REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 12231/2024
(1) REPORTABLE: YES/ NO
(2) OF INTEREST TO THE JUDGES: YES/ NO
(3) REVISED.
DATE
SIGNATURE
In the matter between:
FIRST CLASS FABRICATION (PTY) LTD Applicant
And
ROADS AGENCY LIMPOPO (SOC) LTD First Respondent
RSSM CONSTRUCTION (PTY) LTD Second Respondent
Delivered : This judgment is handed down electronically by circulatio n to the parties
through their legal representatives’ email addresses. The date for the hand -down is
deemed to be 27 January 2025.
JUDGMENT
MAKOTI AJ
Introduction
[1] Due to internal administrative mishaps this judgme nt was not circulated on 17
December 2024 when it was finalised. The parties deserve an apology.
[2] This application was brought on urgent basis, with First Class Fabrication (Pty) Ltd
(FCF), the applicant , seeking an order to be restored possession or access to a
construction site known as Mavunga Access Road, Vhembe District, Limpopo Province.
The Roads Agency Limpopo (SOC) Limited (RAL), the first res pondent, opposes the
application . There was no filing on behalf of the second respondent, RSSM Construction
(Pty) Ltd (RSSM).
[3] Where I r efer to pa rties in this judgment it should be understood to me an both FCF
and RAL collectively, and to the exclusion of RSSM which is not participating. It is common
cause that RSSM is the new service provider that RAL appointed to take over the site at
Mavunga to perform the construction works. It replaced FCF.
[4] The application was first before court on 12 November 2024 on which occasion it
was rem oved from the roll by Pillay AJ. Costs were reserved for later determination.
Issues to be decided
[5] Before me th e parties were ad idem on a number of facts, more so about the
contract that bound them, its length and material terms. They were also in agreement about
the delivery challenges which were encountered by FCF in its quest to meet the obligations
under the contract. I will deal with the specifics of the challenges below.
[6] Mandament van spolie is a legal reme dy that is available in our jurisp rudence, the
purpose of which is to protect possession of property. Its purpose is to prevent unlawful
dispossession of property. Thus, where it is successfully invoked it results in the restoration
of possession to persons who have been unlawfully dispossessed of property. What I have
to decide, according to established legal principle for mandament van spoli e1 is whether
FCF should be granted the remedy or not.
[7] To be granted the remedy an applicant has to satisfy two of important requirements.
The first is that a person who seeks repossession must prove peaceful and undisturbed
possession of the property . And the second is that the person must show unlawful
disposs ession (or deprivation) by the spoliator .2 Both must be established. However, even if
the first question whether the remedy should be granted is answered affirmative ly, there
are instances where the remedy may still be refused . This will happen where a valid
defence has be raised .
[8] Before I ponder the ques tion whether the remedy ought to b e granted, I take a
detour to deal with the question of urgency. This is necessary because of the contenti on by
RAL that urgency is contrived and that I should reject the call to accord priority to the
application.
Whether the application is urgent
[9] Urgency stands on two anchor consideration, which are trite. First, an applicant is
required to adduce [suf ficient] facts which it avers renders the application urgent. Second,
once the first hurdle has been successfully ov ercome, such applicant must provid e reasons
why it will not attain substantial redress at a hearing in the future. In Cekeshe And Others v
Premier, Ea stern Cape, And Others3 the court explained that the substance of the case,
factually established, is an important consideration as oppos ed to the form of the
application.
1 Naidoo v Moo dley 1982 SA 82 T.
2 Nino Bonino v De Lange 1906 TS 120 ; Also, Yeko v Qana 1973 4 SA 735 (A) 739.
3 Cekeshe And Others v Premier, Eastern Cape, And Others 1998 (4) SA 935 (TK).
[10] Without regurgitating them, the grounds for urgency raised by FCF are inter alia that:
[10.1] it [FCF] received a notice of termination of the service agreement on 23
October 2024. The applicant contends that RAL was barr ed from terminating the
agreement due to its earlier breach of contract, and that the termination was
unlawful and u nwarranted;
[10.2] on 27 October 2024 FCF was told t o leave the construction site, conduct
which it contends amounted to spoliation. Physical dispossession also followed;
[10.3] further, that FCF retained contractual possession of the site;
[10.4] then that:
“The present application is thus extremely urgent because, and, absent the
enrolment and adjudicatio n of the application on an urgent basis , the
Applicant shall not achieve any redress in a hearing in due course. Unless the
application is h eard and determ ined urgently, the Applicant shall suffer
irreparabl e harm.”
