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JUDGMENT
PG LOUW, AJ
[1] This application is premised on the mandament van spolie.
[2] The applicant seeks an order requiring the respondents to restore the electricity
supply to its full load capacity for a specific unit (the flat) in the sectional tittle scheme
known as Willowdown situated at 6 First Avenue, Bordeaux (the property) within 24
hours. The applicant also seeks a punitive cost order against the respondents.
[3] The applicant alleges to be a tenant of the flat. The second respondent is the
body corporate in respect of the property in terms of the Section al Titles Schemes
Management Act (the Act).1 The first respondent is the managing agent of the second
respondent.
[4] On or about 31 July 2024, a letter was slipped under the door of the flat. The
letter, authored under the letterhead of the first respondent, indicate that the owner of
the flat occupied by the applicant owes the second respondent a substantial amount
of money in respect of levies and electricity and water charges. The applicant was
given written notice that the services to the flat will be terminated on 31 August 2024.
[5] The applicant contacted his attorney of record on or about 30 August 2024 for
assistance to deal with the threat of the disconnection. On the same day , the
applicant’s attorney sent a letter to the first respondent stating, inter alia, that the threat
of disconnection is unlawful, that the applicant is the tenant of the flat and is in peaceful
and undisturbed possession of electricity and/or other services, and that if the first
respondent disconnects the electricity or any other services to the flat without a court
order, the applicant will proceed with an urgent application for the reconnection thereof
and will seek punitive costs and damages against the first respondent. The letter seem
1 8 of 2011.
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to have had the desired effect, as the electricity supply to the flat was not disconnected
at that stage.
[6] However, according to the applicant, without any notice or court order, the
respondents disconnected the electricity to the flat on or about 8 November 2024 (the
first disconnection).
[7] The respondents’ version is that , on 1 November 2024 , the owners of the
second respondent, in view of the substantial arrears in respect of levies, water,
electricity and ancillary expenses for the flat, resolved to limit the flow of electricity to
the flat by reducing the electricity amperage from 60 amp to 10 amp. The respondents
deny that the supply of electricity to the flat was disconnected.
[8] The applicant submits that he was only able to consult with his attorney on 14
November 2024. On the same day, his attorney addressed a letter to the first
respondent demanding that the electricity be restored to the flat. Consequently, the
electricity was restored to the flat on the same day. However, one of the members of
the second respondent informed the applicant’s son that the electricity would “trip if
any large load appliances were used, that is appliances such as the stove, the geyser,
the iron, the kettle and the like”. The member apparently also informed the applicant’s
son that should the electricity trip, it would not be switched back on.
[9] The respondents admit that the amperage was reduced and contend that the
applicant still had electricity for daily use. According to the respondents, the applicant’s
son was advised that with the reduction of the amperage there would still be electricity
for lights, stove, geyser, iron, kettle and the like but that these appliances could not be
used simultaneously.
[10] On 18 November 2024, the applicant switched on the geyser, which caused the
electricity in the flat to trip. According to the applicant, he has not had any electricity in
the flat since 18 November 2024 (the second disconnection).
[11] The respondents deny that the reduction in amperage left the applicant without
the supply of electricity. According to the respondents, the applicant “has electricity for
his daily use”.
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[12] On 19 November 2024, a further letter was sent to the first respondent by the
applicant’s attorney demanding that the electricity supply be restored to its full capacity
by 20 November 2024, failing which the applicant would proceed to urgent court. The
applicant received no response to this letter.
[13] The applicant was able to consult his attorney on 25 November 2024 after he
was able to raise the required fund s to pay his attorney’s fees. The application was
ready for signature on 26 November 2024.
[14] The applicant’s children aged 24, 18 and 16 resided with him until 21 November
2024. He booked a flight for them to visit his mother in Cape Town until he could
resolve the current situation.
[15] It was argued on behalf of the respondents that the applicant should have
approached his landlord (the owner of the flat) upon receipt of the 31 July 2024 letter
from the first respondent. It was submitted that the applicant’s urgency is self-made.
[16] In Arcfyre International (Pty) Ltd and Others v Govender and Another,2 Adams
J held as follows:3
“Moreover, the applicant must justify the invasion of the respondent’s rights to proper
notice and an adequate opportunity to prepare. . . . The applicant must fully set out the
facts supporting the conclusion advanced; mere lip service will not do. If there is some
delay in instituting the proceedings an applicant has to explain the reasons for the
delay and must also explain why, despite the delay, it claims that it cannot be afforded
substantial redress at a hearing in due course. This however does not m ean that an
applicant can create its own urgency by simply waiting until the normal rules of court
can no longer be applied and a delay in bringing the application, or self -created
urgency, is a basis for a court to refuse to hear a matter on an urgent basis.” (Emphasis
added.)
