ek kan nie saamstem nie. Die feit dat applikant die eiendom
fisies ontruim het, beteken nie dat hy besit daarvan verloor het nie. Hy het
1969 (2) SA p63
DE VILLIERS, R.
deurgaans die sleutel daarvan behou met die bedoeling om daardeur beheer oor die eiendom uit te
oefen, en dit, volgens al die gewysdes (kyk Scholtz v Faifer, supra te bl. 247; Groenewald v van der
Merwe, 1917 AD 233 te bl. 238 - 9), beteken dat hy dié mate van besit gehad het A wat in 'n saak
soos die onderhawige bewys moet word. Of applikant geregtig was om die sleutels te behou met die
doel om beheer oor die eiendom uit te oefen is nie ter sake nie, want waar spoliasie gepleeg is moet
die betrokke eiendom, ante omnia, d.w.s. voordat daar op die meriete ingegaan word wie van die
betrokke partye volgens wet geregtig B is daarop, aan die persoon van wie dit geneem is
terugbesorg word. Die status quo moet herstel word. (Kyk Scoop Industries (Pty.) Ltd v Langlaagte
Estate and G.M. Co. Ltd., 1948 (1) SA 91 (W) te bl. 99; Painter v Strauss, 1951 (3) SA 307 (O) te bl.
314).
Mnr. Visser het ook aangevoer dat applikant se gedrag sodanig was dat daarvan afgelei kan word dat
hy sy besit prysgegee het. Hy baseer sy C argument op grond van die feit dat die brief van
respondent se prokureur van 14 Junie 1968 nie spesifiek beantwoord is nie. In die brief, soos
voorheen reeds genoem, word gemeld dat respondent die huurkoopkontrak kanselleer 'en dat hy
nou herbesit van die eiendom neem' en dat hy die bedrag van R1,470 reeds betaal as verbeurd
beskou. Blykbaar steun mnr. Visser, vir sy stelling dat applikant afstand van sy besit gedoen het D
daarop dat respondent in gemelde brief sê dat hy nou herbesit geneem het en dat daar nie spesifiek
in 'n antwoordende brief kapsie teen sodanige optrede gemaak is nie. Die argument gaan nie op nie.
In vorige korrespondensie het appellant dit baie duidelik gemaak dat hy die sleutels hou om sy besit
te beskerm. Van die feit dat applikant se E prokureur nie spesifiek die brief van 14 Junie 1968
beantwoord het nie, kan nie afgelei word dat applikant daardeur wou te kenne gee dat hy besit
prysgee nie. Inteendeel toon die korrespondensie wat onmiddellik gevolg het die teenoorgestelde.
Op dieselfde dag toe die brief van 14 Junie 1968, voornoemd geskryf is, het respondent se prokureur
namens A. J. Dippenaar, die broer van respondent, aan applikant geskryf in verband F met losgoed
wat applikant van A. J. Dippenaar sou gekoop het en uit die korrespondensie is dit baie duidelik dat
applikant onder geen omstandighede bereid was om die sleutels van die huis aan respondent se
prokureur te lewer nie behalwe vir die doel om die losgoed wat A. J. Dippenaar bereid was om terug
te neem in plaas van die koopsom, uit die G betrokke eiendom te verwyder. Dieselfde prokureur het
namens respondent en A. J. Dippenaar opgetree en hy was dus deurgaans bewus van applikant se
houding in verband met die sleutel. Hy het ook in geen stadium daarna in korrespondensie die
houding ingeneem dat applikant afstand gedoen het nie. Die houding is vir die eerste keer ingeneem
in respondent se H antwoordende verklarings. Trouens tot op die laaste, d.w.s. 4 Julie 1968, het
respondent se prokureur nog probeer om die sleutel uit die besit van applikant se prokureur te kry,
wat heeltemal onbestaanbaar is met 'n bewering dat respondent onder 'n verkeerde indruk gebring
is deur applikant se optrede.
Op die basis dat applikant in besit was van die eiendom, voer mnr. Visser verder aan dat dit nie
respondent was nie, maar Lee wat applikant van sy besit ontneem het en dat respondent dus nie
spoliasie gepleeg het nie. Die argument gaan nie op nie. Respondent het deurgaans
1969 (2) SA p64

DE VILLIERS, R.
geweet dat applikant nie die sleutel wou afgee nie. Tog het hy doelbewus, en vir sy eie voordeel die
eiendom aan Lee verhuur en Lee, as huurder, outoriseer om besit te neem. Reeds op die 4de Julie
1968, toe A Lee nog maar besig was om in te trek, is respondent gewaarsku dat 'n spoliasie-aansoek
geloods sou word, maar hy doen niks nie. Inteendeel het hy toegelaat dat Lee finaal intrek op 6 Julie
1968, en dit nadat die bevel nisi reeds op die 5de Julie 1968 op hom bestel is. Deur sy handelinge het
hy spoliasie gepleeg asof hy die eiendom met 'n duplikaatsleutel self oopgesluit en Lee daarna in
besit gestel het. B (Vgl. Painter v Strauss, supra, te bl. 318).
Laastens het mnr. Visser aangevoer dat die Hof nie die bevel nisi sal bekragtig nie aangesien
respondent nie in besit is van die eiendom nie maar wel Lee wat dit bona fide van respondent
bekom het. Hy steun op drie gewysdes, naamlik Burnham v Neumeyer, 1917 T.P.D. 630; Louw v. C
Hermann, 1922 CPD 252; Chitiz v Loudon and Another, 1946 W.L.D. 375.
Die ratio decidendi van genoemde sake kan opgesom word in die woorde van BRISTOWE, R., in
Burnham v Neumeyer, te bl. 633, soos volg:
'Now restoring the status quo ante can only mean in this case giving D back the cattle to the
applicant. It cannot mean anything else. If the cattle have in fact been alienated to an innocent third
party without any intention of defeating the proceedings (for it was done without any knowledge
that these proceedings were being commenced), it is difficult to see how a spoliation order can be
granted, any more than an interdict can be, because there is nothing upon which they can operate. I
think myself that that is a sound objection.'
E Mnr. Hefer, wat namens applikant verskyn het, het egter gesteun op die saak van Painter v
Strauss, supra, waarin BRINK, R., soos hy toe was, 'n dergelike argument afgewys het soos volg:
'Mr. van Rhyn also submitted that the Court would not order restoration of possession of the
dwelling house because respondent, acting as agent for his wife, had placed another party in
possession of it. He referred to the case of Burnham v Neumeyer, supra, which decided that the
Court would not grant a spoliation order where the goods, which were the subject of the
proceedings, have been alienated to an innocent third F party without any intention of defeating
the proceedings. In the case referred to alienation had taken place without knowledge that the
proceedings were being instituted. There is nothing in respondent's affidavit which suggests that
Rautenbach, who was placed in possession of the house, is an innocent third party, but even if he is,
respondent does not allege that it would not be possible for him to restore possession of the
dwelling house to applicant and that he will not be able to make the necessary arrangements to do
so.'
G Ek is nie bereid om eersgenoemde beslissings in die onderhawige saak te volg nie en verkies die
benadering van BRINK, R., vir die volgende redes:
Die beginsel spoliatus ante omnia restituendus est het in ons reg tot stand gekom om rusverstoring
in die gemeenskap te voorkom (vgl. Mans v. H Loxton Municipality and Another, 1948 (1) SA 966 (K)
te bl. 977), en is gebore uit die Romeinse interdictum unde vi en later ontwikkel ondermeer onder
invloed van die Kanoniekereg. (Vgl. Voet, 41.2.16; 43.16.5,6 en 7; Nienaber v Stuckey, 1946 AD 1049;
Pretorius and Another v Pretorius, 1927 T.P.D. 178; Lategan v Union Government, 1937 CPD 197;
Painter v Strauss, supra; Price, Possessory Remedies in Roman Dutch Law, en in besonder Meyer v
Glendinning, 1939 CPD 84 te bl. 91 - 92, en die outoriteite daar aangehaal). Die interdictum unde vi
kon aangewend word teen 'n persoon wat met
1969 (2) SA p65
DE VILLIERS, R.
geweld 'n ander van sy vaste eiendom beroof het, al het die rower nie self die eiendom in besit
geneem nie en, indien hy dit in besit geneem het, al het hy vir een of ander rede van sy besit ontslae
geraak. Voet, 43.16.5 - soos vertaal deur Gane - stel dit so:
'Those are sued through this interdict who have thrown out by force, A whether they have thrown
out and seized at the same time, or have thrown out and have not themselves seized, but another
has stepped into the vacant possession . . . Nor does it matter whether they still possess or do not
possess the property from which they have thrown out; nor whether they have ceased to possess by
fraud or by negligence or by chance, since on the analogy of thieves they are understood to be
always in default . . . It cannot be granted against third parties in possession of the property even
though they should hold their cause from him who throws out, and thus would be his particular
successors as a B result of purchase or donation. As Donellus advises, this is because it arises from a
kind of wrongdoing after the pattern of the action on theft or on the robbery of goods. The Romans
held that it ought to be enough for a person thrown out that this interdict is in every case safe for
him against the very person who threw him out, both when such person is in possession and also
when he ceases to possess by any means whatever.'
Hoe die kerngedagte van die interdictum unde vi later uitgebrei en ontwikkel het, blyk ondermeer
uit Voet, 43.16.7:
C 'But beyond the others the remedies of the Canon law are more fertile, and have been almost
everywhere approved by the customs of to-day. They are to be found in the passages cited below,
and have been fully dealt with by the author next mentioned below. This interdict against force only
found place with immovable properties, and with incorporeal things which are held to fall under the
law of immovables. It was available D only against him who threw out, and not also against third
parties in possession of property, and indeed only for a year. On the contrary the remedy under the
canon redintegranda, was extended to all and every kind of property, and was granted against all
possessors of property, whether they possessed in good or in bad faith, whether with or without
title, and whether the title on which they possessed was burdensome or lucrative, and this without
discrimination of time.'
E Vgl. ook Fockema Andreae in Het Oud-Nederlandsch Burgerlijk Recht, bl. 206:
'De actio spolii, later veelal 'redintegranda' genoemd, verschilde reeds dadelijk, althans in twee
opzichten van het 'interdictum unde vi'; zij kon worden ingesteld ook tegen derde bezitters, en niet
slechts op grond van geweld, maar ook op grond van dwang, bedrog en andere wederrechtelijke
handelingen. En al meer afwikkeningen slopen in. Naar de theorie die zich in en na de 13de eeuw
ontwikkelde, had men de actio spolii tegen elke bezitter, bij elk onvrijwillig bezitsverlies, en F
behoefde zelfs het feit der ontzetting enz. niet te worden bewezen, mits maar bleek, dat de eischer
vroeger had bezeten. Men gaf de actio spolii ook aan de detentor, ook bij verlies van roerende goed,
van onlichamelijke zaken, ja zelfs bij onttrekking van personen aan de over hen gezaghebbenden.'
Uit hoofde van bogemelde passasies wil dit voorkom of dit miskien gesê kan word dat die
mandament van spolie soos ontwikkel en opgeneem in ons G gemenereg so uitgebrei het dat dit
selfs beskikbaar geword het teen 'n persoon wat besit bona fide van 'n spoliator bekom het. (Vgl.
Ntai and Others v Vereeniging Town Council and Others, 1953 (4) SA 579 (AA)). Maar, hoe dit ookal
sy, word dit nêrens in die outoriteite gesê dat dit vir dié rede nie meer beskikbaar is teen 'n spoliator
nadat hy H van sy besit ontslae geraak het nie. Uit die aard van die saak sou so 'n stelling strydig
wees met die doelstelling van die mandament, naamlik om voornemende spoliators te ontmoedig
om die wet in hulle eie hande te neem. Spoliators sou dan die gevolge van hulle onwettige optrede
kan ontduik deur eenvoudig van die gespolieerde eiendom op een of ander manier ontslae te raak.
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
1969 (2) SA p66
DE VILLIERS, R.
duidelik is dat dit onmoontlik vir hom sal wees om die Hof se bevel uit te voer.
In die onderhawige geval is daar geen rede waarom 'n bevel van teruggawe A van besit van die
gespolieerde eiendom nie teen respondent gemaak kan word of behoort gemaak te word nie. Dit
kan nouliks gesê word dat sy optrede bona fide was. Die betrokke eiendom is nie vernietig nie: dit is
vaste eiendom. Respondent het nooit beweer dat hy nie aan 'n bevel van teruggawe van besit
daarvan sal kan uitvoer nie en Lee het ook nie in sy B beëdigde verklaring gesê dat, indien die Hof 'n
bevel van teruggawe maak teen respondent, hy nie vrywilliglik afstand van sy besit sal doen nie.
Hierdie is buitendien 'n geval waar Lee slegs 'n huurder is en nie 'n koper nie. Die terme van die
huurooreenkoms is nie voor die Hof nie. Vir al wat die Hof weet kan dit deur respondent wettiglik
beëindig word deur 'n maand kennis te gee. Indien dit so is sou dit moontlik vir C respondent wees
om binne 'n redelike kort tyd besit aan applikant te besorg en die Hof se bevel uit te voer. Hierdie is
dus nie 'n geval waar dit gesê kan word dat die doel van 'n spoliasiebevel, naamlik om besit aan
applikant te besorg, nie verwesenlik kan word nie, of dat 'there is nothing upon which the order can
operate'.
Bygevolg word die bevel nisi bekragtig met koste.
D Applikant se Prokureurs: Symington en de Kok. Respondent se Prokureurs: Siebert en

Groenewald.
JIVAN v NATIONAL HOUSING COMMISSION 1977 (3) SA 890 (W)
Citation 1977 (3) SA 890 (W)
Court Witwatersrand Local Division
Annotations
F. S. STEYN, J.
A 1977. February 22; May 27.
Interdict - Mandament van spolie - Delay in bringing application - Effect - Not necessary that
application must be brought within a year and a day - Court has a discretion in such an event to
grant relief - Property sought to be restored in possession B of innocent third party - Relief cannot
be granted - Applicant's relief is to institute a vindicatory action.
Vindication - When competent - Delay in bringing proceedings for mandament van spolie - Property
sought to be restored in possession of innocent third party - Relief to be claimed under vindicatory
action. C
The remedy of a mandament of spolie, based on the maxim spoliatus ante omnia restituendus est,
grew as a new and distinct concept of the Roman-Dutch law in South Africa over the last century and
a quarter, and there is no authority to state categorically that the order cannot be sought if the
applicant had allowed a year to elapse after the interruption of his possession occurred, nor could it
be concluded that relief could not be refused on account of delay to an applicant D who had not
delayed for a full year to launch his application for a mandament of spolie. The Court has a discretion
to refuse an application where, on account of the delay in bringing it, no relief of any practical value
can be granted at the time of the hearing of such application. In exercising this discretion the bar
imposed after one year in respect of the mandament consequential upon complaints is a guide to
modem practice. If an applicant delayed for more than a year before bringing his E application for a
mandament of spolie, there would have to be special considerations present to allow such applicant
to proceed with his application, and conversely, if an application was brought within the period of
one year after interruption of the possession, special circumstances would have to be present before
relief could be refused merely on the ground of excessive delay.
Where the Court held that a delay of eight months before the petition in an application for a
mandament van spolie was F launched was not so gross, nor had such self-defeating consequences,
it declined, on such ground alone, to refuse relief to the applicant.
Wrongful dispossession by a person taking the law into his own hands can promptly be cured by an
order against the spoliator to restore the goods in dispute to the peaceful possessor. A spoliation
order against a party other than the spoliator is logically beyond the scope of the purpose of the
mandament to prevent persons from taking the law into their own hands. Where G possession has
passed to a new possessor who became such in good faith, the status quo ante cannot be restored
by remedial action against the disturber of the status quo. Unfortunately for the original possessor,
the dispute has at that stage moved from the realm of possessory remedies to that of a vindicatory
action. Delay on the part of the original possessor in recovering his possession, especially after he is
aware of the advent of a new possessor in good faith, would further exclude the right to such a
spoliation order. H
Application for an order compelling the respondent to restore the possession of an erf to the
applicant. The facts appear from the reasons for judgment.
G. Leveson, S.C., for the applicant.
E. M. Du Toit, for the respondent.
Cur. adv. vult.
Postea (May 27).
1977 (3) SA p891

