THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 815/2016
In the matter between:
ABRAHAM PAULUS BISSCHOFF FIRST APPELLANT
ABRAHAM PAULUS BISSCHOFF SECOND APPELLANT
(in his capacity as representative of the
Trustees of the Paul Bisschoff Trust)
RIETVLUG LANDGOED (PTY) LTD) THIRD APPELLANT
DAVID EDUARD BISSCHOFF FOURTH APPELLANT
DAVID EDUARD BISSCHOFF FIFTH APPELLANT
(in his capacity as representative of the
Trustees of the David Bisschoff Trust)
and
WELBEPLAN BOERDERY (PTY) LTD RESPONDENT
Neutral citation: Bisschoff & Others v Welbeplan Boerdery (Pty) Ltd (Case No.
815/2016) [2021] ZASCA 81 (15 June 2021)
Coram: WALLIS, DAMBUZA, SCHIPPERS and DLODL O J JA and
MABINDLA-BOQWANA AJA
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Heard: 19 May 2021
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by email. It has been published on the
website of the Supreme Court of Appeal and released to SAFLII. The
date and time for hand-down is deemed to be 10h00 on 15 June
2021.
Summary: Property Law – Mandament van spolie – termination of permission to enter
upon leased land – in letter cancelling agreements – not unlawful deprivation of
possession – does not amount to spoliation.
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______________________________________________________________________
ORDER
______________________________________________________________________
On appeal from: North West Division of the High Court, Mahikeng (Kgoele J sitting as
court of first instance):
1 The appeal is upheld with costs.
2. The order of the court a quo is set aside and replaced with the following order:
‘The application is dismissed with costs.’
______________________________________________________________________
JUDGMENT
______________________________________________________________________
Dlodlo JA: (Wallis, Dambuza and Schippers JJA and Mabindla-Boqwana AJA)
[1] The appellants own a number of farms in the North West Province , utilised
collectively for the production of maize and sunflower. In 2015 they concluded a number
of agreements with the Welbeplan Boerdery (Pty) Ltd represented by Mr Gerhard Olivier,
in terms of which the y sold some 14 portions of the farms to the company . Each
agreement was subject to a suspensive condition that the respondent obtain financ e to
pay the purchase price. The parties agreed that in the event of the suspensive condition
not being fulfilled within the period stipulated in the agreements, those agreements would
be regarded as contracts of lease for one season, ie 12 months. In the interim the
respondent was granted access to the farms for the purpose of cultivating certain portions
of the land.
[2] The suspensive condition was not fulfilled because the respondent failed to obtain
the necessary finance . The sale agreements were therefore regarded as lease
agreements, each for periods of 12 months. Subsequently the respondent breached the
lease agreements. The appellants’ attorneys sent two letters , both dated 1 February
2016, to the respondent’s attorneys in which they were informed that all agreements
between the parties had been cancelled and that the respondent should not trespass
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upon the land (the letters). Based solely on what was stated in the letters, the respondent
obtained a spoliation order as a matter of urgency together with costs in North West High
Court, Mahikeng ( the high court). The high court refused leave to appeal, which was
granted by this Court.
[3] Before addressing the question whether the respondent had made out a case for
a spoliation order, it is neces sary to briefly deal with a contention by its counsel that the
order sought by the appellants would have no practical effect within the meaning of
s 16(2)(a) of the Superior Courts Act 10 of 2013 .1 We were informed that after the
spoliation order had been issued, the respondent ’s sole director and deponent, Mr
Gerhard Olivier, did not return to the land ; that he had no intention of doing so ; and that
the respondent’s right of possession was the subject of ongoing litigation. It was therefore
submitted that the appeal was moot and concerned only costs – the appeal would have
no practical result and the appellants were seeking to avoid payment of the costs order
which the high court had granted against them.
