SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE )
CASE NO : 1454/2025
(1) REPORTABLE: YES/ NO
(2) OF INTEREST TO THE JUDGES: YES/ NO
(3) REVISED: YES/ NO
SIGNATURE: Makoti AJ
DATE: 18/02/202 5
In the matter between:
SAND HAWKS (PTY) LTD Applicant
And
65 TWIN PROPERTY2 (PTY) LTD First Respondent
RBP SECURITY SERVICES Second Respondent
POLOKWANE LOCAL MUNICIPALITY Third Respo ndent
Delivered : This judgment is handed down electronically by circulation to the parties
through their legal representatives’ email addr esse s. The date for the hand -down is
deemed to be 18 February 2025.
JUDGMENT
Makoti AJ
Introduction
[1] Mandam ent va n spolie is a legal remedy that i s available for a person wh o has
been rendered a victi m of unlawful deprivation of property . Spoliation is inimical to
our country ’s constitutional order and, when proven, the court should not be af raid
to re store possession to a person who ha s been unlawf ully dispossessed of
property. Whe ther I am confronted with a case for spoliation will be answered later
when I traverse the facts.
[2] The applicant came to court on extremely urgent basis seeking to be restored
possession of property, Erf 6 [...] E[...] R[...] Extension 3 (the property) , by the first
and second respondents. The property in question belongs to the Polokwane Local
Municipalit y (the Municipality). For years the applicant was a tenant leasing the
propert from the Municipality.
[3] As a mat ter of co mmon cause, the lease agreement between the applicant and
Polokwane Loc al Municipality (the Municipality) has ended . Since the termination of
the lease agreement by effluxion o f time, the Municipality concluded a new
agreement with the current tenant which is known as Networth Properties (Pty) Ltd
has concluded a lease with the Municipality.
[4] Though its lease has terminated , the applicant continued to conduct its sand mining
and supply business from the property . This was made possible through , first, an
extension of the lease period with the Municipality in which the parties had agreed
that the applicant would vacat e the propert by September 2023. Still, by the end of
September the applic ant remain ed in occupation and conducting its business from
the pr operty. All of these were disturbed by the events of 11 February 2025, to
which I shall refer later in this judgment.
For determination
[5] The applicant seeks urgent restoration of undisturbed possession of the property ,
which it alleges was unlawfully dispossessed by the first and second respondents.
In op position, the first respondent raised a number of technical and substantive
defences . They are that : the applicant failed to join Networth as a party to the
proceedings; th e applica tion lacks urgency; an d that the applicant has not been
dispossessed of the property. Th ose are issues therefore the issues to be decided
in this application.
[6] Being the registered owner of the property, the Municipality made a late entry into
the proceedings. It sought to h ave the application postponed to Tue sday 18
February 2025, which I could not grant due to the nature of the case.
Non-joinder of Networth
[7] Without suggesting that they are all happy with it, t he parties nonetheless appea r
ad idem over the fact that Netw orth is the current holder of tenan cy righ ts over the
property, having concluded a long -term lease with the Municipality. That being the
case, one cou ld argue that Networth has the right to pro tect its tenancy rights to
possess and use the property for the duration of its agreement with the
Municipality. That would be sound argument if the issue in this case was concerned
with the legal entitlement to occupy and use the property.
[8] The test for joinder is not complicated and can best be illustrated from the authority
in SA Riding for the Disabled Association v Regional Land Claims Commissioner
and Others1 which reads inter alia that:
“[10] If the applicant shows that it has some right which is affected by the order
issued, permission to intervene must be granted. For it is a basic principle
of our law that no order should be granted against a party without affording
such party a pre decision hearing. This is so fundamental that an order is
generally taken to be binding only on parties to the litigation. ”
[9] At a later stage the court further elucidated the principle i n Myeni v Organisation
Undoing Tax Abuse NPC and Others2 (Myeni) in which it held inter alia the follow ing:
"Non -joinder arises where another party has a direct and substantial
interest in the matter, which is determined by the relief that is sought. A
party can only be said to have a direct and substantial interest in the matter
if the relief cannot be sustained and carried into effect without prejudicing
their interests.”