[zJDz]Judgment
F. S. STEYN, J.: In this matter applicant claims an order compelling respondent to restore to him the
possession of erf 3143, Lenasia Extension No. 2, and costs.
The rights of applicant to ownership and possession of the erf A in question are in dispute. The erf,
with a house thereon, is presently in possession of a third, party, Horilall Ramphal, who purchased
the house and erf 3143 from the Department of Community Development on 30 July 1974 and who
took occupation of the house on 6 August 1974, and who is still in occupation of the premises.
Applicant was appraised of the intention of respondent to give B occupation of the property to a
third party by delivery, on either 24 or 25 July 1974, of a letter from applicant to respondent dated
24 July 1974 being annexure "A" to applicant's petition. The ultimate paragraph of this letter reads:
"The house must be vacated immediately to enable the new C purchaser to take occupation as from
1 August 1974."
This knowledge that respondent would hand over possession to a third party was amplified on 4
August 1974. The present possessor states in annexure "G" to respondent's reply:
"On 4 August 1974 a lady living across the road approached me, identified herself as a member of
the family of the previous D owner and also collected the curtaining and the old basket."
The following chronological table of events emerges:
25 July 1974: Applicant learns of the intention of respondent to take possession of the disputed
property and to place a third party in possession.
E 2 August 1974: Act of alleged spoliation occurs.
4 August 1974: A relative of applicant takes possession of applicant's remaining effects in the house
with a view to the impending occupation of the house by a third party.
7 August 1974: Applicant visits the respondent's office to query the letter of 24 July, delivered on 24
or 25.
19 August 1974: Applicant's attorneys write a letter F (annexure "B" to the petition) alleging
spoliation and demanding restoration of possession.
13 March 1975: The petition is launched.
The first aspect to be investigated is whether the delay in bringing this application, which was
eventually set down on 7 G February 1977 for hearing on 22 February 1977, did not constitute such
delay in launching and prosecuting the petition that the relief of a spoliation order is to be withheld
from applicant.
The most pertinent, and really only pertinent authority in South African law on the question whether
a spoliation order should be granted only to an applicant who acts promptly, is H the Appeal Court
judgment in Nienaber v Stuckey, 1946 AD 1049 at pp. 1059 and 1060. At p. 1060 GREENBERG, J.A.,
states:
"But whatever be the cause of the delay, there is no warrant for holding that the appellant thereby
lost his remedy. On the contrary, the last passage cited from Wassenaar, ch. 13, art. 1, makes the
remedy available for a year. (See also Voet, 43.16.6 and 7.) It is true that Savigny on Possession, pp.
406 et seq., describes this remedy as 'Possessorium summariissimum', but I think the adjectival
qualification refers not to the period within which the remedy must be claimed, but to the
procedure of the court in dealing with
1977 (3) SA p892
F.S. STEYN, J.
the application. I express no opinion on the question whether the court has a discretion to refuse an
application where, on account of the delay in bringing it, no relief of any value can be granted."
All the old authorities are in agreement that no mandament on a A petition based on complaints
could be brought after a year and a day. Voet in 43.16.7 refers to this same limitation of institution
of action after expiration of one year if a remedy was sought under the Canon law, from which the
mandament of spolie was derived. The limitation of action relevant to disturbance of possession
which took place within a year B preceding the application for a mandament in consequence of the
complainte process, is clearly derived from the old Germanic rule that undisturbed possession for a
year and a day made such a possessor entitled to legal protection of his possession. Conversely it
would consequently be illogical to allow action to be instituted for recovery of possession which had
been disturbed more than a year previously.
C In connection with the application for a mandament of spolie, which evolved in the law of the
Netherlands after the action based on complainte, there seems to be a substantial argument that
this mandament could be sought even after a year had expired since the disturbance of possession
took place. Van der D Linden, who was one of the last old writers on the subject at the turn of the
18th to the 19th century, explicitly sets out under which conditions a mandament of complainte
could be obtained in Judiceele Practycq, bk. 2, chap. 21, para. 3. As the fourth prerequisite for a
mandament van complainte, Van der Linden specifically mentions that the disturbance must have E
been committed within the previous year (dat de turbatia is gepleegt binnen 's jaars) and Van der
Linden quotes the authority of Bart, Tract. van Compl., tit. 5, n. 38. In connection with the
mandament of spolie he simply says that a possessory remedy has been introduced under the name
of mandament van spolie "ten behoeven der geenen, die gewelddadiger wyze van het hunne
beroofd worden" (bk. 2, chap. 22, para. 1). Voet, however, in bk. 43.17.7 mentions that the F
applicant for restoration of interim possession must show that he was disturbed in such possession
within a year, to be reckoned retrospectively. In dealing with an order against spoliation, in contrast
with the order for interim possession, Voet makes no reference to the stage at which the action is to
be introduced and says that an order against spoliation is G heard according to the procedure which
is followed in customary and ordinary judicial proceedings where the person despoiled claims that
before everything he shall be put back into his old position. The silence of the old authorities, and
the implications which can be gathered from their silence, on the question within which period from
a date of the disturbance of possession a mandament of spolie is to be applied for, does H in my
view justify the conclusion which T. W. Price comes to in his The Possessory Remedies in Roman-
Dutch Law at p. 61, where the author says in respect of the mandament van spolie
"it could be used in cases in which immovable property which had been possessed for less than a
year and a day or in which the disturbance had been committed more than a year previously."
In my view the remedy of a mandament of spolie, based on the maxim spoliatus ante omnia
restituendus est, grew as a new and distinct concept of the Roman-Dutch law in South Africa over
the last century and a
1977 (3) SA p893
F.S. STEYN, J.
quarter, and there is no authority to state categorically that the order cannot be sought if the
applicant had allowed a year to elapse after the interruption of his possession occurred, nor could it
be concluded that relief could not be refused on account of delay to an applicant who had not
delayed for a full A year to launch his application for a mandament of spolie.
In my view the Court has a discretion to refuse an application where, on account of the delay in
bringing it, no relief of any practical value can be granted at the time of the hearing of such
application.
In exercising this discretion I think the bar imposed after one B year in respect of the mandament
consequential upon complainte is a guide to modern practice. If an applicant delayed for more than
a year before bringing his application for a mandament of spolie, there would have to be special
considerations present to allow such applicant to proceed with his application, and conversely, if an
application was brought C within the period of one year after interruption of the possession, special
circumstances would have to be present before relief could be refused, merely on the ground of
excessive delay. In the present matter the delay of eight months before the petition was launched is
not so gross, nor had it such self-defeating consequences, that, on this ground D alone, relief should
be refused to the applicant.
Price, in his work, referred to above, states:
"It has been held that failure to take immediate action will estop the applicant from successfully
claiming a spoliation order; he will be left to his remedy by action".
I cannot adopt this statement of the law without careful qualification. The learned author, Price,
quotes as his E authority the case of Otto v Viljoen and Others, (1885) 4 S.A.R. (Barber and
McFadgen Reports 45), and De Villiers v Holloway, (1902) 12 C.T.R. 566 at p. 569. The case of Otto v
Viljoen and Others, is authority for no more than the self-evident proposition that a settlement
between the party allegedly spoliated and the spoliator, precludes the party whose possession has
been interrupted from seeking a spoliation F order after the settlement was arrived at.
De Villiers v Holloway is more instructive. In this matter MAASDORP, J., considered the effect of
delay in bringing an application for a mandament of spolie and he framed the argument for the view
that a possessor loses his right to seek an order due to an inordinate delay in the following terms:
"It is said that having lain by so long it must be taken that G he acquiesced in what had been done
by the respondent to such an extent as to deprive the conduct of the respondent of the character of
forcible spoliation".
After considering the facts the learned Judge concludes:
"therefore, the mere fact that the applicant did not press forward legal proceedings immediately
was not such an acquiescence in what had been done by the respondent as to deprive the applicant
of the right of now asking the Court to H put him in the position he would have been in had he not
been deprived of peaceable possession by the respondent".
I adopt this approach. It is conceivable that the delay of an applicant to bring his petition either
confirms or displays a state of mind in which the applicant acquiesced in the alleged disturbance of
his possession, and, in such an event, I am satisfied that he would not be entitled to a mandament of
spolie. The delay in the present application cannot, in my view, by any means be interpreted as
acquiescence in the alleged spoliation.
1977 (3) SA p894
F.S. STEYN, J.
I wish to turn to another aspect of the dispute which must be examined at this stage, namely the
possession of the disputed property by an innocent third party.
I have referred to the fact that applicant knew that the A respondent wished to take possession of
the property for the purpose of giving possession of the property to a then unknown third party and
it can be assumed that applicant was aware of the fact that the property was in possession of an
innocent third party for about two weeks before he directed his first protest and demand to the
respondent.
B In these circumstances it must be examined whether the fact that the application was only
launched on 13 March 1975 in circumstances where it was clear that no relief of practical value
could be granted to applicant in view of the fact that an innocent third party was, and had been, in
possession of the C disputed property for more than seven months, does not destroy the right of
the applicant to obtain the relief sought.
After Ramphal was given possession of the property on 6 August 1974 by virtue of an apparently
legal contract of purchase and sale, a situation arose very similar to that dealt with in Chitiz v Loudon
and Another, 1946 W.L.D. 375, and it becomes necessary to consider the South African decisions
dealing with D the effect of the transfer of possession of objects, unlawfully removed from the
custody of the erst-while possessor, to innocent third parties.
In the Transvaal this question was first dealt with in Burnham v Neumeyer, 1917 T.P.D. 630. At p.
633 BRISTOWE, J., states:
"It was next objected that the respondent has parted with the E cattle. The object of a spoliation
order is that possession of the things of which the applicant has been dispossessed should be
restored to him. That I think appears from the judgment of the CHIEF JUSTICE in Nino Bonino v De
Lange, 1906 T.S. 120, where he says (at p. 122):
'It is a fundamental principle that no man is allowed to take the law into his own hands; no
one is permitted to dispossess another forcibly or wrongfully and against his consent of the
possession of property whether movable or immovable. If he does so, the Court will summarily
restore the status quo ante, and will do that as a preliminary to any inquiry or investigation into the
merits of the dispute'.
F Now restoring the status quo ante can only mean in this case giving back the cattle to the
applicant. It cannot mean anything else. If the cattle have in fact been alienated to an innocent third
party without any intention of defeating the proceedings (for it was done without knowledge that
these proceedings were being commenced), it is difficult to see how a spoliation order can be
granted, any more than an interdict can be, because there is nothing upon which they can operate. I
G think myself that that is a sound objection."
The learned Judge seems to arrive at his conclusion on the basis of simple logical reasoning: If the
spoliator is no longer in possession, he cannot restore possession. If the third party possessing the
spoliated object became the possessor in consequence of a transaction entered into in good faith,
he had no part in the spoliation and cannot be subjected H to the penal character of a spoliation
order by which he is obliged to surrender possession to the party who was deprived of possession by
another. The rights of parties in such a situation are clearly to be determined by vindicatory action
and not by obtaining a spoliation order.
This decision was referred to and followed in Louw v Hermann, 1922 CPD 252, in which the
headnote reads:
"The Court will not grant an interdict directing a despoiler to restore the goods despoiled where it
appears that prior to the proceedings he has bona fide alienated the goods to an innocent third
person."
1977 (3) SA p895
F.S. STEYN, J.
The brief judgment by WATERMEYER, A.J., reads:
"The respondent alleges that he has sold the bus and delivered it to one Wilson and received the
proceeds, apparently before notice of the present application was given. Respondent says he is
willing to account to the applicant for the proceeds. If this is true and it is not denied then there is
authority for A holding that no order for restoration can be made unless the respondent was not
acting bona fide: see Burnham v Neumeyer, 1917 T.P.D. 630. There is no proof that the sale by
respondent was not bona fide. No order will therefore be made upon the present application."
The decision in Burnham v Neumeyer was referred to in respect of the proof of possession prior to
the alleged spoliation in Mandelkoorn v Strauss and Others, 1942 CPD 493, and no B criticism was
levelled at the principle stated by BRISTOWE, J., in respect of goods held by innocent third parties at
the date of the application for a spoliation order.
The decision in Burnham v Neumeyer was considered in the Appellate Division in Nienaber v
Stuckey, supra at p. 1053, in respect of the degree of proof required where a spoliation order is
sought. No doubt was expressed in respect of the law C as set out by BRISTOWE, J., in respect of
third parties having innocent possession.
In the Orange Free State Burnham v Neumeyer was referred to and followed in respect of the proof
of possession in Meyer v Sentraal Westelike Koöperatiewe Maatskappy, 1943 OPD 93, but Painter v
Strauss, 1951 (3) SA 307 (O) , was distinguished D from the situation dealt with in Burnham v
Neumeyer and in Malan v Dippenaar, 1969 (2) SA 59 (O) at p. 64, DE VILLIERS, J., specifically
considered the dictum in Burnham v Neumeyer and came close to rejecting the conclusion arrived at
by BRISTOWE, J. He remarked at p. 65, after quoting from Fockema Andreae and Gane's translation
of Voet:
"Uit hoofde van bogemelde passasies wil dit voorkom of dit E miskien gesê kan word dat die
mandament van spolie soos ontwikkel en opgeneem in ons gemenereg so uitgebrei het dat dit selfs
beskikbaar geword het teen 'n persoon wat besit bona fide van 'n spoliator bekom het."
The learned Judge refers to Ntai and Others v Vereeniging Town Council and Others, 1953 (4) SA 579
(AD), in support of his conclusion without obvious relevance. The learned Judge records F his
conclusion as follows:
"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."
In Chitiz v Loudon and Another, 1946 W.L.D. 375, ROPER, J., dealt with a situation in which the
owner of a house, through G his agent, incorrectly concluded that a tenant had vacated the
property let to him, whereas the tenant had temporarily left the house for the purpose of having it
fumigated and with intention of returning. The owner gained possession of the property and, in
terms of the operative law, informed the Controller of Manpower that the premises were
unoccupied. Thereupon the Controller on 30 April 1946 issued to one H Prinsloo a certificate
authorising the owner to let to Prinsloo the premises in question. The premises were let to Prinsloo
on 1 May 1946 and he was put in occupation on the same day. On 3 May the respondent received
the original tenant's cheque for the May rent and the misunderstanding was discovered.
Respondent took the attitude that they had reported in good faith that the house was standing
empty and that they could not eject the new tenant. The original tenant refused to accept this
position and sought to regain possession by means of
1977 (3) SA p896
F.S. STEYN, J.
an application for a spoliation order. ROPER, J., quoted fully from the judgment in Burnham v
Neumeyer, referred to above, and concluded:
"This passage has been followed in the case of Louw v Hermann, 1922 CPD 252, and I see no reason
for thinking that it does not correctly set out the law."
A I associate myself with the positive attitude taken by ROPER, J., and prefer this view to that of DE
VILLIERS, J., in Malan v Dippenaar quoted above. Without exhaustive reference to the old authorities
who are divided and who have no direct relevance to the point in question, I am persuaded to
support the view put forward by BRISTOWE, J., and ROPER, J., because B it has been the operative
law of the Transvaal for 60 years and because it fits in with the overriding principle and purpose of
the mandament van spolie: that wrongful dispossession by a person taking the law into his own
hands can promptly be cured by an order against the spoliator to restore the goods in dispute to the
peaceful possessor. A spoliation order against a party other than the spoliator is logically C beyond
the scope of the purpose of the mandament to prevent persons from taking the law into their own
hands. Where possession has passed to a new possessor who became such in good faith, the status
quo ante cannot be restored by remedial action against the disturber of the status quo.
Unfortunately for the original possessor, the dispute has at that stage moved D from the realm of
possessory remedies to that of a vindicatory action. Delay on the part of the original possessor in
recovering his possession, especially after he is aware of the advent of a new possessor in good faith,
would, in my view, further exclude the right to such a spoliation order.
The suggestion put forward by DE VILLIERS, J., in Malan v. E Dippenaar (referred to above) that an
order could be made against a spoliator who has parted with possession of the spoliated goods, is
qualified and limited to instances where transfer of possession must have occurred in bad faith in an
attempt to defraud the rightful possessor. With this view I agree, but I am of the opinion that the
views of DE VILLIERS, J., are misinterpreted if the meaning is assigned to them that F a court could
issue a spoliation order against a spoliator if the facts of the case indicate that there is doubt
whether the spoliator could comply at all with such an order or where the spoliator could only
comply with such order after a vindicatory action by him against the new possessor has been
concluded.
In the present case I hold the view that the fact that the G property in question is, and was, in the
peaceful possession of a third party from a date some weeks prior to the launching of this
application, excludes the possibility of granting a spoliation order to the applicant against
respondent.
In view of the preceding finding on the applicable law and facts of this case, it becomes unnecessary
to analyse the conflicting evidence on the basic question whether applicant H was in possession of
the property when respondent entered it. In case I have erred in my conclusion that the possession
of the house by an innocent third party precludes the grant of a spoliation order, I wish to record
that I have further concluded that applicant failed to supply that amount of proof which is required
for the granting of a final order of his having in fact been in possession of the house when the
alleged spoliation took place. The application is refused with costs.
Applicant's Attorneys: Sasto & Louis. Respondent's Attorney: Deputy State Attorney.
MANS v LOXTON MUNICIPALITY AND ANOTHER 1948 (1) SA 966 (C)
Citation 1948 (1) SA 966 (C)
Annotations
STEYN, J.
1947. November 11; December 15.
Animals - Impounding of - When justified - Rescue of by owner - Reseizure for impounding - Whether
owner entitled to claim damages for reseizure - Damages - Deterioration of condition of animals
while impounded - Onus - Interdict - Spoliation - Sheep originally lawfully seized, rescued by owner -
Servants of municipa%lity reseizing animals - Effect.
Sheep belonging to the plaintiff which had been found trespassing on land belonging to the first
defendant, were, while being driven to the pound
1948 (1) SA p967
by employees of the first defendant, rescued by the plaintiff and taken on to a camp hired by him.
The second defendant, together with certain other employees, then proceeded to the camp, opened
the gates thereof, collected the sheep, drove them to the pound and there impounded them.
Plaintiff subsequently paid the pound fees and charges under protest and had the sheep released.
Certain sheep had died while so impounded. In an action to recover damages for the unlawful
seizure and detention of his sheep, recovery for the value of the dead sheep, the amount paid in
pound fees and charges, and damages for the deterioration in the condition of his sheep,
Held, that plaintiff had failed to discharge the onus of satisfying the Court that the sheep had
deteriorated as a result of their being left in the pound.
Held, further, that when the plaintiff had completed his rescue and had placed his sheep in his camp,
the effort at recovery by the servants of the first defendant was not done instanter but was a new
act of spoliation.
Held, further, that the servants of the first defendant had acted unlawfully when they had entered
the plaintiff's land and reseized the sheep.
Held, further, as the reseizure of the sheep was an unlawful act, that the retention of his sheep was
a mere continuation thereof and was also unlawful.
Action for damages. The facts appear from the reasons for judgment.
T. E. Dönges, K.C. (with him T. van Wyk), for the plaintiff: The defendants had no right to go on to the
ground of plaintiff and take possession of the sheep. See Rex v Pama (1909, E.D.C. 168); van Wyk v
Parker (2 E.D.C. 40 - 41); Voet (43.16.%3); Boyd v Olsen (12 C.T.R., at pp. 575, 579); Blomsen v
Boshoff (1905, T.S. 429). Our law knows no doctrine of counter-spoliation. See Greyling v Est.
Pretorius (1947 (3), S.A.L.R. 514 at p. 517). The defendants had the remedy of pursuit and that did
not give him the right to take the law into his own hands. Plaintiff is entitled to get damages for
defendants' unlawful action both for actual loss and contumelia. Since the first taking of possession
of the sheep by the defendants was illegal they were never out of the plaintiff's possession or
control. See Fouche v Naudé (5 E.D.C. 193); Lunn v Kretzman (1947 (3), S.A.L.R. 591 at p. 595); Rex v
Sikale (1925, E.D.L. 189); Urtel v Bredell (1934 CPD 45). When animals are being herded trespass is
by the herdsman, but if uncontrolled then trespass is by the animals. See Voet (9.1.1). Ord. 18 of
1938 states that only cattle that trespass over private property can be impounded; see paras. 23, 94.
The Ordinance also states that only the owner or his overseer or someone duly authorised in writing
can impound such cattle. Para. 49 sets out what comprises public property. The person impounding
here was not an authorised person. The Municipal Regulations cannot alter the Pound Ordinance.
1948 (1) SA p968
Reg. 52 is ultra vires. It was only published in 1932 at a time when the matter could not be dealt with
by resolution since Ord. 34 of 1934 was only passed subsequently. Ord. 34 of 1934 requires public
notice and can only refer to camps and not unfenced land. Reg. 52 says nothing about public notice.
L. de v van Winsen, for the defendants: Defendants have the right to follow up the sheep, illegally
rescued by the plaintiff, provided they did so without delay and without breach of the public peace.
See Halsbury (Hailsham ed., Vol. 1, para. 954); Clark and Lindsell, Torts (9th ed., p. 396); Rich v
Woolley (131 E.R. 252); Patrick v Coleridge (1838 (1), M. & W. 483). A similar doctrine applies in
Roman-Dutch law. See Voet (41:2:12 & 16; 43:16:3); van Leeuwen, Roman-Dutch Law (2:8:3);
Th%eron v Gerber (1918, E.D.L. 288); Wille, Principles of South African Law (p. 178).
Rex v Palmer (supra) and van Wyk v Parker, distinguishable. In the former case animals escaped on
their own and in latter case animals never actually in possession of person seeking to impound. See
Boyd v Olsen (supra), Blomsen v Boshoff (supra), Greyling v Estate Pretorius (supra), distinguishable.
In any event, as plaintiff's action in rescuing sheep was not only rendered punishable, but absolutely
forbidden by law, his action could have no legal consequence. Accordingly, if. defendants again came
in possession of sheep, they had the same right to impound as they originally had before the rescue.
See Voet (1:3:16); Wille (supra, at p. 292, and authorities there quoted); Standard Bank v van Rhyn
(1925, A.D., at p. 274).
As to defendant's right to impound the sheep on the Commonage, neither the Ordinance nor the
Regulations limit the right of an owner to impound animals found on his ground. Only in those cases
where the animals are unaccompanied. See secs. 23, 30, 37 (1) and (2); 41, 49, as amended, and 50
of the Pounds Ord. 18 of 1938.
Nor is there any justification in the common law for such limitation. See Voet (9:1:3); van Leeuwen
(supra, 4:39:6); de Groot (3:38:11); Groenewegen, De Leg. Abr. (9:2:39:1).
Defendants retain their common law right to impound. The Ordinance did not intend to restrict this
right. See Prince v Graetz (1921, E.D.L., at p. 68). Lawson & Kirk v SA Discount & Acceptance Corp.
(Pty.) Ltd. (1937 CPD 455). Fouche v Naudé (supra) merely laid down the principle that the owner of
1948 (1) SA p969
STEYN, J.
the land may not forcibly deprive the owner of the trespassing animals of his possession of such
animals. Rex v Sikale is to the same effect. This principle is not disputed. It should, however, not be
extended to make it sine qua non of impounding that trespassing animals should be unaccompanied.
In any event, on the facts, the animals impounded were not under the control of plaintiff's herdboy.
Dönges, K.C., in reply.
Cur. adv. vult.
Postea (December 15th).
[zJDz]Judgment
STEYN, J.: This is an action in which the plaintiff, a farmer, of Rietfontein, in the district of Loxton,
sues the defendants, the Municipality and the Town Clerk of Loxton respectively, in the alternative
under Union Rule of Court, as amended, for the payment of a sum of £1,228 14s. 2d., and in his
declaration he avers:
'3. Op of omtrent 28 Januarie 1946, en te Loxton, het tweede verweerder, voorgeënde