[10.5] the its staff members will suffer from the illegal and unlawful manner in which
the construction site was forcefully taken away from it ; and
[10.6] that the public purse to the value of R41 000 000 (Forty -One Million Rand
Only) was seriously and detrimentally affected by the awarding of the contract to
RSSM.
[11] RAL refutes the se by pointing out that the service agreement between the parties
long terminated by effluxion of time on 08 May 202 4. From that date, the contention
continued, FCF los t all contractual rights to be in contractual possession of the site as there
was no written extension of the agreement, in writing. The request for extension of contract
was declined by RAL’s agent (known commonly as employer’s agent).
[12] Also, RAL contends that FCF has long abandoned the construc tion site on 07
November 2023, and that it did not state in the application as to when it returned to site.
The allegation that employee wer e physically dispo ssessed from the construction site were
rejected as false, recording that FCF refused to return to site when it was instructed to do
so by the employer’s agent. Thus, the contention proceeded, FCF has not been in physical
possession of th e construction site since 07 November 2023.
[13] I have already expressed it that the rules enjoin a party that seek s to be heard on
truncated timeframes to:
“… set forth explicitly the circumstances which he avers render the matter urgent
and the reas ons why he claims that he could not be afforded substantial redress at a
hearing in due course.”4 (Emphasis added)
[14] What the sub -rule requires are facts to the satisfaction of the court , firstly, which the
applicant rel ies on for alleging that the appl ication is urgent.5 The second anchor, whether it
will be afforded substantial redress in the future, is triggered o nce the applicant has
succeeded with the f irst leg of the enquiry.
[15] Having regard to the facts in this application, viewed in light of the applicable leg al
principles, I am not convinced about most of the grounds of urgency that FCF relies on in
its quest to be heard on truncated time periods. What make me willing to hear this
application on urgent basis are the exchanges that took place on 23 October 2024 and,
thereafter, on 27 October 2024. I do this in order to determine whether what happened on
those days are acts of spoliation and, also, because of the nature of the application which
were are told deserves urgent attention.
Whether th e applicant was sp oliated
4 Erasmus: RS 13, 2 020, D1 -50.
5 Salt v Smith 1991 (2) SA 186 (Nm) ; Cekeshe v Premier, Eastern Cape 1998 (4) SA 935 (Tk) at 948F; also,
East Rock T rading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others (11/33767) [2011]
ZAGPJHC 196 (23 September 2011).
[16] The extraordinary and robust nature of mandament van spolie is a well settled part
of our jurisprudence. It is a potent remedy against unlawful dispossession.6 Spoliation
orders are especially important instruments in the bat tle against self -help. A court hearing a
spoliation application does not concern itself with the rights of the parti es, and it limits itself
to the question w hether there has been dispossession.7
[17] I need to briefly consider the written agreement betwee n the parties, whi ch they
have addressed me on. They agree to have concluded a valid and binding service level
agreement on 03 May 2023. This followed the formal appointment , in writing, of FCF as
RAL’s service provider or contractor on 07 December 2022, u nder tender numbers
RAL/T1048/2022. Clause 1.16 of the service agreement reads thus:
“The duration of the project im plementation for the project that is the s ubject -matter
of this agreement, as agree d by the parties, is a period of 12 (Twelve) months, whic h
period shall com mence on 9 May 2023 and lapse on 8 May 2024, unless extended
or accelerated by written agreement by both parties, in terms of the procedure
provided for extension in clause 5.12 of the GCC.”
[18] Further, the service agreement states tha t no amendments shall carry contractual
force and effect if they are not reduced to writing and signed by both parti es. The parties,
when concluding and agree ing the terms of the service agreement, exercised their freedom
to contract. The freely agreed ter ms must be given t heir effect, a notion known in our
jurisprudence as pacta sunt servanda .