[4] These submissions are however unsound. The spoliation order issued by the high
court remains extant and there is nothing preventing the respondent from enforcing it,
should it so wish. Secondly, the appellant’s case is that the high court’s judgment is wrong
in principle and unless the appeal is heard, it would remain as an authoritative, binding
precedent in that province . The appellant’s criticism of the high court’s judgment, more
specifically that a letter of demand instructing a possessor of land not to return to it does
not constitute an act of spolia tion, must therefore be addressed. In this regard it is
noteworthy that in Three Musketeers Properties,2 a case similar to the present one, the
Supreme Court of Namibia has held that a threat embodied in a letter to disturb
possession, does not constitute an act of spoliation.
possession, does not constitute an act of spoliation.
1 Section 16(2)(a) provides:
'When at the hearing of an appeal the issues are of such a nature that the decision sought will have no
practical effect or result, the appeal may be dismissed on this ground alone'.
2The Three Musketeers Properties (Pty) Ltd and Another v Ongopolo Mining and Processing Ltd and Others
[2008] NASC 15.
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[5] Turning then to the merits of the appeal. The requirements for the mandament van
spolie are trite: (a) peaceful and undisturbed possession of a thing; and (b) unlawful
deprivation of such possession.3 The mandament van spolie is rooted in the rule of law
and its main purpose is to preserve public order by preventing persons from taking the
law into their own hands.4
[6] It was common cause that when the letters were written the respondent was in
possession of various portions of the land and that crops had been cultivated on them.
Thus, the only issue in this appeal is whether the respondent was unlawfully deprived of
its possession of the land. The mandament van spolie is a possessory remedy, aimed at
the restoration (return) of possession where a party is unlawfully deprived of its prior
peaceful and undisturbed possession of property.5 What constitutes spoliation or unlawful
possession must be determined on the facts.6
[7] Where the conduct complained of merely constitutes threatened deprivation of
possession, the mandament van spolie is not available as a remedy because it is aimed
at the actual loss of possession. 7 The remedy for a mere threat of spoliation is a
prohibitory interdict .8 For a spoliation order there must be unlawful spoliation, ie a
disturbance of possession without the consent and against the will of the possessor. 9 A
minimum threshold or degree of actual physic al interference or deceit sufficiently grave
to qualify as effective deprivation of possession is required. The deprivation requirement
3 Yeko v Qana 1973 (4) SA 735 (A) at 739E-F. See also Lawsa (2 ed 2014) at 113 para 108.
4 Tswelopele Non-Profit Organisation and Others v City of Tshwane Metropolitan Municipality and Others
[2007] ZASCA 70; 2007 (6) SA 511 (SCA) para 22; Ngqukumba v Minister of Safety and Security and
Others [2014] ZACC 14; 2014 (7) BCLR 788 (CC); 2014 (5) SA 112 (CC); 2014 (2) SAC R 325 (CC) paras
10-12.
10-12.
5 Yeko v Qana fn 3 at 739E.
6 G Miller, R Brits, JM Pienaar and Z Boggenpoel Silberberg and Schoeman’s The Law of Property (6 ed
2019 at 345.
7 Abbott v Von Theleman 1997 (2) SA 847 (C) at 852 H-I; Minister of Land Affairs v Gqiba and Another
(Case No 847/2006) 2008 [ZAECHC] 176 (21 October 2008), para 13.
8 Abbott v Von Theleman 1997 (2) SA 847 (C) at 852; Outdoor Network Limited; Autumn Storm Investments
362 (Pty) Limited v PRASA; Intersite Asset Investment (Pty) Limited unreported judgment in the Gauteng
Local Division, Johannesburg, case number 2013/26064 handed down on 30 May 2014, para 12;
9 See Lawsa op cit fn 3 at 114 para 108 and the authorities collected in fn 17.
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of the mandament van spolie entails that the disturbance must be substantial enough to
effectively end or frustrate the complainant’s control over the property.10
[8] The respondent’s case was that a statement in the letters that it would not be
allowed access to the land, had ‘deprived Applicant of [its] possession’ and that the
appellants had ‘taken possession of the pr operty’. Mr Olivier said that neither he , the
manager of farming operations nor his labourers were as a result of the letters, allowed
access to the land and that he was convinced that if they entered upon the land, the
appellants would not hesitate to rem ove them and charge them with trespassing.
(1/14/12-14).