op te tree namens eerste verweerder, wederregtelik en onwettelik op toegekampte grond, in eiser
se regmatige besit, oortree, en wederregtelik en onwettiglik 691 skape, behorende aan eiser, en in
sy regmatige besit, uit gesegde kamp verwyder.
4. (a) Tweede verweerder het daarna, sonder regsgeldige gronde daartoe en dus
wederregtelik en onwettiglik, gemelde skape in die munisipale skut van Loxton geskut. (b) In die
alternatief, selfs al het daar regsgeldige gronde vir die skut van die gemelde skape bestaan toe hul in
gemelde kamp was, beweer eiser dat die skut daarvan nogtans wederregtelik en onwettig was
omdat eiser, op die datum en plek gemeld en voordat gemelde skape verwyder en geskut is, tweede
verweerder die aard van die beweerde oortreding en wat die bedrag deur eiser betaalbaar is gevra
het, maar tweede verweerder het geweier om die gevraagde informasie te verskaf en eiser aldus
verhoed om 'n aanbod ingevolge die bepalings van artikel 25 van Ord. 18 van 1938, soos gewysig, te
maak.
5. As gevolg van die voornoemde skending en minagting van sy regte, naamlik
oortreding op sy grond, ontneem van besit van sy skape en die skut daarvan, het eiser skade gely in
die som van £200.
6. Gesegde skape is vanaf 28 Januarie 1946 tot 18 Februarie 1946 in gemelde skut te
Loxton aangehou en gedurende daardie tyd het 19 skape, ter waarde van £27 1s. 6d., as gevolg van
die gemelde aanhou in die skut gevrek. Op 18 Februarie 1946 het eiser die oorblywende 672 skape
uit die skut gelos onder protes en sonder benadeling van enige regte die som van £380 0s. 8d., synde
skutgeld, mylgeld en beweerde oorskrydingsgeld, aan die skutmeester te betaal. As gevolg van die
aanhou in die gemelde skut het die gemelde 672 skape met 'n bedrag van £621 12s. in waarde
verminder.'
1948 (1) SA p970
STEYN, J.
In consequence whereof he claims payment of these sums of £200, £27 1s. 6d., £380 and £621 12s.,
totalling £1,228 14s. 2d., and costs of suit.
In a joint plea of the defendants they say:
'2. Defendants say that second defendant in acting as hereinafter set out did so within the
scope of his duties as an employee of the first defendant.
3. On or about the 28th January, 1946, one Frederick Johannes de Vries acting therein
in his capacity as an employee of first defendant lawfully seized on the Loxton Commonage, for
purpose of impounding them, 688 sheep the property of the plaintiff then and there trespassing on
the said Commonage.
4. After the said sheep had been seized and while they were being driven to the
Municipal Pound under the control of the said de Vries acting as aforesaid along Auret Street in the
Loxton Municipality (the nearest practical route to the said pound) plaintiff with the assistance of his
two employees wrongfully and unlawfully and in contravention of sec. 28 of Ord. 18 of 1938 rescued
the said sheep.
5. Plaintiff thereafter drove the said sheep or caused the said sheep to be driven into
certain fenced-in erven within the Municipality of Loxton and in the lawful possession of plaintiff.
6. The said de Vries acting upon the instructions of second defendant for and on behalf
of the first defendant thereupon lawfully entered into the said fenced-in erven, drove the said sheep
out and caused them to be impounded as he was lawfully entitled to do.
7. Save as above paras. 3 and 4 (a) of the declaration are denied.
8. As to para. 4 (b) of the declaration defendants deny that at any time and place
before the said sheep were impounded plaintiff asked second defendant or any other employee of
the first defendant the nature of the alleged trespass or the amount payable by plaintiff in respect
thereof and deny that second defendant ever refused to give the said information.
9. Each and every allegation in para. 5 contained is denied as fully and effectually as if
herein set forth and denied. It is specially denied that plaintiff has suffered damage in the sum
claimed or in any sum whatever.
10. It is admitted that the said sheep were impounded from the 28th January to the 18th
February, 1946, and that on the last-mentioned date plaintiff freed 672 of his said sheep by the
payment to the poundmaster under protest and without prejudice to his rights of £380 0s. 8d. being
pound dues, mileage and trespass money. It is further admitted that between the dates aforesaid 16
sheep died. Save as above each and every allegation in para. 6 of the declaration contained is denied
as fully and effectually as if herein set forth and denied.
11. Save that it is admitted that defendants refused to pay the said sums or any part of them,
para. 7 of the declaration is denied.
12. Without admitting liability defendants tender to the plaintiff in full and final satisfaction of
all his claims the sum of £50 together with costs on the higher magistrate's court scale to date
hereof.'
and they pray that, subject to their tender, judgment be entered for them with costs.
1948 (1) SA p971
STEYN, J.
In a replication to the plea the plaintiff denies the allegations therein with exception of the
admissions made by the defendants.
From the evidence it appears that early in the morning of the 28th January, 1946, the plaintiff
instructed his herdboy, Jacob Witbooi, also described as Jacob Alexander, to drive a flock of his
sheep from the salekraals, which are situate some distance away from, and to the north of, the town
of Loxton, to certain erven in the town which plaintiff had hired for the grazing of his sheep. Jacob
drove his sheep along a recognised trekpath from the kraal past the Big Dam on the east side of the
town in a southerly direction towards the Beaufort West road south of the town, where the trekpath
ends. Having crossed the Beaufort West road with the sheep en route to the erven Jacob was later in
the morning seen at an embankment to the furrow leading from the Big Dam on the east to certain
Municipal irrigation lands to the west of the town and passing along its southern borders. This
embankment is described in the evidence as the 'Aswal'. While Jacob was at the 'Aswal' the sheep
under his charge were allowed to graze in a valley (leegte) between the 'Aswal' and a small hill
(randjie) further south of the town, and when the veld-ranger and poundmaster, Frederick Johannes
de Vries, an employee of defendant Municipality, saw the sheep grazing on a portion of the
Commonage where grazing without the first defendant's permission was not allowed he went to call
the Town Clerk, Broodryk, the second defendant. On receipt of de Vries' information Broodryk
immediately joined the former, and these two, followed by one Sarel van der Westhuizen,
proceeded to the 'Aswal', where de Vries, no doubt urged by Broodryk, informed Jacob that he was
about to impound the sheep. The sheep were then collected and driven up Auret Street, in the
direction of the pound, by de Vries, Broodryk, van der Westhuizen, Jacob (who was told to help), and
also by one Marais, who had joined the other Municipal officials. When the sheep were on their way
Broodryk returned to his office, but plaintiff appeared on the scene with his employee, Gert
Vrieslaar, and stopped his motor-car in front of the sheep in Auret Street. He saw that his sheep had
gone beyond where they should have been turned down another street to get to the erven which he
had hired for their grazing and, when he learnt from Jacob that they had been seized (gevang), he
and Vrieslaar immediately drove them back in the direction of one of his hired erven. Some
resistance was at first put up by de Vries, van der
1948 (1) SA p972