[19] That principle simply means that agreements must be kept, and implicates court to
not easily refuse to give effect to contracts concluded between parties. In Beadica8 the
court held that:
6 Bon Quell (Edms) Bpk v Munisipaliteit van Otavi 1989 (1) SA 508 (A).
7 Top Assist 24 (Pty) Ltd T/A Form Work Construction v Cremer and Another [2015] 4 AII SA 236 (WCC) (28
July 2015) para 33.
8 Beadica 231 CC and Others v Trustees for the time being of the Oregon Trust a nd Others (CCT109/19)
[2020] ZACC 13; 2020 (5) SA 247 (CC); 2020 (9) BCLR 1098 (CC) (17 June 2020). See also, Napier v
Barkhuizen 2006 ( 4) SA 1 (SCA) (Barkhuizen SCA ).
“[89] This principle follows from the notion that contracts, freely and voluntarily
entered into, should be honoured. This Cour t has recognised as sound the
approach adopted by the Supreme Court of Appeal that the power to invalidate, or
refus e to enforce, contractual terms should only be exerc ised in worthy cases.”
[20] Upholding a contract with the fullness of its terms would also mean, in the context of
this case, that an extension of the agreement is done in the manner tha t is contractually
regulated. It is common cause that RAL through its principal agent, employed to oversee
the progr amme of the works, refused to grant an extension of time to FCF when it made the
request.
[21] FCF’s case is that its service agreement wit h RAL was extended and that agreement
was still valid on the fateful day. It reads this from a number of factors, including the letter
that it received from RAL purporting to terminate the agreement, dated 13 September 2024.
By then, according to the terms of the agreement which I have mentioned above, the
stipulated date of termination of the agreement had already pass ed, with no written
extension agreed to and signed by the p arties.
[22] I struggle to conceive the argument on behalf of FCF that the agreem ent between
the pa rties remained in existence. If it did, for how long was it going to remain in existence?
Also, who agreed to the extensi on? These are questions that have no answer s from FCF,
except to try and infer from the above facts that it remained with the contract. But the
applicant acknowledges that it did request to be granted an extension and that the reques t
was refused.
[23] The fact that FCF disputed the termina tion of the agreement is for me of no moment.
More so as the agreement terminated by effluxion of t ime. What FCF was firmly aware of
was that its request for an extension was not allowed, and it was a only matter of time
before it was asked to told to vacate site. It held onto the site when it was not performing
any work, not due to an yone’s fault, but its inability to perform the works for which it was
appointed as a contractor.
[24] RAL pleaded th at FCF had abandoned the construction site and that, as a r esult, the
claim of spoliation is untenable. The contention is that FCF left site on 23 November 20 23
and has not returned to it ever since. This is disputed by FCF which contends that it only
suspended the works. To bol ster the contention FCF relied on Energy Works (Hull) Ltd v
MW High Tech Projects UK Ltd and another9 which affirmed a contractor’s right to suspend
works as a mechanism to enforce payment from the employer. I am not convinced with t he
notion that FCF suspended the works due to, perhaps, non -payment by RAL. There are no
facts evincing that RAL was in breach of the agreem ent warranting sus pension of the
works.
[25] When I e ngaged with counsel for FCF about this issue she indicated that the
applicant is not b asing the application on physical possession but on contractual
possession. This was a slight departure from the case that was made on behalf of FCF, in
that it sought to refute the contention that it had abandoned site as baseless. The
concession was correctly made in that objective evidenc e reveals that the applicant was
asked on several occasion s to return to site, an d failed to do so. In my view, this seals t he
question that FCF was not physically in peaceful and undisturbed possession of the site. It
was not.
[26] In Turney and another v Ntintelo10 and another which was relied on by RAL the
following was stated:
“[22] Originally, the mandament only protected the physical possession of movable
or immovable property. However, ov er the years and in the course of scientific
development, i t was extended to cover the so -called ‘quasi -possession’ of certain
incorporeal r ights, such as ser vitutal rights, and incidents of possession, such as
electricity and water supply cases. See Telkom SA Ltd v Xsinet (Pty) Ltd (supra ),
para 9. But not all incorporeal rights may be the subject of spoliation. Eskom
Holdings SOC Ltd v Masin da 2019 ( 5) SA 386 (SCA) para 14. For instance, the
9 [2022] EWHC 3275 (TCC) paras [73] – [83].