[9] The relevant paragraphs of the letters upon which the respondent relied read as
follows:
’Ons kanselleer dus alle ooreenkomste met u kliënt en bevestig dat ons namens ons kliënt u kliënt
hiermee aansê om nie ons kliënt se eiendom te betree nie maar enige onderhandelinge via ons
kantoor te doen.’11
and
‘Ons bevestig dat u kliënt hiermee aangesê word om nie die plaas van ons kliënte enigsins te
betree nie by versuim waarvan ons ‘n dringende aansoek in die Hooggeregshof sal doen om u te
verbied.’12
[10] The high court rejected the appellants’ defence that there was no spoliation. The
appellants contended that the letters constituted demands by lawful means. Mr Olivier of
his own accord had complied with th ose demands and left the property. The threat to
approach the court for relief in the event of trespass was a far cry from the appellants
taking the law into their own hands. However, the court concluded that the appellants’ act
10 Minister of Land Affairs v Gqiba fn 7 pars 13 and 15; AJ van der Walt and GJ Pienaar Introduction to the
Law of Property (7 ed 2016) at 232.
11 My translation:
‘We therefore cancel all agreements with your client and confirm that we, on behalf of our client, hereby
instruct your client not to trespass upon our client's property, but to conduct any negotiations via our office.’
12 ‘We confirm that your client is hereby instructed not to trespass upon our client's property in any way ,
failing which we will launch an urgent application in the Supreme Court to restrain [him].
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in ‘writing the . . . letters to the applicant telling him not to enter the premises amounts to
dispossession’. The judge went on to say:
‘[A]lthough a lock was not put in the physical sense, the words used prevented the applicant
access to the property by withdrawing/removing the consent it had been enjoying and this equals
to putting a lock at the gate physically. Both actions amount to denial of access.’
[11] As to the defence that the appellants had not resorted to self-help, the judge said:
‘On a proper analysis of the letters it i s evident that they are not letters of demand as the
respondents submitted. They are couched in a form of an interdict instead. The words used
therein are too strong and unequivocal to the effect that the applicant should not enter the
premises.’
Then, after referring to the content of the letters quoted in paragraph 9 above, the judge
said this:
‘The contents of these paragraphs reveal that the letter prohibited the applicant from entering for
whatever reasons and threatened . . . to take him to court to stop him if he fails to do that. This
action amounts to preventing the applicant to exercise control or put differently, its control is
effectively destroyed. In my view, although written by their legal representatives, this amounts to
self-help.’
[12] The high court erred. The mere use of ‘strong and unequivocal’ words in a letter
that a person should not trespass upon land, does not constitute deprivation , let alone
unlawful deprivation, of possession of th e land. And the appellants’ statement that they
would approach the high court for relief if the respondent did not comply with the
instruction not to trespass upon the land, was the clearest indication that they did not take
the law into their own hands and had no intention of doing so. The letters must be read in
context. By instructing their attorneys to write to the respondent, the appellants did no
context. By instructing their attorneys to write to the respondent, the appellants did no
more than exercise their contractual rights of cancelling the lease agreements. One of the
consequences of cancellation, as the appellants saw it, was that the respondent was not
entitled to remain in possession of the property.
[13] The first letter annexed to the founding affidavit, written on behalf of the fourth and
fifth appellants, stated that all agreements were being cancelled (specifically the lease
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agreements that came into existence when the suspensive condition in the sale
agreements had not been fulfilled) on account of various misrepresentations by the
respondent through Mr Olivier that they qualified for finance to purchase the relevant
farms. He was instructed not to trespass on the land and that any negotiations had to be
done via the appellants’ attorneys. The respondent was thus entitled to take up the matter
with the appellants’ attorneys: the letter did not deprive it of possession of the la nd and
could not be construed as tantamount ‘to putting a lock at the gate physically’.
[14] In terms of the second letter on behalf of the first to third appellants, the relevant
lease agreement was cancelled also on the ground that the respondent and Mr Olivier
had made various misrepresentations concerning the respondent’s ability to obtain
finance. The letter further stated that Mr Olivier had made virtually no input in the planting
of crops which other persons had done as a result of his misrepresentations; and that he
had not arranged for a debit order to pay the appellants’ electricity accounts, despite his
assurance that he had done so. As stated, Mr Olivier was instructed not to trespass on
the land, failing which the appellants would approach the court to prohibit him from doing
so, which was perfectly legitimate. That there is a link between the two letters is clear.
