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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 073195/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE: 07 August 2024
SIGNATURE
In the matter between:
NASEERAH CASSIM First Applicant
SUHAIL ESSACK Second Applicant
and
FADEL NDAME
J U D G M E N T
TEFFO, J:
Introduction
[1] The applicants brought an application by way of urgency for
mandament van spolie in terms of which they sought the following orders:
that the respondent be ordered and directed to restore to them immediately
possession and control of the prem ises described as Unit 1[...] P[...] , 2[...]
R[...] Avenue, Waterkloof Ridge, Pretoria (“the premises”); that the respondent
be interdicted from interfering with their control and possession of the
premises; that the respondent be ordered to provide the keys to the new lock
installed in the premises alternatively, to restore the old lock for use with the
keys given to the applicants when they took possession of the premises; and
provide the applicants with all codes and authority including the cards to
enable them to gain access to the said premises electronically. The
respondent opposes the application.
The parties
[2] The first applicant is the wife of the second applicant. The applicants
have been occupying the premises from 1 March 20 24 in terms of a lease
agreement entered into by and between them and the respondent. The
respondent is the owner of the premises.
Background facts
[3] The lease was for a period of twelve months . In May 2024 the
applicants defaulted with their monthly rental payment. In the absence of the
second applicant who is currently in custody awaiting trial, on 30 May 2024
the first applicant received a letter from Hopgood Attorneys Inc, the attorneys
of the respondent, wherein she was given until 31 May 2024 to settle her
rental payment. The letter also notified her that the rental for the month of
June 2024 was due on 1 June 202 4. Furthermore, she was informed that
should she fail or refuse to make the payments of the rental for May and June
2024, the lease agreement is terminated and she should vacate the premises
and all other occupants by the close of business of 7 June 2024. The first
applicant was also notified that in the event she failed to remedy the breach
by settling the rental payments and failed to vacate the premises, the
respondent’s attorneys held instructions to proceed with an application for
eviction, rental interdict and summons against her.
[4] The first applicant did not pay rental for the months of May and June
2024. However, she promised to pay. She remained in the premises. On 11
June 2024 she went to visit h er brother-in-law, Mr Sulieman Essack and his
family in Modimolle. While she was in Modimolle, her other brother -in-law, Mr
Yousha Essack resided in the premises.
[5] On 12 June 2024, Mr Yousha Essack arrived at the premises and
found three African men . They claimed to be plumbers and electricians but
they did not have any equipment with them. They remained in the house
using the facilities unrestricted when Mr Yousha Essack slept in one of the
rooms. Eventually they left and slept in the bakki e and returned every
morning.
[6] On 25 June 2024 whe n Mr Yousha Essack arrived at t he premises, he
found that the key he was using all along did not work. One of the three
African men opened the door for him and advised that the lock had been
changed on the instructions of the respondent.
[7] On the same day the first applicant received another letter from the
respondent’s attorneys which stated that the applicants had vacated the
premises and had undertaken to remove the goods.
[8] On 26 June 2024 the applicant received another letter from the
respondent’s attorneys. The letter stated that the respondent’s attorneys had
instructions that if the movable pr operty of the applicants was not removed by
the close of business of 28 June 2024, the respondent would make
arrangements to remove them and place them in a storage facility. The
respondent would not accept any responsibility for any losses and/or
damages. Furthermore, the applicant would be responsible for the costs of
the storage and transportation. The let ter also stated that the first applicant
should note that the respondent would no longer provide her with access to
the premises after the close of business of 28 June 2024.
[9] As a result , the first applicant went to see her erstwhile attorney, Ms
Groenewald who responded to a letter from the respondent ’s attorneys dated
25 June 2024 and explained that the applicants did not vacate the premises
and their furniture and personal clothing were never abandoned.
[10] She also lodged a claim against the respondent with the rental tribunal.
At the tribunal she was provided with a letter addressed to the Station
Commander which she took to the police station. The police were supposed
to serve the letter upon the respondent. They did not do so. They felt that the
dispute between the first applicant and the respondent was a civil matter. The
same letter was sent to the respondent’s attorneys but nothing happened.
[11] This prompted the first applicant to consult with her current attorney of
record, Mr Brian Clayton on 29 June 2024 and this application was launched.
The parties’ contentions
[12] The applicants contend that they were in peaceful and undisturbed
possession of the premises until on 25 June 2024 when the respondent
changed the locks to the premises and the access codes to the complex in
which the premises are situated. The respondent further installed three adult
men in the premises to prevent the first applicant to retake possession of the
premises. By so doing the respondent has unlawfully deprived the applicants
of their possession to the premises without a court order.
[13] The first applicant is homeless. She had to reside with her brother -in-
law in Modimolle. The matter is urgent . It cannot wait to be heard in the
ordinary motion court.
[14] After receipt of the letter fr om the respondent’s attorneys, t he first
applicant contacted them and advised that she would make payment as soon
as possible as it was her intention to do so.
[15] She denies that she had abandoned the movables in the rented
property and that the applicants have vacated the premises. She also denies
that they use the respondent’s premises as a storage facility.