STEYN, J.
Westhuizen, and Marais, but I am satisfied that their resistance was easily overcome owing to the
dominant personality of the plaintiff. After the sheep had been successfully turned back, plaintiff
had a conversation with de Vries and I am satisfied that plaintiff, both from what his shepherd had
told him and from what he heard from de Vries, knew that his sheep had been seized to be
impounded and that he deliberately rescued them. After de Vries' conversation with Mans he went
to call Broodryk, who returned immediately, and he and plaintiff had an altercation. According to
plaintiff, Broodryk jumped off his bicycle and said. 'Ek skut jou skape jy moet hulle los', and he
thereupon replied, 'Ja Mnr. Broodryk, sê watter oortreding het my skape gedoen, en wat is die
rekening wat ek moet betaal', but I am satisfied that plaintiff never asked for an account. The
evidence as a whole leaves no doubt in my mind that plaintiff was extremely disgruntled because of
the seizure of his sheep, that he neither asked for, nor intended to pay, any account for fees or other
charges connected with the trespass and impounding of his sheep, and that he deliberately rescued
them. When Broodryk arrived on the scene plaintiff's rescue of the sheep had been completed and
his sheep had been driven into a camp on his hired erven by his employees Vrieslaar and Jacob.
When he got no satisfaction from plaintiff Broodryk called de Vries and van der Westhuizen and the
three of them then proceeded to the camp, opened the gate thereof, collected the sheep, drove
them to the pound and there impounded them. Plaintiff arrived at the pound shortly afterwards, at
about noon, but neither then nor at any time before the 18th February, 1946, did he tender to pay
any pound fees or other charges to secure their release. The plaintiff seemed anxious for his sheep
to remain in the pound, because on the third day after they had been impounded, the 31st January,
1946, they strayed from their grazing ground on the commonage on to certain other hired erven of
his in the town and he in turn had them impounded in the same municipal pound. The sheep were
formally released the same day from the pound in regard to the trespass on plaintiff's erven, but
they were nevertheless retained in the pound by reason of the trespass on the commonage on the
28th January, 1946. On 18th February, 1946, plaintiff paid the pound fees and charges, totalling
£380 0s. 8d., under protest, and released his sheep. As to the number of the sheep impounded I
accept the evidence of the defendant's witnesses. The sheep were first counted by de Vries and
1948 (1) SA p973
STEYN, J.
Sarel van der Westhuizen when first seized and the correct number recorded by de Vries in his
pound book from time to time when in the pound. I accept that the correct number was 688, and
not 691 as averred by the plaintiff.
The parties are agreed that the total number when released was 672. As 688 was the original
number when impounded it follows that 16 remained unaccounted for.
As to these 16 sheep the poundmaster de Vries testified that he has practical knowledge of
sheepfarming and that as each of the sheep died he examined the dead body for the cause of death.
He kept a record and this record (R.S.C. 20) shows that all the sheep died from natural causes. de
Vries is corroborated by the witness S. F. van der Westhuizen who also conducted post-mortem
examinations on some of the dead sheep. I accept the evidence of these witnesses that the sheep
died from natural causes and I disregard the plaintiff's surmise that the sheep must have died from
hunger and neglect.
Considerable evidence was led as to the condition of the other sheep (1) when they were
impounded and (2) when they were released. According to the plaintiff their condition was 'good -
very fair' upon their impoundment but very poor - 'treurig' when released. According to the
defendants' witnesses, the sheep were in a poor condition when impounded and their condition had
certainly not deteriorated by the time of their release. I think it unnecessary to give an exhaustive
critical analysis of the evidence of the various witnesses. As for the plaintiff himself, I can say that
the impression he made on me was that he did not always display a scrupulous regard for truth. He
exaggerated when it suited his book: he had fallen foul of the Municipal officials and his evidence
was coloured and influenced by motives of animosity. He would have the Court believe that on the
31st January, 1946 - three days after the first seizure - the sheep were already in a 'baie treurige
toestand' as a result of poor feeding in the pound. According to him the sheep had grazing on the
'randjie' to the north of the town (where there was really no suitable grazing) for the first ten or
twelve days after their impoundment and it was only after he heard, as he alleges, the municipal
herdboy say to the second defendant that the sheep must be given better grazing 'want die skape
word blind van die honger, en kry blindsiekte 'van honger' - ek is 'n skaapwagter en as julle nie ander
veld gee nie sal hulle almal dood gaan', that the sheep were allowed to
1948 (1) SA p974
STEYN, J.
graze in the 'brakleegtes' and the municipal lucerne lands to the south-west of the town where the
grazing was good. The sheep must, however, have been allowed to graze in the lands to the south-
west of the town (i.e., in the 'brakleegte', etc.), as early as the 31st January because it was from that
direction that they strayed on to the plaintiff's hired erven when he himself impounded them. He
professed to be a great lover of his sheep and I can therefore hardly credit his impounding them
knowing that they might 'vrek van honger' when in the pound, even though he was merely acting
out of spite. I also find it difficult to credit that the sheep could have 'baie agteruit gegaan' after
three days, i.e., by the 31st January as the plaintiff required the Court to believe. Of the witnesses
whom he called to corroborate him, A. N. van der Westhuizen did say of the sheep 'hul was in slegte
toestand toe hul uitgekom het' but his evidence leaves a great doubt in my mind as to whether he
saw the sheep either before their impoundment or after their release. Van Wyk also was uncertain
as to the identity of the sheep which he saw and the same can be said of the witness Lombard who
went on to say that on the 18th February 'die toestand van die skape was nie te sleg nie'. The other
witness Mans, a nephew of the plaintiff, had really little opportunity of forming an opinion of the
condition of the sheep when taken to the pound because he sat in the car and could hardly see from
there into the poundkraal where the sheep were on the single occasion afforded him for forming an
opinion as to their condition. On the other hand several of the defendant's witnesses, e.g., J. F. van
der Westhuizen, de Vries, Marais, Grove and Smit even testified to the improvement in the condition
of the sheep whilst in the pound. The sheep had good grazing in the Brakleegte and lucerne lands
according to the witnesses de Vries, A. N. van der Westhuizen and Grove and there is no evidence
that they did not get enough water to drink. I have no reason to doubt the opinions expressed by
these witnesses that the sheep did not go back in condition and plaintiff's own herdboy, Jacob
Alexander, does not bear him out as to the condition of the sheep when they were seized and taken
from him to the pound. According to Jacob the flock consisted mostly of ewes but there were also
large lambs and some rams: the ewes were 'baie maer' and the lambs 'maer maar mooi sterk', in
conflict with plaintiff's evidence that the sheep were 'vir boer skape in eerste klas kondisie'. The
onus of satisfying the Court that his sheep deteriorated as a result of
1948 (1) SA p975
STEYN, J.
their being kept in the pound is on the plaintiff: this onus he failed to discharge: I accept the
evidence of the defendants' witnesses in preference to his evidence and that of his witnesses and it
follows that his claim for damages for the deterioration of his sheep cannot succeed.
I proceed to consider plaintiff's claim (1) for the £200 damages for the alleged unlawful trespass by
the second defendant and the other servants of the first defendant when they proceeded on the
28th January to reseize plaintiff's sheep on his hired erven and (2) for the refund of the £380 0s. 8d.
which he paid to release his sheep from the pound on the 18th February, 1946.
Though Mr. Dönges, who appeared for the plaintiff, made several submissions that for various
reasons the first seizure by the poundmaster de Vries, backed as he was by the town clerk Broodryk
(second defendant) of the plaintiff's sheep, i.e., on the Commonage near the 'Aswal', was an
unlawful act, he argued the case firstly on the basis that that seizure was lawful. I shall therefore
proceed to examine the plaintiff's claim on the assumption that the first seizure of the sheep at the
'Aswal' was a lawful act and that when plaintiff rescued the sheep from de Vries, who was taking
them to the pound, the sheep were in the lawful possession of de Vries and/or the servants of the
municipality. Plaintiff's own act in rescuing the sheep was an unlawful act and constituted a
contravention of sec. 28 of Ord. 18 of 1838, for which he might have been prosecuted. When the
second defendant, Broodryk, reappeared on the scene, gathered de Vries and others to recover the
sheep and proceed on to plaintiff's hired erven, plaintiff's own rescue was a completed act because
the gate was already closed. The question therefore is whether de Vries and second defendant also
became spoliators just as the plaintiff had been a spoliator when he effected his rescue; if they were
then their seizure of plaintiff's sheep on his property was a trespass and an unlawful act.
Mr. Dönges contended that the principle of spoliatus ante omnia restituendus est is too well grafted
into our legal system to require any citation of authority: he also maintained that our law does not
recognise a right of contra-spoliation and he quoted the recent decision of Greyling v Estate
Pretorius (1947 (3) S.A.L.R. 514) as illustrating how strongly our Courts disapprove of persons taking
the law into their own hands. Mr. van Winsen, who appeared for the defendants, admitted the
correctness of the first proposition but as to the second, he contended that in our law as well as in
English
1948 (1) SA p976
STEYN, J.
law the despoiled possessor may recover the article or property of which he has been despoiled
provided he acts forthwith (instanter) and provided that in so doing he does not commit a breach of
the peace. In support of this he quoted Halsbury (Hailsham Edition Vol. 1 para. 954), Clark and
Lindsell on Tort p. 396, Patrick v Coleridge (1838 (1) M. & W. 483); Rich v Woolley (131 E.R. 252 7
Bing 651); Wille Principles of Roman-Dutch Law p. 178, Voet 41.2.12.16; 43.16.3); van Leeuwen,
Roman-Dutch Law (2.8.3) (Kotze's translation p. 199). The question is, however, what construction
should be placed upon 'forthwith', 'instanter'. Van Leeuwen, in the passage cited above, construes
'forthwith' in a wide sense so as to enable the despoiled possessor to wait for a few days so as to
collect men to assist in recovery.
This is a conclusion which he draws from passages in the Digest viz., 41.2.3.7 et seq. but these
passages do not seem to bear him out: if van Leeuwen's conclusion is correct then no value can be
attached to the second part of the proviso, viz., that there shall be no breach of the peace. According
to Voet and other authorities quoted by Mr. van Winsen the person despoiled of his possession can
forthwith - instanter - recover his possession. Thus Voet in his title concerning possession says of the
possessor:
'Moreover he can resist all, who devise something against his possession by virtue of their
own authority and if he has been thrown out of the possession, he can there and then eject his
adversary, or otherwise demand by the interdict unde vi that before all things the possession be
restored to him, even though he who was put out of possession were a thief or robber.'
(Voet 41.2.16 Krause's translation p. 158) and according to the Digest 43.16.3 - 9, the ejectment
must be forthwith and not after an interval - see also Salkowski's Roman Private Law (Whitfields
translation pp. 442, 443) and Wassenaar (14.11) as quoted by Price on Possessory Remedies in the
Roman-Dutch Law at p. 58. Savigny, in his treatise on possession (IV.42) dealing with the interdictum
de vi, says, (quoting from Perry's translation at p. 331)
'Whoever loses possession through an act of violence, and immediately thereupon

repossesses himself by violence, never actually loses the possession. This, therefore, is not to be
considered as a double dejectio, but only as one indivisible transaction, in which the previous
possessor defended his possession by force. The practical bearing of this view is important; if the
transaction contained a double dejectio, the legality of the second dejectio could only be supported
by an exception against the interdict of the other party, and this exception was no longer held good
in the modern law; but on the above view the exception was unnecessary, because the factum
(dejectio) was wanting, on which alone the interdict could be founded, and the legality of the act
would be a simple consequence of the
1948 (1) SA p977
STEYN, J.
general right of self-defence. An important application of this rule occurs as to the

possession of land, which is occupied in the absence of the possessor. For if the possessor is
prevented by force from entering, he then only loses the possession, and that by an actual dejectio:
if, conversely, he succeeds in ejecting his opponent, no dejectio at all has taken place, and the
previous possession is not lost, so that no doubt can arise on the legality of this act.'
Huber, Hed. Reg. in V.10.8 expresses himself as follows on this point (Gane's translation Vol. 2 p.
218):
'8. But suppose that you ousted me from my land, and I in turn drove you off with
similar violence, and then you claim restitution from me; the question arises, Are you entitled to
succeed in your claim? The answer is No, if I in turn ousted you forthwith and in one and the same
brawl. But if I took to flight, and some time later gathered people and assaulted you, and compelled
you in turn to retire, then you have the possessory remedy. The reason is that the first violence took
place by way of defence, but the second took the form of rioting; and legal processes, especially the
possessory, were instituted with the object of preventing and quelling violence, for if private persons
could right and avenge themselves, the country would not be fit to live in.'
It may be contended that the interdict unde vi related to dispossession of immovable property but
as pointed out by Savigny (Perry's translation at p. 332)
'the same grounds for protecting the naked possession exist with respect to movables, as to
immovables and it would be inconsistent if no interdict, or other suit, were available for the former
by which the interdict de vi might be represented':
Indeed no distinction appears to have been made in our Courts between immovable and movable
property so far as spoliatory orders are concerned. See, e.g., Shahmahomed v Hendricks and Others
(1920 AD 151).
From the authorities cited above, and more especially Savigny, and Huber, it seems to me that the
principle of spoliatus ante omnia restituendus est has been developed and become engrafted on to
our legal system so as to preserve peace in the community (see, e.g., passage cited above from
Huber). Breaches of the peace are punishable offences and to prevent potential breaches the law
enjoins the person who has been despoiled of his possession, even though he be the true owner
with all rights of ownership vested in him, not to take the law into his own hands to recover his
possession: he must first invoke the aid of the law: if the recovery is instanter in the sense of being
still a part of the res gestae of the act of spoliation then it is a mere continuation of the breach of the
peace which already exists and the law condones the immediate recovery, but if the dispossession
has been completed, as in this case where the spoliator, the plaintiff, had completed his rescue and
placed
1948 (1) SA p978
STEYN, J.
his sheep in his lands, then the effort at recovery is, in my opinion, not done instanter or forthwith
but is a new act of spoliation which the law condemns.
It may well be that a more liberal construction of instanter, forthwith should be given to a true
owner exercising his right of recovery instanter, forthwith, when ejected from his possession, than
should be given to other classes of possessors - I express no opinion hereon - but it seems to me that
the first defendant's servants acted wrongfully in venturing on to plaintiff's lands after he had
queried their right to be in possession of his sheep. They could have prosecuted plaintiff for a
contravention of sec. 28 of Ord. 18 of 1938 or for a contravention of Reg. 191 of the municipal
regulations and they could also have instituted a civil action for the recovery of their fees in
connection with the trespass. They elected, however, to take the law into their own hands to assert
their authority.
Mr. van Winsen further justified the reseizure of the plaintiff's sheep on the latter's lands on the
ground that plaintiff's rescue being an illegal act in contravention of the provisions of the statute -
sec. 28 of Ord. 18 of 1938 - must in law be regarded as a nullity on the authority of cases such as
Standard Bank v Estate van Rhyn (1925 AD at p. 274); McLoughlin N.O v Turner (1921 AD at p. 556);
Kinemas Ltd v Berman (1932 AD 246), but plaintiff's unlawful rescue remains an act done by him - it
is not a factual nullity: it may be regarded as a legal nullity so as to entitle the persons who were
dispossessed by him to apply through legal channels to be restored to possession but it cannot be
regarded as a negation of the principle enumerated above viz., spoliatus ante omnia restituendus
est.
In my opinion, therefore, the first defendant's servants acted unlawfully when they entered upon
plaintiff's lands and reseized the sheep. They therefore committed a trespass which entitled the
plaintiff to some damages: these damages must necessarily be slight as it was a nominal trespass for
which nominal damages should be awarded. I think that a sum of £5 will be more than sufficient to
meet the merits of the case.
As I find that the reseizure was an unlawful act committed by the first defendant's servants it follows
that the retention of plaintiff's sheep was a mere continuation thereof and was also unlawful and
that the first defendant was not entitled to levy the charges prescribed by the Ordinance for
impounding and maintaining the sheep in the pound, such charges being leviable only in cases of
1948 (1) SA p979
STEYN, J.
legal impoundment. It follows therefore that the plaintiff is entitled to a refund of the £380 0s. 8d.
less the sum of 1s. for mileage and the £2 17s. 4d. for trespass, i.e. to the sum of £377 2s. 4d.
As to whether the plaintiff is entitled to the 1s. mileage and the £2 17s. 4d. for trespass on the
Municipal Commonage will depend upon whether the original seizure was lawful or not.
Earlier in my judgment I stated that when the plaintiff's sheep were seized near the 'Aswal' they
were grazing on a portion of the commonage where such grazing without the first defendant's
permission was not allowed. In terms of Reg. 52 of the Loxton Municipal Regulations it is provided
that:
'52. The Council shall from time to time as may be deemed expedient allocate separate
portions of the pasture lands for the grazing of the different descriptions of the livestock of the
householders of the municipality and others; and any stock of whatever description found
trespassing on any part of the pasture lands set apart for the grazing of a different description of
stock may be impounded by the Council or by any householder.'
and on the 24th January, 1939, according to the Council's minute book, the Council passed the
following resolution:
'dat die deel van die dorpsgrond wat geleë is van die Grootdam tot by Boomstraat waar die
randjie doodloop en Suid tot Buitenkantstraat, vanaf die Noord wal tot by die Noordelike heining
van die kalwerkamp voortaan afgesonder word vir die weiding van trekdiere van eienaars van grond
op Loxton wat gedurende ploeg - en oestyd gebruik word'.
This area was therefore set aside for 'trekdiere' used in ploughing and reaping seasons. The grazing
of sheep there was inferentially forbidden and it is clear from the evidence that the area so set aside
under the resolution of 24th January, 1939, included that part of the commonage near the 'Aswal'
where plaintiff's sheep were seized. It is also clear that this resolution is still in force and I am
satisfied that plaintiff was fully aware that his sheep were trespassing when allowed to graze where
they were seized near the 'Aswal' on 28th January, 1946. The regulation prima facie sanctions
impounding for such trespass but Mr. Dönges contended on the authority of such cases as Fouche v
Naudé (5 E.D.C. 193) and Rex v Sikale (1925, E.D.L. 189) that the impounding is not justified where
the trespassing animals remain under the control of the owner or his servants, but as pointed out by
GARDINER, J.P., in Urtel v Bredell (1934 CPD 43 at p. 45) 'in both these cases the animals were never
out of the control during the time they were on the impounder's land': here the herdboy allowed the
animals to stray on to a forbidden part of the commonage whilst he was
1948 (1) SA p980
STEYN, J.
some distance away, i.e. seated at the 'Aswal' and he did not exercise such control as was retained in
the cases cited by Mr. Dönges.
In my opinion, therefore, the animals were trespassing within the meaning of Reg. 52 and they were
lawfully seized under the powers therein conferred. This being my view it is unnecessary to consider
whether the animals were also lawfully seized for impoundment under the provisions of the Pounds
Ord. 18 of 1938 as contended for by Mr. van Winsen. It follows, therefore, that plaintiff became
liable for the tresspass money, £2 17s. 4d., and the mileage of 1s. (for the distance the sheep had
been driven on the way to the pound), the same being leviable charges under the provisions of the
Pounds Ordinance No. 18 of 1938.
It follows, therefore, that plaintiff is entitled to judgment in the sum of £5 and of £380 0s. 8d. less £2
18s. 4d., i.e. to judgment for the sum of £382 2s. 4d.
As to costs, the plaintiff succeeds on the issues relating (1) to the trespass on the hired erven and.
(2) for recovery of the bulk of the money which he paid to release his sheep from the Pound: he is,
however, to a large extent the author of the wrongs of which he complains - he could have released
his sheep either when they were being taken to the Pound or immediately after their impoundment
at a relatively trifling cost, but for reasons of his own he allowed them to remain in the Pound for
several weeks, going to the length of himself impounding them after three days, so that the
sustenance fees which he now succeeds in recovering mounted up. Furthermore he fails on three
substantial issues relating to (i) the lawfulness of the first seizure of his sheep, i.e. for their trespass
near the 'Aswal', by the first defendant's servants for the purpose of being impounded, (ii) the
alleged refusal of the second defendant to supply him with the necessary information relating to the
reason for such seizure and to advise him of the amount due for such trespass, and (iii) his claims for
damages for loss and deterioration of his sheep when in the pound.
I assess the time of the Court which was occupied in the hearing of the issues on which the plaintiff
failed as two-thirds of that of the total hearing. As the case lasted 6 days plaintiff would ordinarily be
entitled to judgment for the sum of £382 2s. 4d. and costs based on a hearing of 3 days. On the
issues on which he failed he should be ordered to pay the defendants' costs. Taking into account the
general costs of the action to which the plaintiff is entitled it seems
1948 (1) SA p981
STEYN, J.
to me that a fairly accurate estimate of their respective liabilities would be that each pay half the
combined costs of the whole action. This would mean, in fact, that each party would be left to pay
his own costs and in the circumstances I think this is the fairest order to make.
In his declaration plaintiff asks for judgment against the defendants in the alternative and in the joint
plea of the defendants it is stated that the second defendant acted in the scope of his duties as a
servant of the first defendant. First defendant therefore assumed liability for the acts of the second
defendant who apparently incurred no costs independent of those of the first defendant. My
judgment is accordingly in favour of the plaintiff against the first defendant for the sum of £382 2s.
4d - plaintiff and first defendant to pay their own costs - first defendant's costs to include those, if
any, of second defendant.
Plaintiff's Attorneys: Dempers & van Ryneveld; Defendants' Attorneys: Bosman & Krige.
DE BEER v FIRS INVESTMENTS LTD 1980 (3) SA 1087 (W) C
Citation 1980 (3) SA 1087 (W)
Court Witwatersrand Local Division