They were drafted by the same attorney, Mr Frikkie Pretorius ; the factual background to
and reasons for the cancellation of the relevant lease agreements referred to in the letters
were essentially the same ; and it can thus safely be accepted that Mr Pretorius would
have approached the court for relief in the event of trespass on behalf of both sets of
clients.
[15] The threat to approach a court for relief in the exercise of a contractual right, as in
this case, could never constitute unlawful deprivation of the respondent’s control of the
this case, could never constitute unlawful deprivation of the respondent’s control of the
land, nor self-help. The essence of the mandament van spolie is the maxim spoliatus ante
omnia restituendus est: the person deprived of possession must first be restored to its
former position before the merits of the case can be considered. 13 And where there has
13 Lawsa op cit fn 3 at 97 para 93; Nienaber v Stuckey 1946 AD 1049 at 1053; Tswelopele fn 7 para 21;
Ngqukumba fn 7 para 10.
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been no unlawful deprivation of possession, there is nothing to restore and the maxim
cannot apply.
[16] The decision in The Three Musketeers Properties14 is therefore not surprising. The
first appellant was the owner of a farm in Tsumeb, Namibia. The respondent held a mining
licence over a portion of the farm. A letter by the respondent dated 28 August 2006 to the
appellant informing it that the respondent intended to commence mining operations in an
area known as the fenced off Tschudi Mining Area, in respect of which the appellant had
possession and control, stated inter alia the following:
‘The mine area and buildings, which I understand are being used (unofficially) by Uris Lodge, will
be immediately vacated, and secured by Rubicon [a security company engaged by the
respondents].’
[17] The appellant contended that the court a quo ha d erred when it found that the
appellant had not been ‘dispossessed of its free peaceful and undisturbed possession’ of
the fenced off mining area, in respect of which it had exclusive control and possession.
This possession, so it was contended, ‘was unlawfully disturbed by the letter’.
[18] Mtambanengwe AJA, writing for a unanimous court, rejected this contention. He
said:
‘Describing the contents of the letter . . . of 28 August 2006 or the addressing of that l etter to
appellant as an act of spoliation is, in my opinion, stretching the meaning of the word spoliation
beyond permissible limits, grammatically speaking, or is an interpretation beyond what common
sense would allow. The most one can say of that letter is that it constitutes a threat and appellant’s
remedy for that would be no more than to seek an interdict against Respondent, as nothing done
by the letter makes the principle spoliatus ante omnia restituendus est applicable.’15
14 Footnote
15 The Three Musketeers Properties fn 2 para 24.
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[19] This reasoning, it seems to me, is guided by common sense and is correct. The
Constitutional Court in S v Williams and Others ,16 has recognised the importance of
Namibian precedents. Langa J said:
‘The decisions of the Supreme Court s of Namibia and of Zimbabwe are of special significance.
Not only are these countries geographic neighbours, but South Africa shares with them the same
English colonial experience which had a deep influence on our law; we of course also share the
Roman-Dutch legal tradition.’
[20] The high court erred in its interpretation and application of the requirement of
unlawful deprivation of possession for a spoliation order . In the process it extended the
scope of the mandament beyond its intended purpose, scope and limits. Its order , if
allowed to stand, would mean that a strongly worded letter threatening deprivation of
possession, or a threat to approach a court to restrain possession , would found an
application for the mandament van spolie. That is not the law.
[21] In the result the following order is made.
1. The appeal is upheld with costs.
2. The order of the court a quo is set aside and replaced with the following order:
‘The application is dismissed with costs.’
_________________
DLODLO DV
JUDGE OF APPEAL
16 S v Williams and Others 1995 (3) SA 632 (CC) para 31.
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APPEARANCES:
For the appellants: M G Hitge
Instructed by: Van Velden-Duffey Inc, Rustenburg
Phatsoane Henney Inc, Bloemfontein
For the respondent: Q Pelser SC
Instructed by: Hurter Spies Inc, Pretoria
Hendre Conradie Inc, Bloemfontein.