[16] She tendered to make payment for the arrear rental, however the
respondent refused it through his attorneys.
[17] The respondent raised the following points in limine to the application:
He contends that the application was not served on him. He claims that t he
application is not urgent. Furthermore, he asserts that he application is
pending before the rental tribunal. It cannot be heard by the urgent court.
[18] With regards to the merits the respondent denies that the applicants
were deprived of possession of the premises. He claims that the applicants
secured another residence. The lease was cancelled as a result of the breach
which was not remedied and new tenants were secured as per the lease
agreement dated 1 June 2024.
[19] The respondent further claims that the applicants were never denied
access to the premises and referred the court to Annexure “ FD07” to prove
that he provided the applicants access to the premis es to collect their
movables. He contends that in the messages received from the applicants on
18 and 28 June 2024 the applicants confirmed that they needed access to
remove their clothes and to arrange for a truck to remove the rest of their
belongings.
[20] The respondent further denies that the applicants are entitled to the
relief.
[21] He denies that the applicants remained in occupation of the property
until 25 June 2024. He asserts that if the applicants were still in occupation,
new tenants would not have been secured. The respondent contends that the
applicants never indicated that they wanted to remain in occupation. He
claims that they confirmed that they were to move out and would collect the ir
movables during June 2024. It was further contended that b ecause the
applicants vacated the premis es, it was not necessary for the respond ent to
proceed with an application to evict them from the premises.
The points in limine
The application was not served on the respondent
[22] The respondent contends that the application is not properly before
court because it was not served upon him in terms of the Uniform Rules of
Court. He also submitted that the time lines given in the notice of motion had
passed when the application was served on his attorneys. The application
was emailed to his attorneys of record with an undertaking that it will be
served upon him by the sheriff. That did not happen.
[23] The applicants contend that their attorneys have been communicating
with the respondent’s attorneys prior to launching the applicat ion. Their
attorneys emailed the application to the respondent’s attorneys before it was
signed and issued and eve n thereafter to give them time to be able to deal
with it. They claim that after the application was issued, the first applicant and
later on the sheriff attempted to serve the application on the respondent at his
residential address. His wife refused them access to the property.
[24] Although the application was not served on the respondent and/or his
wife and despite the time lines having passed, the respondent was able to file
his answering affidavit and the applicants also filed their replying affidavit . All
sets of papers are before court. I cannot find any reason why the matter
cannot be heard by this Court. The court therefore condones non -compliance
with the service.
The application is not urgent
[25] The respondent contends that it is not true that the applicants were
deprived o f possession of the premises. He submitted that t he applicants
vacated the premises to reside somewhere else and left their movables at his
property. They undertook to collect their movables during June 2024 after the
lease agreement was terminated and new tenants sec ured. In the month of
June 2024 the applicants were provided with access codes and started to
remove some of their movables but not all. In support of this allega tion, the
respondent attached WhatsApp messages between him and the applicants
from 7 June 2024 to 28 June 2024 (Annexure “FD07”).
[26] He referred the court to messages received on 18 June 2024 and 28
June 2024 and claimed that in the said messages, the applicants confirm that
they needed access to remove their clothing and to arrange a truck to remove
the rest of their belongings.
[27] The respondent claims that the urgency is self -created. The elements
of spoliation have not been met and reliance on inherent urgency is not
applicable. He further submitted that he cannot proceed with an eviction
application where the applicants have moved out of the premises.
[28] It is further contended that t he applicants agreed to vacate the
premises.
[29] The applicants submitted that this is a spoliation application and by its
nature it is urgent. They claim that the first applicant was in possession of the
premises. She was forcibly evicted and deprived of the enjoyment and
benefits of this possession. They further contend that non -payment of rent
does not entitle the respondent to lock them out of the premises without a
court order.
[30] The issues discussed under this heading go to the merits of this
application. I will address them when I deal with the merits of the application.
The applicants allege that they were deprived of their possession unlawfully.
Spoliation proceedings are inherently I am persuaded that the application is
urgent.
Lis alibi pendense
[31] The respondent contends that the applicant s referred the dispute to
the rental tr ibunal. The dispute is still pending before the tribunal. It cannot
therefore be entertained by this court. He argued that the litigation is between
the same parties, the cause of action is the same and the same relief is
sought in both matters. In support of this argument reliance was placed on
the decision in Caesarstone Sdot-Yam Ltd v The World of Marble and Granite
2000 CC and Others1.
[32] The applicants contend that the first applicant was desperate. She had
to approach the rental tribunal. A matter before the tribunal takes weeks to be
heard and is more than often postponed at a whim. She would have no place
to stay pending the delay of months to finalise the matter. It was submitted
that the respondent failed to respond to any correspondence of the tribunal.
[33] A tribunal cannot take away the constitutional right of a litigant to
approach the court. Reliance of the respondent on the Caesarstone matter is
misplaced in that the decision refers to matters that are before the courts. A
tribunal is not a court o f law. It is within the rights of a litigant to choose any
forum he wants to approach for resolution of disputes. This point in limine has
no merit. It is therefore dismissed.