Annotations
COETZEE J
1980 May 23; June 4
D Interdict - Spoliation - Applicant occupying shop under alleged oral lease - Owner denying
existence of any lease - Applicant painting shop and fixing locks on doors - Owner removing such
locks and fixing others the next day - Applicant a trespasser - Owner's action instanter being part of
E the res gestae of the original spoliation - Owner entitled to recover possession from spoliator -
Such a justifiable counter-spoliation.
B had been the lessee of a shop, of which the respondent was the owner, until 14 May. On 15 May
the applicant took possession thereof in pursuance F of an oral agreement of lease alleged to have
been concluded with the owner. On 19 May he received the keys from B, took occupation of the
shop, started painting the inside and fixed extra safety locks on the doors. When he was asked by an
employee of the owner what he was doing in the shop he answered that he was there with the
consent of the owner, which was a lie. On 20 May he found that the locks had been changed and he
could not enter the shop. In an urgent application for an order reinstating him in possession the
respondent denied the existence of any lease: G consequently the applicant was a trespasser.
Held, having regard to the time when applicant fixed the locks and when the respondent substituted
others, that the respondent's action qualified as having been instanter and was part of the res
gestae of the original spoliation by the applicant.
H Held, further, that respondent as owner had the right to recover the property which another had
taken by force.
Held, further, that the applicant's conduct on 19 May could be equated to that of a spoliator. The
respondent's conduct amounted to justifiable counterspoliation. Application dismissed.
Urgent application for an order reinstating the applicant in possession of a shop. The facts appear
from the reasons for judgment.
J J Wessels for the applicant.
J A Heher for the respondent.
1980 (3) SA p1088
COETZEE J
Cur adv vult.
Postea (June 4). A
[zJDz]Judgment
COETZEE J: The applicant approached the Court as a matter of urgency for an order reinstating him
in his possession of shop No 38 in The Firs Shopping Centre, Rosebank. He claims that he had been
spoliated. The facts B which he alleges in the supporting affidavit are straightforward. He took
occupation of shop No 38 on 15 May 1980 in pursuance of an oral agreement of lease concluded
between himself and the respondent, the owner of the shopping centre (represented by one
Aronovsky) on 28 April 1980. On 19 May 1980 he received the keys of the doors of the shop from the
previous tenant and on that day he occupied the shop physically with a certain C quantity of paint
and painting materials to redecorate the interior. During that day he also brought some personal
documents onto the premises and he started to paint the walls. At about 5 pm the walls were
finished but during the day he installed three extra safety locks, one at the rear D door and two at
the front door. On 20 May, in the morning, when he arrived at the shop he found that these locks
had been drilled out and had been substituted with others of which he did not have the keys and he
could therefore not get access to the shop. He spoke to a Mr Jenkins of the respondent and he says
that he suspects that it was the respondent who installed the new locks because, during the course
of 19 May, a locksmith E arrived at the shop who informed him that he had been sent by the
respondent to change the locks. The applicant merely sent him away. On the basis of these facts the
applicant alleges that he was in peaceful possession of shop No 38, The Firs, Rosebank, and that an
unlawful act of spoliation had occurred. If these were the only facts the respondent was
undoubtedly a spoliator and the applicant is entitled to the order which he seeks.
F However, the answering and replying affidavits create a completely different picture from the
simple one presented by the applicant. It appears from these affidavits and the correspondence
attached thereto that there was a meeting between the applicant and Aronovsky on 28 April 1980
when a lease was certainly discussed, at the least. There is however a G sharp dispute of fact as to
what was agreed on that date. Aronovsky contends that there was no agreement and that only an
application for a lease was signed by the applicant. This was preceded by negotiations and
Aronovsky indicated that the application was being favourably considered. But he insists that a lease
had yet to be approved and entered into in writing.
H The applicant is supported by the previous tenant, Bendemann, that on 28 April it was agreed that
the applicant would become the lessee on 15 May and that Bendemann would give up his tenancy
and vacate the shop by 14 May. The one matter which is very clear and not in dispute is that
Bendemann's tenancy expired on 14 May, be it by agreement between him and the respondent or
as a result of the respondent subsequently claiming that the lease was being cancelled. The fact is
that Bendemann vacated the shop and that he was not the tenant at the close of business on 14
May. What is equally manifest from the correspondence
1980 (3) SA p1089
COETZEE J
is that as early as 9 May the respondent had stated clearly that it was not going to enter into a lease
with the applicant in respect of the shop. Rightly or wrongly, the respondent firmly took up the
position that the A applicant had no lease and that he was not entitled to take occupation of the
shop. The applicant's attitude as at 13 May is reflected in a letter written on his behalf on that day
by his attorneys which is attached to the respondent's answering affidavit. I would have expected it
to be disclosed by the applicant when founding his case. In this letter his attorneys write, inter alia,
as follows:
B "Ingevolge die ooreenkoms sal ons kliënt die persele, te wete winkel 49, vanaf 15 Mei 1980
betrek. Ter voorbereiding hiervan het ons kliënt uitgawes in verband met die opbou van voorraad
asook veranderings en verbeterings aan die persele aangebring sedert 28 April 1980. Die totale
kostes hiervoor aangegaan beloop in die omgewing van R40 000.
Ons kliënt deel ons mee dat u kliënt hom op of ongeveer 8 Mei 1980 C meegedeel het dat hy die
ooreenkoms kanselleer en dat ons kliënt nie die persele op die genoemde datum mag betrek nie.
Ons kliënt aanvaar onder geen omstandighede hierdie kansellasie nie en dring aan op vervulling van
die terme daarvan.
Ons opdragte is om u in kennis te stel dat, indien u sou versuim om gehoor te gee aan die terme van
die ooreenkoms, 'n dringende aansoek gebring sal word waarby 'n interdik aangevra sal word teen u
kliënt om ons kliënt toe D te laat om die persele te betrek.
Ons wys u daarop dat enige versuim aan u kant om uitvoering te gee aan die kontrak onherstelbare
skade aan ons kliënt sal veroorsaak.
Ons wys u verder daarop dat sodanige skade as sulks sal wees dat dit ons kliënt effektief sal
verhinder om alternatiewe regshulp aan te vra.
Ons opdragte is om u mee te deel dat tensy u ons skriftelik voor 09h00 op 14 Mei 1980 van u kliënt
se onderneming voorsien om die ooreenkoms gestand E te doen, ons sal voortgaan met die nodige
stukke."
Instead of launching proceedings in Court as foreshadowed, the applicant apparently decided upon a
more summary remedy - of taking the law into his own hands by simply occupying the shop.
The reply to this letter is dated 16 May 1980 and was delivered by hand to F the applicant's
attorneys. In this letter the respondent's attorneys record that their client denies the agreement
alleged by the applicant and they make it abundantly clear that the applicant has not been given any
right whatsoever to occupy this shop. Collaterally, correspondence was also being carried on with
Bendemann and it appears from a letter which Bendemann's attorneys wrote on 14 May that he was
also aware (already by 9 G May) that the respondent was not prepared to have the applicant as a
lessee of the premises. In their letter they place on record that all his own liabilities in terms of the
lease would end as and from close of business on 14 May. The letter concludes by stating that
Bendemann will be vacating the premises as at close of business, 14 May, and
"will be handing over possession to Mr De Beer in terms of the new deed of H lease entered into
between your client and Mr De Beer".
On the same say the respondent's attorneys replied to Bendemann's attorneys making it clear that
they persisted in their attitude that there was no agreement of lease as far as the applicant is
concerned and concluding their letter as follows:
"We note your client's intention to vacate the premises. It is denied, however, that such vacation is
in terms of the agreement to which reference is made in para 4 of your letter. Should your client
deliver possession of the premises to De Beer, the appropriate action will be instituted against him
without further notification or delay."
1980 (3) SA p1090
COETZEE J
There is therefore no doubt whatsoever that both Bendemann and the applicant knew very well that
Bendemann had no authority to hand over A possession of the premises to the applicant on
respondent's behalf. Any purported transfer would obviously be unlawful. Whether or not a binding
agreement of lease came into existence on 28 April is irrelevant and need not be decided. The actual
handing over of the keys only took place on 19 May as set forth by the applicant in his affidavit. Of
this the respondent B is unaware and it took place despite its prohibition thereof. Bendemann and
the applicant obviously conspired to put the applicant into possession of premises which the owner
was not prepared to hand over to him. Exactly that was done on the morning of 19 May 1980. The
applicant therefore certainly became an occupant against the explicit prohibition of the owner and
he was consequently a trespasser. His agreement of lease, if it indeed C existed, did not entitle him
to take the law into his own hands and he should have done what his attorney said (on 13 May) he
was going to do, namely to institute action against the respondent to compel the respondent to
perform his part of the contract. It is therefore necessary to examine the facts to determine whether
the respondent, under the circumstances, D was entitled to take action by way of self help to regain
his lost possession.
In Mans v Loxton Municipality and Another 1948 (1) SA 966 (C) STEYN J went fully into the principle
of counter-spoliation and the circumstances when a spoliatee may with impunity commit a
counterspoliation in order to recover his lost possession. He comes to the following conclusion (at
977):
E "From the authorities cited above, and more especially Savigny, and Huber, it seems to me that
the principle of spoliatus ante omnia restituendus est has been developed and become engrafted on
to our legal system so as to preserve peace in the community (see, eg, passage cited above from
Huber). Breaches of the peace are punishable offences and to prevent potential breaches the law
enjoins the person who has been F despoiled of his possession, even though he be the true owner
possession: he must first invoke the aid of the law: if the recovery is instanter in the sense of being
placed G his sheep in his lands, then the effort at recovery is, in my opinion, not done instanter or
forthwith but is a new act of spoliation which the law condemns. It may well be that a more liberal
construction of instanter, forthwith, should be given to a true owner exercising his right of recovery
instanter, forthwith, when ejected from his possession, than should be given to other classes of
possessors - I express no opinion hereon - but it seems to me that the first defendant's servants
acted wrongfully in venturing on to plaintiff's lands after he had queried their right to be in
possession of his sheep."
H Lee and Honoré The South African Law of Property, Family Relations and Succession at 9 say the
following:
"Any person? B dispossesses A. A regains possession by expelling B. If he does so instanter and as

part of the res gestae of the original brawl, he is exercising a permitted right of self defence -
counter-spoliation - (Mans v Loxton Municipality 1948 (1) SA 966 (C) at 977). If he does so after an
interval, he is acting wrongly, and B will have his action to recover possession. But it does not follow
that the Court will give him the summary remedy of re-instatement.... The Dutch books suggest a
shorter interval without defining it (Wassenaar Practyk Judicieel cap XIV para 11; Van Leeuwen
2.8.3). In South Africa it would
1980 (3) SA p1091
COETZEE J
seem to be within the discretion of the Court to refuse its aid to the original spoliator and, so far, to
condone an act of counter-spoliation."
In one of the latest text books to appear in this field of the law, A Sakereg, by C G van der Merwe (at
93) the following is said:
"'n Besitter mag enige persoon wat dreig om sy besit te versteur, weerstaan. Indien sy besit hom
reeds ontneem is, mag hy ook onmiddellik die verlore saak van die spoliator terugneem voordat die
spolie heeltemal voltooi is, ooreenkomstig die beginsel van contra-spolie. Indien A en B in 'n
argument oor 'n motor wat in A se besit is betrokke raak en B die motor wegneem, mag A hom
agtervolg en die motor terugneem solank hy dit B instanter as deel van die oorspronklike geskil
doen. Indien A eers na 'n tydsverloop sy besit terugwen, behoort 'n mandament van spolie in
beginsel teen A ingestel te kan word. Volgens sommige gemeenregtelike skrywers behoort
besitsherstel in so 'n geval nie teen A beveel te word indien B die saak nie vir 'n geruime tyd besit het
nie. 'n Wye diskresie bestaan dus om contra-spolie goed te keur."
It is common cause that some time during the day of 19 May Jenkins, on C behalf of the respondent,
came to the shop to see what the applicant was doing there. The applicant says the following of this
occasion:
"On 19 May 1980 Mr Jenkins entered the premises in question and asked me what I was doing there.
I told him that I was altering my premises. Mr Jenkins asked me who had given me permission. I told
him that Mr Aronovsky had done so and that is why I was there. He said that he would have to D
speak to Mr Aronovsky and walked out of the shop. He did not come back."
According to Jenkins, he once again pointed out to the applicant that he had no right to be on the
premises or to effect any repairs or alterations thereto and more particularly so since the
respondent had rejected the application to lease the premises submitted to it by Slipron (Pty) Ltd,
the applicant's company. Furthermore, the locksmith referred to by E applicant was an employee of
the respondent, who describes him as a maintenance engineer. He was instructed to change the
locks to the premises and this was done because Aronovsky suspected that, because of what was
said in the letter which I have already quoted, the applicant F might carry out his threat to take
possession of the premises. He intended to
"preclude such attempt as I knew that the keys were in the possession of Bendemann and suspected
that he had handed same to the applicant".
On these facts the respondent's counsel argued that if one takes a realistic view of the matter this
was really a case where the counterspoliation was still part of "the original brawl". When one deals
G with a flock of sheep, such as in Mans' case, it is understandable that, once the sheep are on the
property of the spoliator and are safely locked up on his own property, any act thereafter by which
the owner is deprived of their possession is a fresh spoliation and not, as STEYN J found, a
continuance of the original breach of the peace. I think the position must H be viewed somewhat
differently when one deals with the kind of thing involved in this matter. The respondent can only
occupy its own premises by locking it up. After the applicant arrived there it was in the beginning not
yet clear to Jenkins that he was already firmly in possession. He was only painting, which could have
been in preparation of an eventual attempt to occupy, but even assuming that to be an
"occupation", the fact is that Jenkins, when he sees the respondent there, enquires from him what
he is doing and for what purpose he is there and on the applicant's own version Jenkins is simply told
that he is there with the consent of Aronovsky,
1980 (3) SA p1092
COETZEE J
which is of course a lie. When the maintenance engineer later arrives to put in locks he is sent away
by the applicant and it is not clear on the A papers exactly at what time during the day this
occurred. It may very well be that soon thereafter the applicant installed the three locks that he
speaks of and that again, soon after that, he locked up the shop, after which the maintenance
engineer returned, drilled out the locks and put in his own locks.
B All this seems to me to be part of the res gestae. It is really one transaction consisting of applicant
taking occupation by installing locks and shortly thereafter a removal of those locks and installation
of other locks on behalf of the owner. No appreciable time elapsed and it does not appear to me to
be a case where the applicant was so firmly ensconced in his possession as the plaintiff was in the
Mans' case supra by the time C that the second spoliation took place. It is difficult to think what else
the respondent should or could have done at the time when the first spoliation (ie installation of the
locks) took place. The possession of space in respondent's building is involved and the only fact of
possession is the control which is exercised through the locks and keys. All that D respondent could
do was to put in its own locks at a time when it became possible to do so without perhaps getting its
maintenance engineer involved in a bout of fisticuffs or an assault which I think it was wise to avoid.
I think its action qualifies as having taken place instanter. To insist that, immediately after the
applicant had installed his own locks, the transaction was complete and that any further action on
respondent's E part to obtain control of its property is a fresh spoliation, is to my mind an unrealistic
evaluation of the situation. It smacks of an overly detached arm-chair view as the occurrence should
not be too closely equated to a brawl where a quick exchange of blows is of the essence. This is not a
simple case of the owner of a single dwelling, in which he lives, F being available at all times to repel
intruders and potential spoliators there and then. At all events, I think there is much to be said for
the suggestion in Mans' case that a more liberal construction of instanter should be given to a true
owner exercising his right of recovery of his property - particularly in a case like the present where
the applicant against the clearest expression of the respondent's prohibition, deliberately takes the
law in his own hands.
G A point was however raised on applicant's behalf that the premises were possessed up to 14 May
by Bendemann and not by the respondent as owner; consequently, that there was no disturbance of
the respondent's possession as such by the applicant and that there is no room for application of the
principles of counter-spoliation. This, to my mind, loses sight of a very important incident of
ownership.
H In The South African Law of Property, Family Relations and Succession (supra at 12) the learned
authors say that the owner of a thing has the right to deal with it as he pleases within the limits
allowed by law, that he may reclaim it from anyone who wrongfully withholds it and resist any
unlawful invasion of his rights. One of the owner's rights is to have possession of his property. See
Graham v Ridley 1931 TPD 476 at 479. On termination of a lease the lessee's right to the use and
enjoyment of the property ceases absolutely and he is bound to restore the property to the lessor.
See Kerr The Law of Lease in South Africa at 118; Voet
1980 (3) SA p1093