10 [2023] JOL 58279 (WCC).
quasi -possessio n of purely personal rights or specific performance of contractual
obligations do not enjoy protect ion under this possessory remedy.”
[27] Also, the Court in the same case then held that mandament van spolie remedy is not
available to resolve contractual disputes or for specific performance.11 In Eskom Holdings
SOC Ltd v Masinda12 it was held inter alia that:
“[22] ... The mere existence of such a supply is, in itself, insufficient to establish a
right constituting an incident of possession of the property t o which it is delivered. In
order to justify a spoliation order the right must be of such a nature that it vests in the
person in possess ion of the property as an incident of their possession. Rights
bestowed by servitud e, registration or statute are obvious examples of this. On the
other hand, rights that flow from a contractual nexus between the parties are
insufficient as they are purely personal and a spoliation order, in effect, would
amount to an order of specific performance in proceedings in which a respondent is
precluded from disproving the merits of the applicant’s claim for possession.
Conseq uently, insofar as previous cases may be construed as holding that such a
supply is in itself an incident of the possessi on of property to which it is delivered,
they must be regarded as having been wrongly decided.” (Emphasis added)
[28] What FCF wants in this case is for its alleged contractual rights to be protected such
that it is returned to sit e. That sounds like a cry for specific performance. However , on
whatever front that I have tried to look into this application, I find mysel f unable to agree
that FCF was in possession of the site and that it was dispossessed by RAL and the
Second Respondent.
[29] The indicatio ns are that FCF met serious financial difficulties which hampered its
abilities to meet its obligations in terms of t he agreement. When it overcame those
difficulties the term of the agreement had neared the end. Its request for an e xtension was
not approved. The absence of an extension can only mean that the agreement terminated
11 Ibid, par [38].
12 Eskom Holdings SOC Limited v Masinda (1225/2018) [2019] ZASCA 98; 2019 (5) SA 386 (SCA) (18 June
2019).
in accordance with its terms.
[30] In the premises, I find , on the question posed above that FCF was not dispossessed.
It simply was not there to perform its functions or obligati ons in terms of the agreement.
FCF has not been in peaceful and undisturbed possession of the site.
Costs
[31] This i s a case which does not implicate the protection of constitutional rights and, the
now established Biowatch13 princip les are not applicable. The purpose of an award of costs
to a successful litigant has been said to be to indemnify such party for the expens e to which
he or she or it has been put through having been unjustly compelled to initiate or defend
litigation. This is a general principl e.
[32] Some time ago the Court dealt with the question of costs in Kruger Bros &
Wasserman v Ruskin14 and it held th at:
“The rule of our law is that all costs – unless expressly otherwise enacted – are in
the discretion of the Judge. His discretion must be judicially exercised but it cannot
be challenged, taken alone and apart from the main order without his permission”.
[33] I have read the application which is made out of voluminous papers. Some of the
documents which form part of the filed case were unhe lpful and could have been avoided.
Nonetheless, there is no reason why I should not follow the principle that costs s hould
follow the result. I must also say that I am unpersuaded by the parties respective
contentions that costs shou ld be awarded at a higher scale and that they should includ e the
costs of two counsel where there has been the use of more than one counsel. Normal costs
are warranted.
ORDER
13 Biowatch Trust v Registrar Genetic Re sources and Others (CCT 80/08) [2009] ZACC 14; 2009 (6) SA 232
(CC) ; 2009 (10) BCLR 1014 (CC) (3 June 2009).
14 1918 AD 63 at 69.
[34] I make the following order:
[a] The application is dismissed with costs.
_______________________
M. Z. MAKOTI
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION
APPEARANCES:
FOR APPLICANT : ADV S MARTIN
COX YEA TS ATTORNEYS
C/O NILAND & PRETORIUS INC
POLOKWANE
FOR FIRST RESPONDENT : ADV W MOKHARE SC
ADV S MATHABATHE
MONTANI ATTORNEYS
POLOKWANE
DATE HEARD: 19 NOVEMBER 2024
JUDGMENT DELIVERED: 27 JANUARY 2025