REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case Number: A05 / 2024
In the matter between
BEBA ANDRIC Appellant
(Respondent a quo)
and
HEIN FOURIE Respondent
(Applicant a quo)
Coram: Wille, J et Pangarker, AJ
Heard: 15 March 2024
Further Note: 22 March 2024
Delivered: 27 March 2024
JUDGMENT
THE COURT:
Introduction
[1] This is an appeal from the lower court at the instance of the respondent a quo.
We will refer to the parties as they were cited in the lower court. This is for clarity
2
and a better understanding of why the relief was granted in the lower court to benefit
the applicant.1
[2] The court of first instance issued an interim order with some of the following
wording: (a) that the matter is categorized as a matter of urgency; (b) that the
respondent was directed to immediately restore to the applicant his property, which
was stored at the respondent’s premises, and (c) that the respondent was interdicted
from unlawfully dispossessing the applicant of his possessions.2
[3] A rule nisi called on the respondent to show cause why a final order should not
be granted, together with costs. The restoration order and the restraining orders
were issued with immediate effect, pending the return date. The respondent was
also afforded the customary leave to anticipate the return date on notice. All costs
were held over for later determination.3
Context
[4] The applicant is a builder who, among other things, renovates houses. The
respondent employed the applicant to do some renovations to her house. Initially, a
verbal agreement was reached between these parties. The applicant agreed to
renovate the wooden floors in the respondent’s home. This all seemed amicable,
which is often the position at the beginning of a renovation project.4
[5] In anticipation of the project, the applicant gave the respondent a written
quotation, which the respondent accepted, and she paid the requisite deposit. The
applicant commenced with the project. He started to repair the wooden floors as
these floors (according to him) had suffered some water damage in the past. The
applicant told the respondent that the renovation would be somewhat delayed
because of the alleged water damage to the flooring in her house.5
[6] The applicant also explained that he was engaged with another project, which
took longer than anticipated. According to him, he was then given a further
extension to complete the respondent’s renovation project.6
1 An interim “mandamus van spolie” order was granted to the applicant in the lower court.
2 The applicant was restored to the possession of his tools of trade.
3 The costs of the “ex parte” application stood over for later determination.
4 It seemed to be an amicable arrangement when the renovation project commenced.
5 The applicant started the project on 5 July 2023.
6 The applicant was given an extension to 22 August 2023 to complete the renovation project.
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[7] Two days after the applicant was granted the alleged extension regarding the
revised timeline to complete the renovation project, the respondent refused the
applicant and his staff entry into her premises. The respondent also took possession
of the applicant’s tools of trade, which he had temporarily housed in the respondent’s
premises.7
[8] The respondent advised the applicant that she would retain his tools of trade as
the renovation project had not been done according to the agreement struck with her
and needed to be completed. The applicant averred urgency because the
respondent had unlawfully retained the tools of his trade, and he could not perform
any further work at all. The applicant launched an urgent spoliation application, and
an interim order was granted in his favour.8
[9] The respondent opposed the granting of a final order on the return date. In
essence, the respondent denied the extension agreement and averred that she had
cancelled the agreement with the applicant through a formal letter from her lawyer.
The respondent contended for a contract lien in support of her unilateral retention of
the applicant’s tools of trade.9
[10] In the interim, the respondent also pointed out that she issued a summons out
of the Mossel Bay Magistrates’ Court against the applicant for damages for poor
workmanship and non-completion of the renovation project. This damages action
does not include the lien retention contractual claim for damages. The applicant did
not participate in the appeal hearing. This led to a further complication of one issue
we could have considered on appeal. However, some current information that the
respondent’s counsel sought to put before us on appeal was not part and parcel of
the appeal record, and no agreement on these submissions could be reached in the
absence of the applicant. Thus, we ignored this information.10
Consideration
[11] The applicant used his tools of trade before the respondent dispossessed him
of the right to use his tools of trade. The issues to consider are ‘possession and