[17] In Volvo Financial Services Southern Africa (Pty) Ltd v Adamas Tkolose
Trading CC,4 Wilson J held the following:5
2 (2023-098452) [2023] ZAGPJHC 1243 (31 October 2023).
3 Arcfyre at para 24.
4 (2023/067290) [2023] ZAGPJHC 846 (1 August 2023).
5 Volvo at para 6.
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“There is, accordingly, no class of proceeding that enjoys inherent preference. Counsel
appearing in urgent court would, in my view, do well to put the concept of ‘inherent
urgency’ out of their minds. There are, of course, some types of case that are more
likely to be urgent than others. The nature of the prejudice an applicant will suffer if
they are not afforded an urgent hearing is often linked to the kind of right being pursued.
Spoliation is a classic example of this type of claim. Provided that the person spoliated
acts promptly, the matter will nearly always be urgent. The urgency does not, though,
arise from the nature of the case itself, but from the need to put right a recent and
unlawful dispossession. The applicant comes to court because they wish to restore the
ordinary state of affairs while a dispute about the right to possess a thing works itself
out. Cases involving possible deprivations of life and liberty, threats to health, the loss
of one’s home or some other basic essential of daily life, such as water or electricity,
destruction of property, or even crippling commercial loss, are also likely to be urgent.”
(Emphasis added.)
[18] In this matter, the application was not instituted with haste. On the applicant’s
version, he “was in peaceful and undisturbed possession of electricity immediately
prior to the first disconnection and I had limited possession of electricity after the partial
restoration thereto on 14 November 2024”. If the letter from the first respondent dated,
31 July 2024, was not sufficient indication for the applicant to approach his attorney or
his landlord to try to resolve the situation, the indication to his son on 14 November
2024 of the reduced electricity supply , should have triggered the launching of this
application on an urgent basis. The applicant, however, only proceeded to prepare the
application eleven days later on 25 November 2024. The application was heard on 11
December 2024, more than a month after the first disconnection. One would have
expected the applicant to approach the court much sooner. I accordingly find that the
applicant did not act promptly as suggested in Volvo.
[19] There is another reason why the application ought not to succeed. The
mandament van spolie provides for interim relief pending the final determination of the
parties’ rights.6 In this matter, the applicant is not seeking any determination of the
parties’ rights. Put differently, the spoliation order sought is not subject to or pending
any action over the merits of the dispute between the parties. If this reasoning is
6 Eskom Holdings SOC Ltd v Masinda 2019 (5) SA 386 (SCA) at para 8.
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correct, it means by necessary implication that the mandament van spolie is not
available to the applicant, but rather that the applicant should meet the requirements
of injunctive relief. The applicant, however, made it clear that his case is based on the
mandament van spolie and that he does not seek interdictory relief.
[20] In Eskom Holdings SOC Ltd v Masinda ,7 the Supreme Court of Appeal
summarised the essence of the remedy of the mandament van spolie as follows:
“The mandament van spolie (spoliation) is a remedy of ancient origin, based upon the
fundamental principle that persons should not be permitted to take the law into their
own hands to seize property in the possession of others without their consent.
Spoliation provides a remedy in such a situation by requiring the status quo preceding
the dispossession to be restore d by returning the property 'as a preliminary to any
enquiry or investigation into the merits of the dispute' as to which of the parties is
entitled to possession. Thus a court hearing a spoliation application does not require
proof of a claimant's existing right to property, as opposed to their possession of it, in
order to grant relief. But what needs to be stressed is that the mandament provides for
interim relief pending a final determination of the parties' rights, and only to that extent
is it final. The contrary comment of the full court in Eskom v Nikelo is clearly wrong. A
spoliation order is thus no more than a precursor to an action over the merits of the
dispute.” (Footnotes omitted and emphasis added.)
[21] In the circumstances, I am not inclined to grant the relief sought by the
applicant. The matter ought to be struck from the roll for lack of urgency.
[22] Insofar as the issue of costs is concerned, the respondents seek a costs order
on the attorney and client scale. The request is based on Management Rule 25(4), 8
which provides for the liability of a ‘member’ to the body corporate for legal costs and
disbursements in the collection of arrear contributions or any other arrea r amounts
due and owing to the body corporate, or in enforcing compliance with the Management
Rules, the conduct rules or the Act. In my view, the provisions of the rule do not find
application in this spoliation application. The respondents are not collecting any
monies or enforcing any compliance in this application.
7 Eskom at para 8.
8 Prescribed in terms of s 10(2)(a) of the Act.
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Appearances
Counsel for applicant: Adv M Rodrigues
Instructed by: Kaveer Guiness Inc.
Counsel for first and second respondent: Adv C D Roux
Instructed by: Arnold Joseph
Date of hearing: 11 December 2024
Date of judgment: 24 December 2024