[10] The author ity in Myeni quoted and applied the principle that was a long time ago
esposed in Amalgamated Engineering Union v Minister of Labour ,3 where it was
held that:
“[t]he question of joinder should … not depend on the nature of the subject
matter of the suit … but… on the manner in which, and the extent to which,
the Court's order may affect the interests of third partie s.”
[11] For purposes of this case, and taking the applicants ’ relief into consideration , the
non-joinder point cannot b e sustained. It is not Networth that is alleged to have
1 South African Riding for the Disabled Association v Regional Land Claims Commissioner and Others
2017 (8) B CLR 1053 (CC); 2017 (5) SA 1 (CC) (23 February 2017) para 10.
2 Myeni v Organisation Undoing Tax Abuse NPC and Others (15996/2017) [2019] ZAGPPHC 565 (2
December 2019) at para s 64 - 66.
3 Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 63 7 (A) at 657 .
spoliated the property. Also, on the facts, the first respondent is the party that is
alleged to have committed the unlawful act of spoliating the property from the
applicant, and using the services of the second respondent. Apart from the fact that
the company is the current lessee, t here is no suggestion that Networth has taken
over possession of the property pursuant to the events of 11 and 12 February
2025.
[12] On the first respondent ’s version, it is itself that was sc heduled to have assumed
possession to commence its business operations from 01 October 2024 and
pursuant to a sub -lease concluded with N etworth , but for the applicant reneging on
its promise. It is not necessary to deal with the nature of the intended business (es).
[13] For purposes of the present application of mandament van spolie , Networth
features scantily and it cannot be taken to be a party that has direct and substantial
interest in the outcome of the case. The defense of non -joinder accordingly fails.
Urgency
[14] I have foreshadowed earlier that the e vents of 11 and 12 February 2025 are what
led to th e institution of this application. The applicant alleges that it was conducting
business in the normal cause when the first respondent sent armed gua rds to the
property to stop the operation of business and to remove the applicant and its
equipment from the pr emises.
[15] Urgency stands on two anchor consideration s, which are trite. First, an applicant is
required to adduce [sufficient] facts which it avers renders the application urgent.
Second, once the first hurdle has been successfully overcome, 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, Eastern Cape, A nd Others4 the court explained
that the substance of the case, factually established, is an important consideration
as opposed to the form of the application.
4 Cekeshe And Others v Premier, Eastern Cape, And Others 1998 (4) SA 935 (TK).
[16] I have already expressed it that urgency rules enjoin a party that seek s to be heard
on trun cated timeframes to:
“… set forth explicitly the circumstances which he avers render the matter
urgent and the reasons why he claims that he could not be afforded
substantial redress at a hearing in due course.”5 (Emphasis added)
[17] What the sub -rule req uires are facts to the satisfaction of the court , firstly, which the
applicant rel ies on for alleging that the application is urgent.6 The second
consideration is whether the applicant will be afforded substantial redress in the
future, which is a factor t hat is triggered once the applicant has succeeded with the
first leg of the enquiry.
[18] Spoliation cases have oftrn been held to be inherently urgent. Provided that a party
which complains of hav ing been spoliated acts promptly, spoliation cases are
designed for speady remedy . They have been t reated as urgent in a vast number
of case s. This is not to su ggest that spoliation case s become automatically urgent .7
The urgency does not, also, arise from the nature of the case itself, but from the
need to put ri ght a recent and unlawful dispossessio n.8
[19] On the perculiar facts of this case I am satisfied to treat this application as urgent.
Whether the applicant was spoliated
[20] That s poliation as an extraordinary and robust remedy is well documented . It is a
potent remedy against unlawful dispossession.9 Spoliation orders are especially
5 Erasmus: RS 13, 2 020, D1 -50.
6 Salt v Smith 1991 (2) SA 186 (Nm) ; Cekeshe v Premier, Ea stern Cape 1998 (4) SA 935 (Tk) at 948F;
also, East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others (11/33767)
[2011] ZAGPJHC 196 (23 September 2011).