7 These are the goods which formed the subject of the spoliation application by the applicant.
8 The applicant clearly made out a case for the unlawful spoliation of his tools of trade.
9 This is in circumstances where the respondent contends for a cancellation of the contract.
10 The information was in connection with the practical effect of the appeal.
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‘quasi-possession’ for a spoliation claim. Our jurisprudence also has a history of
protecting quasi-possession by way of spoliation. It is a truism that a spoliation claim
cannot enforce the specific fulfilment of quasi-possession. The use that triggers this
remedy arises from the close connection between the ‘use’ and the ‘possession’ or
‘quasi-possession’ of a thing.11
[12] A close -connected quasi -possessory right is a legal concept that recognizes
certain rights and protections for individuals concerning property. It is a term often
used in legal discussions and cases where someone has been using a property for a
significant period, and their relationship with it has developed beyond a transient or
temporary arrangement.12
[13] Recognizing a closely connected quasi -possessory right can include the ability
to continue using the property and thus the protection against eviction. A closely
connected quasi-possessory right acknowledges that persons who have established
a long-term connection to a property should be afforded some legal recognition and
protection. This recognition varies depending on the specific circumstances of each
case.13
[14] Two allegations must be made to succeed with a spoliation remedy: (a) that the
claimant was in peaceful and undisturbed possession and (b) that the respondent
unlawfully deprived the claimant of that possession. This remedy is a remedy to
protect from self-help. The applicant temporarily left his tools of trade on the
respondent’s premises while completing the renovation project. This is undoubtedly
incidental to the applicant's possession and/or quasi-possession of his tools of trade.
Put another way, there is no evidence to suggest that the applicant abandoned any
of his rights in and to the property he left at the respondent’s premises.14
[15] In other words, since the exercise of the right is so closely connected with the
thing, the loss of the right is tantamount to an interference with the possession of the
thing itself, and thus, the possession of the alleged right lies in the use of the right.
By way of illustration, reference may be made to recent case law, which is very
helpful. This case concerned the use of a telephone. The parties were involved in
11 Shoprite Checkers Ltd v Pangbourne Properties Ltd 1994 (1) SA 616 (W).
12 The applicant clearly intended to go back to the respondent’s premises to conclude the project.
13 The applicant's facts are good, and the respondent’s facts are not good.
14 The amended terms of the contract support the applicant’s facts.
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divorce proceedings. The husband removed the telephone from the matrimonial
home. The court ruled that access to the telephone was incidental to the use of the
marital home and ordered the return of the telephone through a spoliation order.15
[16] This case was about the applicant's use (and historical use) of his tools of trade
to earn his living as a builder. This right was historic. It was critical to his business,
and without this right, the applicant’s possession of his tools of trade would have
been significantly disrupted. The respondent (in these circumstances) could not
legally contend (as she does) that she was the lawful possessor of the applicant’s
tools of trade based on her alleged contractual lien.16
[17] We also say this because spoliation is a remedy to restore the status quo ante.
It emphasizes that it is a robust and extraordinary remedy where the court has
limited discretion once the conditions are met. In this case, the distinguishing feature
illustrates that the object of the right arises from the use of the tools of trade by the
applicant, which was crucial to him. Without this right, the applicant’s business
would be significantly disrupted.17
[18] It was previously held that the only occasion an applicant could obtain a
spoliation order was if the applicant could show force or stealth in the deprivation of
the possession suffered. It is generally accepted (and rightfully so) that any wrongful
deprivation, including by force or stealth, now suffices. Wrongful deprivation now
means deprivation against the person's will without legal process and taking the law
into one’s own hands. Most importantly, whether the respondent had a stronger right
or claim to possess the applicant’s tools of trade in these peculiar circumstances is
entirely irrelevant.18
[19] There were a limited number of shields available that the respondent could
have raised in these spoliation proceedings. These were (a) a denial, (b) restoration
being impossible, and (c) a counter-spoliation. The respondent raised none of these.
The applicant confirmed that he placed his tools on the respondent’s property for the
specific purpose of the renovation project. The respondent admitted that she
refused to return the applicant’s tools, albeit that she misconceived the existence of
15 Du Randt v Du Randt 1995 (1) SA 501 (O).
16 Makeshift 1190 (Pty) Ltd v Cilliers 2020 (5) SA 538 (WCC).
17 The right to possession consisted in the use of the tools of trade by the applicant.
18 Yeko v Qana 1973 (4) AS 735 (A).
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a contractual lien justifying her actions in the particular circumstances of the matter .