COETZEE J
19.2.32. Van der Keessel in his Praelectiones (Pretoria University trans vol 2 at 41) ad Grotius 2.3.3
makes it clear that the owner has the right when someone takes his thing to recover it by force.
Although therefore A the respondent in the instant case might not have been in physical possession
of the shop between 15 and 19 May, it is perfectly clear that the lessee had indeed given up
possesion and the respondent as owner was entitled at any time after 14 May to physically move
into the shop, to occupy it and to physically prevent any other person from taking occupation of its
property. A trespasser such as the applicant undoubtedly B was, cannot be in a better position than
a spoliator.
Hence, there seems to me to be a perfectly logical basis in law for equating the applicant's conduct
on 19 May to that of a spoliator. The respondent's conduct amounted to justifiable counter-
spoliation. The application is therefore dismissed with costs.
C Applicant's Attorneys: Derek Brugman & Partner. Respondent's Attorneys: Raphaely-Weiner.
NESS AND ANOTHER v GREEF 1985 (4) SA 641 (C) D
Citation 1985 (4) SA 641 (C)
Annotations
VAN DEN HEEVER J, BAKER J and VIVIER J
1985 May 2; August 16
Spoliation - Counter-spoliation by owner of premises 11 days after applicant had entered premises -
Held to be instanter recovery and justifiable counter-spoliation where applicant had E entered
premises against owner's express prohibition, ignored notice that premises closed and replaced lock
which owner had fitted two days after applicant had entered premises.
The appellants had applied unsuccessfully in a Provincial F Division for a mandament van spolie in
which the first appellant sought an order reinstating his possession of portion of a building owned by
respondent. The appeal against this refusal was dismissed by the Full Court which held that although
a period of 11 days had elapsed between the time that the first appellant had taken occupation of
the premises until he was locked out by the respondent, the respondent's conduct G amounted to
instanter recovery of the premises. The Court accordingly regarded this as a justifiable spoliation in
circumstances where the first appellant had entered the premises against the owner's explicit
prohibition; had ignored a notice put up by the respondent that the premises were closed on the
instructions of the City Council; had replaced the lock which had been installed by respondent's
locksmith two days after he had entered the premises for the first time: in these H circumstances
the respondent had continuously defended her possession and the events which followed after the
entry of the first appellant into the premises were all part of the res gestae of the original act of
spoliation.
Appeal against the refusal of an interdict in a Provincial I Division. The facts appear from the reasons
for judgment.
I G Farlam SC (with him D A Lenhoff ) for the appellants.
P A C Gamble for the respondent.
Cur adv vult. J
Postea (August 16).
1985 (4) SA p642
VIVIER J
[zJDz]Judgment
VIVIER J: This is an appeal against a judgment of ROSE INNES J refusing a mandament van spolie in
which the first appellant sought an order reinstating him in his possession of portion of a building
("the premises") situated at 148 Main Road, Sea Point, owned by the respondent. The first appellant
alleged B that he was the substituted tenant under a written agreement of lease which had been
concluded on 15 October 1981 between respondent and second appellant, represented by its sole
director, Jane Raphael, in terms whereof the premises were let to second appellant for a period of
five years, terminating on 19 January 1986, for the purpose of conducting thereon a restaurant
business known as the Newsfront Restaurant. First C appellant alleged that on 16 March 1984 he
was deprived of his peaceful and undisturbed possession of the premises by respondent. For
convenience I shall refer to first appellant as Ness and to second appellant as Raphael.
It appears from the correspondence before the Court that Ness commenced negotiations with
Raphael for the purchase of the D restaurant business at the beginning of February 1984. In terms
of clause 4 (a ) of Raphael's lease with respondent Raphael could not sublet, cede or assign the lease,
or part with possession of the premises without the respondent's prior written consent. In terms of
clause 4 (a ) any change in the shareholding of the lessee company was regarded as a change in E
lessee or a subletting for the purposes of that clause. In terms of clauses 27 and 28 of the lease
respondent, moreover, had a right of first refusal in the event of the lessee selling its business or its
shares. Ness claimed that respondent's written consent in terms of clause 4 (a ) of the lease was
given in two letters written by respondent's attorneys dated 6 February 1984 and 29 February 1984
respectively. Consequently, F on 3 March 1984, he concluded a written agreement with Raphael in
terms whereof he purchased the restaurant business for the amount of R45 000 subject to certain
conditions. On 5 March 1984 he took possession of the premises and remained in peaceful and
undisturbed possession thereof until 16 March G 1984. When he arrived at the premises that
morning he found that the lock on the front door had been replaced by another of which he did not
have the key and he thus could not gain access to the premises. He accordingly alleged that he was
unlawfully deprived of possession of the premises.
The respondent's case in the Court a quo was that while she admitted changing the lock on the front
door on 16 March 1984 H in order to prevent Ness entering the premises, she denied that Ness was
at any stage in peaceful and undisturbed possession of the premises. She alleged that he did not
have her consent to be on the premises and that he was a trespasser. She further alleged that she
was in any event entitled to resort to a counter-spoliation in order to recover her lost I possession. It
is necessary, accordingly, to refer in greater detail to the circumstances under which Ness claims
that he obtained possession of the premises on 5 March 1984 and the events which followed.
It is clear from the affidavits that at the time when Ness first approached Raphael about acquiring
the restaurant business, the lease between the latter and respondent had J become a tenuous one.
Raphael had failed to carry out certain alterations to the premises which she was
1985 (4) SA p643
VIVIER J
obliged to do in terms of the lease and had also failed to A obtain the necessary licence for
conducting the restaurant business. As a result respondent had instituted an action against Raphael
in the magistrate's court for an order declaring that the lease had been cancelled and an order
ejecting Raphael from the premises. This action was still pending. In a letter dated 3 February 1984
the City Engineer notified both respondent and Raphael that a recent inspection B had shown that
certain alterations to the premises were required and that the restaurant business would no longer
be permitted until such time as his requirements had been met. The letter concluded with a warning
that should trading be continued without the alterations having been effected it would constitute a
criminal offence. Raphael, however, continued to C trade regardlessly, and on 23 February 1984
respondent's attorneys notified Raphael's attorneys in writing that, as the City Engineer's
requirements had not been complied with, respondent had no option but to close the restaurant to
the public. Even then the restaurant was not closed. In the meantime, in a letter dated 21 February
1984, Raphael's D attorneys had made an offer to respondent to settle the pending litigation by
paying her the sum of R10 000 plus a further sum of R3 000 towards her costs on condition that the
restaurant business be sold to Ness and a new agreement of lease be concluded between Ness and
respondent.
Raphael's offer of R10 000 was amended in a letter dated 29 February 1984, in which her attorneys
stated that the previous E offer was based on the business fetching a purchase price of R70 000. As
the purchase price had since been reduced to R45 000, the offer of R10 000 was correspondingly
reduced to R5 000. Attached to this letter was a letter from Ness stating that his offer of R70 000 for
the restaurant business had been reduced to R45 000, the offer being conditional upon an F
agreement of lease being concluded between him and respondent. In a letter of the same date,
respondant's attorneys rejected the offer, stating that there would be no further negotiations but
that "our client's acceptance of Mr Ness to take over the remaining period of the lease on the terms
and conditions stipulated in the present lease still stands". The reference G here is to a previous
letter dated 6 February 1984 in which respondent's attorneys wrote to the attorneys acting for
Raphael that respondent was prepared to accept Ness as a tenant on the same terms and conditions
as those contained in the lease with Raphael and that, should Ness require a lease for an extended
period, he had to advise respondent what rental he was prepared to pay. Regarding these letters, I
agree with the H learned Judge a quo that they were not, and could not have been regarded by
either Ness or Raphael as a written consent for the purpose of a sublease or cession etc
comtemplated in clause 4 (c ) of the lease. Ness' offer, attached to the letter of 29 February 1984,
made it quite clear that what was contemplated was a new lease and not a cession or assignment of
I the existing lease.
There is a critical dispute of fact on the affidavits as to what happened after the aforesaid letters of
29 February 1984 were written. In his founding affidavit Ness states that respondent told him
verbally towards the end of February 1984 that he could take over the existing lease. He
consequently J settled the express terms of his agreement with Raphael,
1985 (4) SA p644
VIVIER J
A which were annexed to the attorney's letter of 29 February 1984, and, after receiving
respondent's consent contained in her attorney's letter of 29 February 1984, he concluded a written
agreement of sale with Raphael on 3 March 1984. A completely different picture emerges from
respondent's answering affidavit. She states that her attorney B telephonically advised her on 1
March 1984 that Ness wanted to meet her in order to discuss aspects of the intended lease as well
as certain building plans. Later that day Ness himself telephoned her and they arranged to meet at
16h30 on 2 March 1984. During their telephone conversation he expressed reservations about a
certain stairway required for the premises. Afterwards she discussed the matter with her son, C
Leon and, fearing that Ness, like Raphael, would be unwilling to effect alterations to the premises,
she decided to notify him that he was not acceptable as a tenant and to cancel her appointment
with him for the next day. In response to a message which she left for him, Ness telephoned her at
21h00 on 1 March 1984 and she then told him that she was no longer D prepared to accept him as
her tenant. Ness replied that he would communicate with her attorneys. Respondent's son, Leon,
who was present, corroborates the respondent's version of what she told Ness.
On 2 March 1984 the attorneys acting for Raphael wrote to respondent's attorneys, and after
expressing their dismay at E respondent's rejection of Raphael's previous offer of settlement, stated
that an agreement of sale had been signed between Ness and Raphael and that Ness would take
over the remaining period of the lease on the same terms and conditions as stipulated in the lease
with Raphael. Ness would immediately F take over the restaurant business and respondent's
attorneys were asked to "attend to the preparation of the necessary agreement of assignment of the
aforesaid lease". This letter did not state when the new agreement of sale was signed and the
statement that it had by then been signed was not correct because the agreement of sale relied
upon by Ness, and which is annexed to his founding affidavit, was in fact only signed by G Ness and
Raphael on 3 March 1984. It would appear that Ness and Raphael were now attempting to hold
respondent to the consent contained in the letters of 6 February 1984 and 29 February 1984, and
that for that reason, the letter of 2 March 1984 was silent as to when the agreement of sale was
signed.
In his founding affidavit Ness states that after he had H concluded the agreement of sale with
Raphael "and not before", respondent contacted him and informed him that she was withdrawing
her permission for him to take over the lease. He, however, made it clear to her that matters had by
then gone too far and that she was no longer entitled to withdraw her permission. It is difficult to
believe that Ness was unaware of I respondent's refusal to accept him as a tenant, quite apart from
what is stated by respondent and her son in their affidavits. On 6 March 1984 respondent's
attorneys wrote to Raphael's attorneys, recording that on 2 March 1984, after receiving their
aforesaid letter of that date to the effect that Ness had bought the business and was taking
occupation immediately, respondent's attorney had telephoned attorney J Lurie and told him that
respondent "does not accept the sale nor will she sign the lease". This allegation
1985 (4) SA p645