The merits
Applicable law
[34] The mandament van spolie has three characteristics; it is a possessory
remedy; it is an extraordinary, a robust and a speedy remedy.
[35] The court in Scoop Industries (Pty) Ltd v Langlaagte Estate and GM
Co2 had this to say:
“Two factors are required to find a claim f or an order for the restitution
of possession on an allegation of spoliation. The first is that the
applicant was in possession and the second, that he has been
wrongfully deprived of that possession and against his wish. It has
been laid down that there must be clear proof of possession and of the
illicit deprivation before an order should be granted … It must be shown
that the applicant had had free and undisturbed possession.”
1 Caesarstone Sdot-Yam Ltd v The World of Marble and Granite 2000 CC and Others 2013
(6) SA 499 (SCA)
2 1948 (1) 91 W at page 98, Ivanov v North West Gambling and Others 2012 (6) SA 67 (SCA)
[36] The question as to who bears the onus of proving spoliation was
settled in the case of Yeko v Qana3 where the court had this to say:
“In order to obtain a spoliation order the onus is on the applicant to
prove the required possession, and that he was unlawfully deprived of
such possession. The applicant must prove the facts necessary to
justify a final order – that is, that the things alleged to have been
spoliated were in his possession, and that they were removed from its
possession forcibly or wrongfully or against its consent.”
[37] It is incumbent upon the applicant to satisfy the court on a balance of
probabilities that she is entitled to the relief sought by pr oving that she was
indeed in peaceful and undisturbed possession at the times in question and
that the respondent wrongfully dispossessed her of those items. The applicant
must satisfy the court on the admitted facts that she is entitled to the relief
sought.4
[38] In K2017427913 South Africa (Pty) Ltd v Du Plessis 5 the court held
that the court a quo erred by finding that the respondent did have undisturbed
possession of the property before he was spoliated. The court a quo failed to
enquire whether the effective physical control over or possession of the
property had not been lost by the respondent when he left the property on the
premises, which enquiry was necessary in order to determine whether the
respondent had indeed been spoliated. Had the court a quo enquired into this
aspect it would and should have found that the respondent on his own
version, had lost effective physical control over, or possession of the property
at the material stage which control or possession was a requirement for a
spoliatory relief to be granted to him. The appellant’s point in limine in this
regard should accordingly have been upheld by the court a quo.
3 1973 (4) SA 735 A at page 739E
4 P.M. v R.M. and Another (6414/21) [2022] ZAWCHC 12 (8 February 2022)
5 CIV APP FB 24/2022; UM223/2021 [2023] ZANWHC 115 (3 August 2023)
Discussion
Were the applicants (in particular , the first applicant) in peaceful and
undisturbed possession at the time of spoliation?
[39] On their own version the applicants allege that they defaulted with
their rental payments for May and June 2024. The respondent through his
attorneys sent a letter to the first applicant on 30 May 2024 where she was
given until 31 May 2024 to pay. She was also reminded that their rental for
June 2024 was due on 1 June 2024. She was notified that should she fail to
settle the payments, the lease agreement is cancelled and she should vacate
the premises and all other occupants by 7 June 2024.
[40] The first applicant did not settle the arrear payments. However , she
alleges that she continued to remain in the property. As and when she was in
the property, she knew that the agreement of lease came to an end as a
result of her breach as a result of non -payment of rent . She also knew that
she had to vacate the property. There was therefore no basis for her and the
other occupants to remain in the premises. She knew she was not in lawful
possession. It cannot be correct for her to contend that sh e was in peaceful
and undisturbed possession of the premises.
[41] Put differently at the time of the alleged spoliation the fir st applicant
was not in possession of the premises. Payment of rental was demanded
from her on 30 May 2024. She failed to pay and the contract wa s cancelled.
At the time when her brother -in-law came to the premises, the applicants had
long lost possession of the leased premises. The fact t hat the applicants’
movables are still at the premises does not revive their possession of the
premises. At that time the applicants did not enjoy a p eaceful and undisturbed
possession of the premises.
Were the applicants unlawfully deprived of the possession of the premises?
[42] At the time of the spoliation the applicants did not possess the
premises. They could not, therefore, have been deprived of possession.
[43] Under the circumstances the applicants have failed to prove that they
are entitled to the relief sought on a balance of probabilities.
[44] Based on this conclusion I do not find it necessary to deal with the
ancillary relief sought.
Costs
[45] It is trite that costs should follow the result. The respondent’s counsel
asked for punitive costs against the applicants. I am not inclined to grant such
costs.
Order
[46] Consequently, the following order is made:
1. The application is dismissed.
2. The applicants are ordered to pay the costs of this application.
M J TEFFO
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances
Counsel for the applicants Clayton BC
Instructed by Brian C Clayton & Co
Counsel for the respondent
Instructed by Hopgood Attorneys Inc
Heard on 17 July 2024
Handed down on 7 August 2024