He left his tools of trade there at the end of the day’s work as a matter of
convenience.19
[20] During the hearing, the respondent’s counsel conceded that the arguments for
the benefit of a contractual lien (or any lien) in favour of the respondent were without
merit. This must be so as the basis for the alleged contractual lien against the
applicant is challenging to discern in circumstances where the contract was
cancelled at the instance of the respondent. Further, no enrichment lien or repairer
lien can be present to the benefit of the respondent in these circumstances.20
[21] The respondent focused on the issue of the applicant's need for possession
(or lack thereof) of his tools of trade. The respondent argued that she was always in
control of her home where the renovation project was being carried out, and thus,
she possessed the applicant’s tools of trade during this time. The respondent relied
almost entirely on some recent jurisprudence supporting her arguments about
possession and access.21
[22] The facts of the case relied upon bear scrutiny. They were entirely different
from the facts of this matter . In the former matter, the respondent entered into a
lease agreement with one of the applicants. The lease agreement was breached,
and the respondent attempted to evict the applicant from his property. He became
frustrated with the eviction process and indulged in self -help by re-taking possession
of his property. The applicants applied for a mandamus remedy and were correctly
granted this relief. One of the issues that was engaged with was the issue of access
as opposed to the issue of possession.22
[23] The spo liation remedy is available to any despoiled person who exercises
physical control over the property to derive some benefit from it. Possession suffices
if the holding is to secure some benefit. In this case, the possession by the applicant
was undoubtedly for some benefit to him. Moreover, the applicant demonstrat ed
19 The applicant always intended to return to complete the renovation project.
20 The respondent did not contend for an enrichment lien or a repairer lien.
21 Sokanyile and Others v Broad and Another (12525/2022) [2022] ZAWCHC 156 (24 August 2022).
22 It was emphasized that the right to ownership is discrete from the possession for the mandamus remedy.
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effective physical control over his property.23
[24] In some useful, although somewhat dated, practical jurisprudence, the
applicant was a builder and alleged that he had possession due to a builder's lien.
He needed help completing specific plumbing work and gave over the key he held to
enable another plumber to access the property . A plumber and the respondent's
father were then given access to the property. Under these circumstances, it was
correctly held that no possession was established.24
[25] Issues of access and possession have also attracted attention in matters
involving gated estates. The findings indicated below are helpful, namely:
‘…It must be recalled that the real purpose of the “mandament” was to prevent
breaches of the peace. If someone is in exclusive possession and exercises
such possession, then deprivation thereof can, and often does, lead to a breach
of the peace. No such breach would in the ordinary course of events take place
where a large number of persons have access, rather than possession, of the
property in question…’ 25
[26] Thus, in this case, the respondent could not have seriously contended that the
applicant was never in physical possession or quasi -possession (or lost possession)
of his tools of the trade to complete the renovation project . Further, factually , the
applicant only laid claim to being entitled to undisturbed possession. Undoubtedly,
this was premised on his reciprocal obligation to complete the renovation project on
the respondent’s premises . There was no evidence on the papers to suggest that
the applicant had at any time abandoned the possession of his tools of the trade.
This is precisely why the respondent initially attempted to rely on some contractual
lien (which has now been abandoned) over the applicant’s tools of trade.26
[27] Finally, the respondent contended that the applicant should have pursued the
remedy for returning his tools of trade through the rei vindicatio rather than the
mandamus remedy. This remedy, however, involves an action in rem. To be
successful in rem the applicant would have to have pleaded that the respondent was
23 Yeko v Qana 1973 (4) SA 735 (A) at 739 H - 740 A.
24 Shaw v Hendry, 1927 CPD 357
25 De Beer v Zimbali Estate Management Association (Pty) Ltd and Another 2007 (3) SA 254 at para [54]
26 The respondent, on her own version, indulged in self-help in the circumstances.
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in possession of his goods. The respondent was not in possession. The entire case
by the applicant was that he was in possession of his tools of trade.27
Costs
[28] The spoliation remedy is robust and exceptional if the conditions are met. Even
though some rights cannot be ‘possessed’ in the ordinary sense of the word, they
can give rise to rights equivalent to spoliation in cases of so-called quasi-possession.
The deprivation of possession was undisputed in that the respondent deprived the
applicant of using his tools of trade. The costs followed the outcome because the
respondent behaved unlawfully despite actively and continuously engaging in
litigation to claim damages from the applicant.28
[29] The applicant (the respondent in the appeal) elected not to participate in this
appeal because (as we understand it) he needed to possess the financial resources
to oppose it. Nevertheless, the applicant must have incurred some costs in
connection with the appeal, and it would be appropriate to compensate him for the
actual costs he has incurred. This is ultimately an issue for agreement or taxation.29
[30] For all these reasons, the following order is granted:
1. The appeal is dismissed.
2. The appellant (respondent a quo ) shall be liable for the costs of the appeal
(on the scale between party and party) as taxed or agreed.
WILLE, J
PANGARKER, A J
27 Chetty v Naidoo 1974 (3) SA 13 (A).
28 The respondent simple took the law into her own hands pending the litigation process outcome.
29 The Taxing Master of the High Court will be in a position to determine the extent of these costs.