VIVIER J
is nowhere denied, so that it must be accepted that Raphael and A her attorney, at least, knew on 3
March 1984 that respondent was not prepared to have Ness as a tenant.
In view of the clear conflict of fact concerning what was said during the telephone discussion
between Ness and respondent on 1 March 1984, it must be accepted, for purposes of the present B
application, that on Monday 5 March 1984 when Ness alleges that he took occupation of the
premises, he could only have done so against respondent's express prohibition and as a trespasser.
Cf Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E - I.
As the learned Judge a quo points out in his judgment, Ness does not state in what manner he took
occupation of the C premises on 5 March 1984. On that day respondent put up a notice to the effect
that the premises were closed as a place of public entertainment on instructions from the City
Council. The next day respondent's attorneys wrote the abovementioned letter, confirming that
respondent had informed Ness on 1 March D 1984 that she would not accept him as a tenant and
that she did not recognise the sale and stating that respondent had a right of first refusal to
purchase the restaurant business in terms of clause 27 of the lease with Raphael. The letter
demanded that Raphael restore the position as it was prior to the sale of the business to Ness. A
copy of this letter was sent to Coulter and Co who were at that stage acting as E attorneys for Ness.
Respondent states in her answering affidavit that when the notice which she had put up did not
have the desired effect, she decided to physically close the premises and for that purpose she
employed a locksmith to change the lock on the front door. This was done on 7 March 1984. When
Ness arrived F that day he found the locksmith busy changing the lock. When Ness told her that she
had no right to change the lock she told him that she disputed his right to be on the premises and
that she did not accept him as a tenant. In his founding affidavit Ness also refers to this incident,
although he says it took place on or about 8 March 1984. Ness states that he removed the G
respondent's lock later the same day and replaced it with a temporary lock of his own, which he
changed the next day to a more suitable one.
On Friday 9 March 1984 respondent's attorneys wrote to Raphael's attorneys informing them that
respondent had heard that day that the City Council was issuing a criminal summons against her for
allowing the restaurant to continue trading, H listing various other breaches of the lease agreement,
cancelling the lease and calling upon Raphael to vacate the premises before Saturday 10 March
1985. A copy of this letter was sent to Ness' attorneys.
In the meantime Ness had, on 5 March 1984, written to the City Engineer informing the latter that
he was the new owner of the I Newsfront Restaurant, that he had that day taken out the necessary
trade licence and that he had been granted time to undertake the necessary alterations to the
premises in order to comply with the City Council's requirements. Ness engaged builders to effect
alterations to the premises. The respondent, who lives in a flat on top of the premises, states in her
answering affidavit that she heard builders working on the J premises on 12 March
1985 (4) SA p646
VIVIER J
A 1984 and again on 15 March 1984 (this should be 14 March, as will appear later). On 14 March
1984 she saw a man taking photographs of the premises and he told her that Ness had engaged him
to design a new sign board for the restaurant.
On 14 March 1984 respondent's attorneys wrote to Ness' B attorneys stating that despite the fact
that Ness did not have the respondent's consent to do so
"he apparently went ahead and entered into an agreement of some sort with Newsfront whereby he
is now trading from our client's premises".
Ness was called upon
"to vacate these premises failing which we shall have no C alternative but to approach the Supreme
Court for a necessary order in this regard as a matter of urgency".
On the same day Ness' attorneys wrote to respondent's attorneys stating that Ness' occupation of
the premises since 5 March 1984 was in accordance with an agreement concluded with D Raphael,
to which respondent had granted her consent and which consent she was not entitled to withdraw,
that respondent had on various occasions attempted to interfere with the exercise by Ness of his
rights as a tenant, and warning her not to take the law into her own hands but to take the necessary
action through the Court.
Respondent states in her answering affidavit that on 15 March E 1984 she again noticed builders
working on the premises. After unsuccessfully attempting to stop them, she telephoned the police
and laid a complaint of trespassing. The police arrived, and after discussing the matter with
respondent and Ness, the police asked him to leave the premises and hand over the keys F to the
premises, which he refused to do. His attitude was that he was the new owner of the restaurant
business and as such entitled to be on the premises. Respondent states that she then left in order to
make a statement to the police. When she returned to her flat at approximately 23h00 on 14 March
1984, the premises were closed and remained closed on 15 and 16 March G 1984. On 15 March
1984 a notice was placed on the door of the premises to the effect that the restaurant was closed
for operations until further notice. It is clear that the incident, when the police were called, took
place on 14 March 1984 and not on 15 March 1984 as respondent first stated. This is confirmed by
the affidavit of Ness' attorney, Anthony Murphy, H who states that he received a telephone call
from Ness at 2 pm on 14 March 1984 to the effect that the police had arrived at the premises. Later
that same afternoon Murphy went to the Sea Point charge office where he tried to persuade the
police not to interfere as the matter was a civil one. He was unsuccessful and was told by the police
that if Ness opened the restaurant I for business that evening the police would close it as Ness did
not have the necessary licence. Murphy went directly from the charge office to the premises and
advised Ness not to open the restaurant for business again until he had obtained the appropriate
licence.
Respondent states further in her answering affidavit that as it appeared to her that Ness was,
despite her protests to the J contrary, asserting that he was the owner of the business operated on
the premises, she had no
1985 (4) SA p647
VIVIER J
alternative but to change the lock on the front door to the A premises, which she did on Friday 16
March 1984. This resulted in the application for a spoliation order.
Thus far the facts of this case. The legal principles applicable to spoliation proceedings are well
known and have frequently been stated by our Courts. The underlying, fundamental principle of the
remedy is that no one is allowed B to take the law into his own hands and thereby cause a breach of
the peace. The remedy is aimed at every unlawful and involuntary loss of possession by any
possessor, and its object is no more than the restoration of the status quo ante as a preliminary to
any inquiry or investigation into the merits of the respective claims of the parties to the thing in
question. C See Nino Bonino v De Lange 1906 TS 120 at 122, Meyer v Glendinning 1939 CPD 84 (a
decision of the Full Bench of this Court), Nienaber v Stuckey 1946 AD 1049, Yeko v Qana 1973 (4) SA
735 (A) at 739 and Mbuku v Mdinwa 1982 (1) SA 219 (Tk) at 220 - 222.
According to the authorities, the applicant for a spoliation order must first of all establish that he
was in peaceful and D undisturbed possession of the thing in question at the time he was deprived
of possession. By the words "peaceful and undisturbed" is probably meant sufficiently stable or
durable possession for the law to take cognizance of it. See Professor A J van der Walt's article in
(1983) 102 SALJ 172 at 177. Two elements are essential for the possession which is protected against
spoliation, namely detentio (the physical holding of E and control over the thing) and animus (the
intention of securing some benefit for oneself). It is not essential for either of these elements for the
possession to be of the whole thing, or exclusive, or continuous or personal. See Bennett Pringle
(Pty) Ltd v Adelaide Municipality 1977 (1) SA 230 (E) at 233G - H. The justice or injustice of the
claimant's F possession is irrelevant. The appellant need not prove his right to possession, he need
merely prove factual possession. Thus VAN BLERK JA says in Yeko's case supra at 739F - G that
whether occupation was acquired secretly, or even fraudulently, is not the enquiry, and he refers to
Voet 21.2.16 to the effect that the injustice of the possession of the person despoiled is G irrelevant
as he is entitled to a spoliation order even if he is a thief or a robber.
When these principles are applied to the facts of the present case, Ness' possession, whatever its
cause, probably qualifies for protection by the remedy, subject to what is said below. At least at
some time during the period 5 March 1984 to 16 March 1984, he had the keys to the premises and
was physically H present on the premises. He traded on the premises for his own benefit. He
engaged a builder and a photographer with a view to effecting alterations to the premises and he
negotiated with the licensing authorities with a view to obtaining a licence for the restaurant
business. His holding of the property was clearly with the intention of securing some benefit for I
himself.
The question, however, is whether respondent was, on the principle of counter-spoliation entitled
on 16 March 1984 to recover her lost possession. In the case of Mans v Loxton Municipality and
Another 1948 (1) SA 966 (C) the plaintiff's sheep were found trespassing on municipal land and,
while being driven to the pound by municipal employees, were rescued by the J plaintiff who drove
them into his camp. Municipal
1985 (4) SA p648
VIVIER J
A employees opened the gate of plaintiff's camp, collected the sheep, drove them to the pound and
there impounded them. After a full review of the authorities dealing with the right of contra-
spoliation STEYN J concluded as follows at 977 - 978:
"From the authorities cited above, and more especially Savigny and Huber, it seems to me that the
principle of spoliatus ante B omnia restituendus est has been developed and become engrafted on
to our legal system so as to preserve peace in the community (see eg passage cited above from
Huber ). Breaches of the peace are punishable offences and to prevent potential breaches the law
enjoins the person who has been despoiled of his possession, even though he be the true owner
possession: he must first invoke the C aid of the law: if the recovery is instanter in the sense of being
placed his sheep in his lands, then the effort at recovery is, in my opinion, not done instanter or
forthwith but is a new act of spoliation which the law condemns.
D It may well be that a more liberal construction of instanter, forthwith, should be given to a true
owner exercising his right of recovery instanter, forthwith, when ejected from his possession, than
should be given to other classes of possessors - I express no opinion hereon - but it seems to me that
the first defendant's servants acted wrongfully in venturing on to plaintiff's lands after he had
queried their right to be in possession of his sheep."
E As appears from the passage quoted above, the Court in Mans' case held that once the plaintiff
had completed his rescue and placed the sheep in his camp, their recovery by the municipal
employees was not done instanter but constituted a new act of spoliation.
In De Beer v Firs Investments Ltd 1980 (3) SA 1087 (W) , where the question of counter-spoliation
also arose, COETZEE J said F at 1092F that there was much to be said for the above suggestion in
Mans' case that a more liberal construction of instanter should be given to a true owner exercising
his right of recovery of the property - particularly in a case where the applicant against the clearest
expression of the respondent's prohibition, deliberately takes the law in his own G hands. Van der
Merwe Sakereg says in this regard that the Court has a wide discretion to approve of an act of
counter-spoliation and to refuse to assist the original spoliator against the original possessor. He
puts it as follows at 93:
"'n Besitter mag enige persoon wat dreig om sy besit te versteur, weerstaan. Indien sy besit hom
reeds ontneem is, mag hy ook onmiddellik die verlore saak van die spoliator terugneem H voordat
die spolie heeltemal voltooi is, ooreenkomstig die beginsel van contra-spolie. Indien A en B in 'n
argument oor 'n motor wat in A se besit is betrokke raak en B die motor wegneem, mag A hom
agtervolg en die motor terugneem solank hy dit instanter as deel van die oorspronklike geskil doen.
Indien A eers na 'n tydsverloop sy besit terugwen, behoort 'n mandament van spolie in beginsel teen
A ingestel te kan word. Volgens sommige gemeenregtelike skrywers behoort besitsherstel in so 'n
geval nie teen A beveel te word indien B die saak nie I vir 'n geruime tyd besit het nie. 'n Wye
diskresie bestaan dus om contra-spolie goed te keur."
Lee and Honoré Family, Things and Succession 2nd ed (1983) by Erasmus, Van der Merwe and Van
Wyk at 252 para 267 is to the same effect. In De Beer v Firs Investments Ltd (supra ) the applicant for
a spoliation order had taken occupation of a certain shop against the will of the owner (respondent),
J brought some personal possessions into the shop, started painting the inside and installed three
extra safety locks on
1985 (4) SA p649
VIVIER J
A the doors. After he had left, the respondent's maintenance engineer again changed the locks so
that applicant could not enter the shop the next morning. COETZEE J held that the respondent's
conduct amounted to justifiable counter-spoliation. He pointed out in his judgment (at 1092C-D)
that the respondent could only occupy its own premises by putting in its own locks at a time when it
could be done without B involving a bout of fisticuffs or an assault, and that to insist that the
transaction was complete immediately after the applicant had installed his own locks so that any
further action on the part of respondent to obtain control over its property was a fresh spoliation,
was an unrealistic evaluation of the situation. The learned Judge puts it as follows at 1092B-C:
"All this seems to me to be part of the res gestae. It is really one C transaction consisting of
applicant taking occupation by installing locks and shortly thereafter removal of those locks and
installation of other locks on behalf of the owner. No appreciable time elapsed and it does not
appear to me to be a case where the applicant was so firmly ensconced in his possession as the
plaintiff was in the Mans case supra by the time that the second spoliation took place."
It is true that in the present case, a much longer time elapsed from D Ness' first occupation of the
premises until he was finally locked out by respondent. Can it be said, however, that, having entered
the premises on 5 March 1984 against the owner's explicit prohibition, having ignored the notice put
up by respondent that day, having replaced the lock installed by respondent's locksmith on 7 March
1984 to keep him out, all the time well knowing that he had no right to be on the E premises nor to
trade there, Ness had become so firmly established or ensconced in his possession that his spoliation
of the premises was complete? I think not. That would be, as COETZEE J said in De Beer's case, an
unrealistic evaluation of the situation. I think it is far more realistic to describe the situation existing
on the premises in the days F which followed Ness' first intrusion on 5 March 1984 as "one
indivisible transaction, in which the previous possessor defended his possession by force". See
Savigny's treaties on possession (Perry's translation) which is quoted in Mans' case at 976.
Respondent did not only use force, as is shown by the letter, written by her attorneys on 9 March
1984. In my view the tussle for possession of the premises commenced on 5 March 1984 G and
continued until 16 March 1984 when respondent finally succeeded in ousting Ness from the
premises. The events which followed after 5 March 1984 were all part of the res gestae of the
original act of spoliation and a continuation of the breach of peace committed by Ness on 5 March
1984. On the facts of the present case, therefore, I am of the view that H respondent's conduct of
16 March 1984 amounted to instanter recovery.
I am accordingly of the view that respondent's conduct constituted a justifiable counter-spoliation

and that the learned Judge a quo was for this reason correct in dismissing the application. The
appeal is I dismissed with costs.
Appellants' Attorneys: Coulter & Co. Respondent's Attorneys: Van Wyk & Barbour Inc. J
BANK VAN DIE ORANJE VRYSTAAT v ROSSOUW 1984 (2) SA 644 (C) B
Citation 1984 (2) SA 644 (C)
Court Kaapse Provinsiale Afdeling
Annotations
VOS R en WILLIAMSON R
1983 September 19 C
*Verhuur en huur - Huur van roerende goed - Spoliasie - Wat uitmaak - Paneelklopper, wat 'n
retensiereg het ten opsigte van herstelwerk verrig aan 'n verhuurde vragmotor ten behoewe van die
huurder, oorhandig vragmotor aan verhuurder - Verhuurder verkoop voertuig en stel eis in vir
verhaling van agterstallige paaiemente - Pleit deur huurder dat spoliasie plaasgevind het en dat aksie
oorgehou moet word totdat status ante quo herstel word - Geen spoliasie onder sulke
omstandighede waar huurder sy besit opgee en nie meer detentio het nie - Spoliasie-bevel in elk
geval nie bevoeg waar bona fide verkoop aan derde plaasgevind het nie - Verweer op appèl verwerp.
Die appellant, die eienaar van 'n vragmotor wat hy aan die respondent verhuur het, het die
vragmotor teruggeneem van 'n paneelklopper wat 'n retensiereg oor die voertuig verkry het weens
herstelwerk wat hy daaraan op versoek van die respondent verrig het. Die voertuig is later te goeder
trou deur die appellant aan 'n derde verkoop. In 'n aksie onder die huurooreenkoms vir die verhaling
van agterstallige paaiemente, het die respondent in die hof a quo suksesvol aangevoer dat spoliasie
plaasgevind het en dat die hof nie die aksie moes verhoor totdat die status ante quo herstel is nie.
Beslis, dat, aangesien die respondent die voertuig aan die paneelklopper vir herstelwerk oorhandig
het en gevolglik nie meer die nodige detentio gehad het nie, geen spoliasie teenoor die respondent
gepleeg kon gewees het nie; vir spoliasie om plaas te vind moes die veronregte persoon in besit
gewees het van die res.
Beslis, verder, dat, aangesien die voertuig bona fide deur die
appellant aan 'n derde verkoop is, 'n spoliasie-bevel in elk geval nie bevoeg sou gewees het nie.
Beslis, derhalwe, dat verweerder se verweer, wat in die vorm van 'n opskortende pleit was, nie
gehandhaaf kon word nie. Die saak is terugverwys na die landdros.
*Letting and hiring - Lease of movables - Spoliation - What constitutes - Panelbeater, who had a lien
in respect of repairs effected to a leased vehicle on behalf of the lessee, releasing vehicle to lessor -
Lessor selling such vehicle and instituting action for recovery of arrear instalments - Lessee pleading
that spoliation had occurred and action should be stayed pending restoration of status ante quo - No
spoliation under circumstances where lessee had parted with possession and no longer had detentio
- Spoliation order in any event not competent where bona fide sale to third party had taken place -
Defence rejected on appeal.
The appellant, the owner of a truck which it had leased to the respondent, had recovered the truck
from a panelbeater who had acquired a ius retentionis over the truck, having performed certain
repair work on it at the behest of the lessee. The vehicle was subsequently sold in good faith by
appellant to a third party. In an action for recovery of arrear instalments under the lease agreement,
the respondent successfully contended in the court a quo that spoliation had taken place and that
the court could not hear the action on the lease until the status ante quo had been restored.
1984 (2) SA p645
VOS R
Held, that, as the respondent had handed the vehicle to the panelbeater for repairs and therefore
did not have the necessary detentio, no spoliation could have taken place as against the respondent:
for spoliation to take place, the aggrieved person must have been in possession of the res.
Held, further, that, as the vehicle has been sold in good faith by the appellant to a third party, a
spoliation order would in any event not be competent.
Held, accordingly, that respondent's defence, which was of the nature of a dilatory plea, could not
be sustained. The matter remitted to the magistrate.
Appèl teen 'n beslissing in 'n landdroshof. Die feite blyk uit B die uitspraak.
A J Nelson namens die appellant.
J G Foxcroft namens die respondent.
[zJDz]Judgment
VOS R: In hierdie appèl sal ek na die partye verwys soos in die C hof a quo.
Die kerngedeelte van eiser se dagvaarding lui dat eiser en verweerder 'n huurooreenkoms
aangegaan het, waarvolgens eiser aan verweerder 'n sekere vragmotor verhuur en gelewer het; dat
dit 'n bepaling van die ooreenkoms was dat die eiendomsreg van die goedere in die eiser gevestig sal
bly; dat die verweerder D die huurooreenkoms verbreek het en agterstallig geraak het met sy
paaiemente en gevolglik was eiser in besit gestel van die voertuig deur verweerder en was daar nog
'n bedrag van R4 611,24 uitstaande en verskuldig aan eiser deur verweerder.
In sy pleit het verweerder ontken dat eiser geregtig was om die E vragmotor in sy besit terug te
neem sonder die toestemming of kennis van verweerder en het hy beweer dat die vragmotor sonder
die medewete van die verweerder deur die eiser verwyder en verkoop is.
In sy repliek het eiser ontken dat die voertuig uit verweerder se besit verwyder is en beweer dat die
betrokke voertuig vrywilliglik deur ene Lodewyk van Prima Bodyworks aan eiser F oorhandig is,
nadat eiser die bedrag van R280,80 aan Prima Bodyworks betaal het, wie te alle relevante tye 'n
retensiereg op die gemelde vragmotor uitgeoefen het vanweë verweerder se versuim om die kostes
van sekere herstelwerk te betaal. Eiser het ook beweer dat hy ten alle wesentlike tye tydens die G
her-inbesitname van die voertuig en die verkoop daarvan bona fide opgetree het.
Aan die aanvang van die verhoor het eiser se advokaat sy saak uiteengesit en onder meer gesê:
"Die daaglikse verloop van die huurkontrak het baie definitief geëindig in Mei 1978. Die voertuig is
uit die hande van 'n derde in Oktober 1978 geneem - lank na die afloop van die H daaglikse verloop
van die huurkontrak. So was
1984 (2) SA p646
VOS R
daar definitief nie spoliasie in terme van die huurkontrak gewees nie, en ek meen dat dit baie
duidelik sal blyk uit die getuienis wat ek gaan aanbied."
Verweerder se advokaat het aan die hof a quo gesê:

"Ons submissie is dat daar inderdaad spoliasie was. Ons het nooit toestemming gegee dat die
voertuig verwyder mag word nie."
A Op hierdie stadium het die hof aan eiser se advokaat gesê:
"So, uit die aard van die feitelike samestelling van die saak sal die hof dan eers al die getuienis moet
aanhoor en dan aan die einde van die getuienis natuurlik eerstens oor die kwessie van spoliasie
beslis en dan oor die meriete van die saak."
B Getuienis is toe deur die eiser aangebied. Ene De Villiers het getuig ten opsigte van die sluit van
die ooreenkoms; ene Cloete het getuig ten opsigte van herhaalde vergunnings wat deur die eiser aan
die verweerder verleen is en oor die omstandighede waaronder die voertuig weer in besit geneem
is, aanvanklik deur beslaglegging en waardasie en later toe die daadwerklike fisiese besit uit die
hande van die derde verkry is en die C retensiereg afgelos is; daar was ook getuienis deur ene
Gerber in verband met die stand van die eiser se rekening by die verweerder.
Aan die einde van die getuienis het eiser se advokaat die hof as volg meegedeel:
"Dit is die eiser se saak op spoliasie; daar is 'n moontlikheid dat ons 'n ander getuie sal roep wie se
getuienis irrelevant is D ten opsigte van die kwessie van spoliasie."
Verweerder se advokaat het die hof meegedeel:
"Ek het nie getuienis op die spoliasie-aspek nie."
Daarna het die twee advokate die hof by wyse van argument toegespreek.
E Toe het die hof uitspraak gegee. Die kerngedeeltes is as volg:
"Die eiser het getuienis aangevoer en daarna het die vraagstuk van spoliasie ter sprake gekom. Die
partye het die aangeleentheid van spoliasie nou breedvoerig betoog en die vraag is of die hof verder
op die meriete van die saak moet ingaan al dan nie. Mnr Nelson, wat vir die eiser verskyn het, het
aan die hof te kenne gegee dat sy hele saak aan die hof voorgelê is en mnr Veldhuizen het gesê dat
hy sy saak sluit, F soos ek hom verstaan het, oor die kwessie van spoliasie en het by implikasie gevra
dat die hof eers uitsluitsel moet gee of daar spoliasie gepleeg was al dan nie alvorens die saak verder
gevoer word."
Voorts het die landdros gesê:
"Indien dit bevind word dat spoliasie gepleeg is in enige saak, dan is dit 'n verpligting van die hof om
'n party wat hom aan sulke gedrag skuldig maak, sy regte te ontken of te ontsê... G Wat die huidige
saak betref, sal die hof bevind dat die verweerder op 'n stadium agterstallig geraak het met sy
paaiemente en dat die eiser in terme van 'n lex commissoria wat in die skriftelike ooreenkoms
beding was, kennis gegee het van kansellasie van die ooreenkoms... Daardie kansellasie,
kennisgewing, was wel gegee en die eiser het gevolglik die reg gehad om terug te tree uit die
ooreenkoms... Na kansellasie het hy beslag gelê op die betrokke voertuig wat verhuur was en H wat
in daardie stadium in die besit was van 'n paneelklopper wie dit gehou het namens die verweerder
om herstelwerk daaraan te doen en waaroor die paneelklopper 'n hipoteekreg uitgeoefen het... Die
eiser het die voertuig toe gaan verwyder uit die besit van die paneelklopper, weliswaar nie met
geweld nie, maar geweld is nie 'n vereiste alvorens spoliasie gepleeg kan word nie... "
Die landdros bevind dat daar 'n verkoping van hierdie voertuig plaasgevind het en, as ek hom reg
verstaan, is die afleiding dat dit bona fide geskied het.
Die landdros vervolg:
1984 (2) SA p647
VOS R
"Ek sou sê dat in hierdie geval die kontrak ook veronderstel dat die herinbesitname verkry moet
word deur 'n regsproses en selfs dat, indien dit nie deur regsproses verkry word nie, dit moet
geskied met die toestemming van die verweerder en dat die verkoop daarvan en die verkoopprys
daarvan ook met die toestemming van die verweerder bepaal moet word... Solank die voertuig in die
besit van die paneelklopper was vir die A herstelwerk en solank hy dit gehou het vir die uitoefening
van sy hipoteekreg, was die verweerder se regte nie daarin beëindig nie. Al reg wat die
paneelklopper gekry het, was 'n belang in die voertuig wat daarin bestaan het dat hy die detentio
van die voertuig verkry het en kon behou totdat daar betaling plaasgevind het vir die werk wat hy
aan die voertuig gedoen het. Enige oorskot van regte wat daar in die voertuig gevestig was, het die
verweerder toegekom... In die lig van hierdie B omstandighede is die hof van mening dat hier in dié
geval wel 'n spoliasie gepleeg was... Onder die omstandighede weier dié hof om verder getuienis oor
hierdie dispuut aan te hoor. Die voertuig is skynbaar van die hand gesit en restitusie kan nie deur die
hof gelas word in hierdie stadium nie, maar dit is by implikasie duidelik dat, indien die party wat hom
aan die onreg skuldig gemaak het, daardie goedere sou van die hand gesit het, hy klaarblyklik nie
deur die hof aangehoor sal word C nie sodat wanneer 'n hof nie kan teruggawe gelas nie, hy
eenvoudig net 'n dowe oor sal draai na so 'n party. Dit, dink ek, is die uitleg wat behoort gegee te
word aan hierdie leerstuk en in die lig daarvan is die vonnis van hierdie hof een van vonnis ten
gunste van die verweerder en die koste van die geding word aan die verweerder toegeken."
Eiser appelleer nou.
D Ek verskil van die landdros om die redes wat volg.
'n Belangrike feit in hierdie saak is dat die verweerder geen eis ingestel het vir besit of herbesit van
die voertuig nie. Op appèl het mnr Foxcroft die Hof daarop gewys dat die hof mero motu daardie
punt kan neem en dat die landdros blykbaar korrek was om dit te doen.
Ek wil net in hierdie stadium ook sê dat mnr Foxcroft 'n aansienlike hoeveelheid werk in hierdie saak
gedoen het en die E Hof is hom daarvoor dank verskuldig. Maar ongelukkig meen ek dat hy nie die
kernprobleme te bowe kan kom nie.
Soos ek verweerder se saak en die houding van sy advokaat in die hof a quo verstaan, is dit 'n soort
opskortende pleit of beswaar, naamlik dat die eiser se saak gestaak moet word totdat F die voertuig
aan die verweerder terugbesorg word. Dit is dan blykbaar ook die strekking van die landdros se
uitspraak. Op daardie basis moes die landdros nie vonnis ten gunste van verweerder gegee het nie,
maar 'n bevel dat die saak gestaak word totdat die voertuig in verweerder se besit teruggeplaas is.
Anders sou dit beteken dat eiser, weens 'n interlokutêre swakheid, sy saak op die meriete verloor.
Maar weens die mening G wat ek oor die saak huldig is hierdie aspek nie belangrik nie.
Na my mening is daar drie regsaspekte wat aandag vereis.
Die eerste is of ons reg voorsiening maak vir so 'n beswaar of opskortende pleit, sonder dat daar
herbesit gevra of gelas word. Die tweede is of daar hier hoegenaamd spoliasie H plaasgevind het. En
die derde is dat, indien spoliasie wel plaasgevind het, of die hof die eiser sou gelas om die goedere
terug te besorg in omstandighede waar hy dit bona fide aan 'n derde verkoop het.
Na my mening is dit onnodig om op die eerste punt uitsluitsel te gee, naamlik of die exceptio spolii
bestaan en of daar met verloop van jare maar één begrip bestaan, naamlik die exceptio spolii of die
actio spolii. Op dié punt is daar 'n geskil tussen die advokate se hoofde van
1984 (2) SA p648
VOS R
argument en mnr Foxcroft het sy geskil ook volledig, maar na my mening is dit onnodig om hierdie
aspek te besleg want dit maak weinig verskil in hierdie appèl.
Die tweede vraag is of die eiser inderdaad spoliasie gepleeg A het. Dit sal onthou word dat hy die
voertuig uit die besit van 'n derde verkry het nadat hy hom betaal het om sy retensiereg af te los. Na
my mening was die verweerder op daardie stadium nie in besit van die voertuig nie. Met ander
woorde, die nodige detentio het by die verweerder ontbreek.
B Voordat daar gesê kan word dat daar 'n spoliasie gepleeg is, moet die sogenaamde veronregte in
besit van die eiendom wees. Daar sou heel moontlik 'n spoliasie kon gepleeg gewees het teenoor die
paneelklopper, maar dit is 'n vraag wat hier nie ontstaan nie.
C In dié verband het mnr Foxcroft 'n tweeledige submissie gemaak, naamlik dat die verweerder in
besit was van hierdie voertuig deur die paneelklopper. Met ander woorde, die paneelklopper was sy
verteenwoordiger vir besit. Nou, ek verskil van hierdie submissie. Die paneelklopper het vir homself
besit en die verweerder het eintlik sy besit opgegee toe hy dit vir die paneelklopper oorhandig het.
D Die alternatiewe argument van mnr Foxcroft was dat daar 'n spoliasie van 'n reg kan plaasvind.
Nou, daar mag bepaalde omstandighede wees - ek gaan my nie daarop uitlaat nie - waar regte die
onderwerp kan wees van spoliasie, maar ek dink nie dit geld hier nie. Ek dink ek het genoeg gesê om
aan te dui dat die verweerder nie meer die nodige detentio gehad het vir E doeleindes van die instel
van 'n aksie of 'n exceptio spolii nie. Wat egter na my mening duidelik is, is dat terwyl die
paneelklopper in besit van die voertuig was, daar nie spoliasie teenoor die verweerder kon gepleeg
gewees het nie, want ex hypothesi was hy nie in besit nie. Soos ek gesê het, sy detentio het
ontbreek. Vergelyk in hierdie verband Shaw v F Hendry 1927 CPD 357. Soos wel bekend, is, bestaan
besit uit detentio plus animus en in hierdie geval is dit duidelik dat verweerder nie detentio gehad
het nie. Ek vind ondersteuning vir hierdie sienswyse in die skrywers waarna daar verwys is in
argument en ek kan hulle miskien net kortliks noem. Dit is Van der Linden Institutes of Holland
1.13.1, 2 en 3, asook dieselfde skrywer, Van der Linden (Morice se vertaling en G kommentaar 4de
uitg op 162 - 166); Lee Introduction to Roman-Dutch Law 4de uitg op 164 en 165; Wille Principles of
South African Law 1ste uitg op 143 - 145 en 7de uitg op 198 - 200; Lee en Honoré The South African
Law of Property 1ste uitg op 8 - 11. En vergelyk Price The Possessory Remedies in Roman-Dutch Law
op 55 - 56 en 71 et seq; asook Bennet Pringle H (Pty) Ltd v Adelaide Municipality 1977 (1) SA 230
(OK) op 233; Yeko v Qana 1973 (4) SA 735 (A) op 739D - E en Shaw v Hendry 1927 CPD 357.
Ek kom by die derde vraag. Die getuienis toon na my mening dat eiser die voertuig bona fide aan 'n
derde verkoop het. Weliswaar het mnr Foxcroft in sy argument gesê dat hy nie die aspek van bona
fides toegee nie, maar ek meen die korrekte opsomming van en afleiding uit die getuienis is dat dit
'n bona fide verkoping was. Derhalwe sou die Hof nie in hierdie omstandighede 'n spoliasiebevel
toestaan nie.
1984 (2) SA p649
VOS R
Hierdie beginsel blyk uit Jivan v National Housing Commission 1977 (3) SA 890 (W) op 895G - 896D
en die gesag waarna daar verwys word. In hierdie verband het mnr Foxcroft die Hof na verskillende
gewysdes verwys vir die argument dat laasgenoemde beslissing nie korrek is nie. Die argument was
dat in Burnham v A Neumeyer 1917 TPD 630 daar obiter gesê is dat in gepaste omstandighede daar
nie 'n teruggawe gelas word waar die eiendom bona fide in die besit van 'n derde gekom het nie. Ek
verskil. Ek meen dat daardie dicta wel rationes was. En ek meen ook met eerbied dat die redes wat
in die Jivan- saak gegee word B oortuigend en korrek is.
Die gevolg is dat die landdros nie hierdie bevel moes gemaak het nie. Gevolglik slaag die appèl met
koste en die landdros se bevel word tersyde gestel. Die saak word na hom terugverwys vir verdere
afhandeling.
C WILLIAMSON R het saamgestem.
Appellant se Prokureurs: Marais Müller. Respondent se Prokureurs: Claude Ipser & Davin.
1984 (2) SA p649

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DIANA FARM (PVT) LTD v MADONDO NO & ANOR 1998 (2) ZLR 410 (HC) A

Court High Court, Harare

16 & 28 October 1998 Judgment No. HH-188-98

Administration of estates - executor - requirement to deliver assets of estate to executor - duty C of

Practice and procedure - parties - representation - company - must be represented by legal

1998 (2) ZLR p411

Botha & Anor v Barrett 1996 (2) ZLR 73 (S) B

Davis v Davis 1990 (2) ZLR 136 (H)

Yeho v Qana 1973 (4) SA 735 (A)

Administration of Estates Act [Chapter 6:01], s 42

Legal Practitioners Act [Chapter 27:07], s 9(2)

M Shortgame, for the applicant

W Ncube, for the first respondent D

1998 (2) ZLR p412

1998 (2) ZLR p413

CONFIRMATION OF PROVISIONAL ORDER

1998 (2) ZLR p414

1998 (2) ZLR p415

1998 (2) ZLR p416

At p 211C-D, he went on to say: E

1998 (2) ZLR p417

1998 (2) ZLR p418

1. The provisional order granted to the applicant is discharged with costs;

2. An order in terms of the draft order annexed to the counter-application is granted.

Karuwa & Associates, applicant's E legal practitioners

Kantor & Immerman, respondent's legal practitioners

1999 (2) ZLR p19

Case No Judgment No. S-77-99

Court Supreme Court, Harare

Judge McNally JA, Muchechetere JA, Sandura JA B

Heard July 1, 1999

Judgment July 9, 1999

Counsel R Y Phillips, for the appellant

P Nherere, for the respondent

Beukes v Crous 1975 (4) SA 215 (NC)

Botha & Anor v Barrett 1996 (2) ZLR 73 (S)

Naidoo v Moodley 1982 (3) SA 82 (T)

Sebastian & Ors v Malelane Irrigation Bd 1950 (2) SA 690 (T)

1999 (2) ZLR p20

R Y Phillips, for the appellant A

P Nherere, for the respondent

1999 (2) ZLR p21

INTERIM RELIEF GRANTED C

(a) he was in peaceful and undisturbed possession of the thing; and F

(b) he was unlawfully deprived of such possession.

The only valid defences that may be raised are that:

(c) restoration of possession is impossible;

1999 (2) ZLR p22

See Joubert op cit supra para 79. A

1999 (2) ZLR p23

As Thirion J said at 190G-H in Zulu supra:

The appeal is dismissed with costs. D

Muchechetere JA: I agree.

Sandura JA: I agree. E

Dube Manikai & Hwacha, appellant's legal practitioners

Stumbles & Rowe, respondents' legal practitioners

POTGIETER EN 'N ANDER v DAVEL 1966 (3) SA 555 (O)

Citation 1966 (3) SA 555 (O)

Court Oranje-Vrystaat Provinsiale Afdeling

1966. Mei 28; Junie 9.

1966 (3) SA p556

Cur. adv. vult.

Postea (Junie 9).

1966 (3) SA p557