7 Mangala v Mangala 1967 (2) SA 415 ECD at 416 para F .
8 Siyakhulisa Trading Enterprise (Pty) Ltd v Glencore Operations South Africa (Pty) Ltd and Another
(2023 -038568) [2023] ZAGPJHC 1099 (2 October 2023) at para 5 .
9 Bon Quell (Edms) Bpk v Munisipalite it van Otavi 1989 (1) SA 508 (A).
important instruments in the battle against self -help, which is inimical to o ur
constitu tional or der.10 A court hearing a spoliation application does not concern
itself with the rights of the parties, and it limits itself to the question w hether there
has been dispossession.11
[21] It is the case of the applicant that:
[21.1] since 2007 it was in possession of the property. Its pos session and use of
the property was regulated t hrough a lease agreement which the
Municipality;
[22.2] the lease agreement has since ter minated and it is aware that the
Municipality has con cluded a new long -term lease with Networth;
[23.3] despite the termination of the lease agreement it remained in peaceful and
undisturbed possession of the property;
[24.4] its peaceful and undisturbed possession (and use) of the property was
disturbed on Tuesday 11 February 2025 by the first and second
respondents who, armed with heavy weaponry , descended onto the
property for the purpose of evicting the applicant ; and
[25.5] on Wednesday 12 February 2025, the first and second respondents
physically began to remove the applicant ’s goods , in the form of sand
products, from the property.
[26] The first respondent disputes the allegation that it has dispossessed the applicant ,
let alone through unlawful mea ns. Its case is that the applicant has previously
made promises to vacate the property, b ut failed to make good of its undertakings.
10 Lesapo v North West Agricultural Bank and Another (CCT23/99) [1999] ZACC 16; 2000 (1) SA 409;
1999 (12) BCLR 1 420 (16 November 1999) .
11 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.
This has led t o mediation being c onducted , led by Matodzi Joseph Mukwevho (Mr
Mukwev ho) on 11 February 2025 . It is the case of the first respondent that upon the
conclusion o f mediation , the applicant voluntarily began to vacate the property .
Further , that the material s such as sand and c rushers were moved to an adjoining
property which belongs to the applicant. And lastly, pointing to photographic
images, the first respondent allude d to it that there could not have been spoliation
because the applicant ’s material was still visibly on site , including its trucks and
other equipment.
[27] According to Mr Mukwevho the media tion was attended on behalf of the applicant
by Ms Mapula Tladi (Ms Tladi) , a person who is in charge of the applicant . She
denie s the a verments attributed to her. To sum u p Mr Mukwevho ’s testimony, he
said in his confirmatory affidavit which was used in support of the first respondent ’s
answering affidavit that:
“5. I mediated the dispute and all parties agreed that the Applicant will
immediately vacate the site. At the ti me when I left the site more than thirty
(30) loads of mat erial were rem oved by the applicant ’s trucks into the
adjacent plot which is also used by the applicant for the same operations.
According to my observation I did not see any confrontation or intimi dation
between the security company and the employees of the applicant. ”
[28] It is telling that w hen Mr Mukwevho first went to site, Ms Tladi had not yet arrived
there and that the security personnel employed by the second respondent were
presen t. This is confirmed by the statement of Ms Tladi who in confirming the
contents of the replying affidavit mentioned that she heard of the presence of the
security person nel at around 08H30 on 11 February 2025. She further mentioned
that she then received a telepho ne call from Mr Mukwevho who indicated to her
that he was at the property.
[29] Upon being requested to attend at the applicant ’s offices, Mr Mukwevho went there
to meet and discuss the matter with Ms Tladi. Out of these statement is where the
key to what happened lies. In as much as Mr Mukwe vho talks about mediation , the
question is, what tr iggered the mediation as it appears that he went to the property
on 11 February 2025 on his own accord. He also said in his affidavit that:
“4. In turn NETWORTH PROPER TIES entered into an agreement with 65
TWIN PROPERTY2 (PTY) LTD. A s a result, the first Respondent is the
lawful occupier of the site in qu estion. I further confirm that there have been
numerous engagements between I and the applicant with regards to its
vacation from the pre mises. ”
[30] The notion that Mr Mukwevho was a mediator of some sort is belied by the
contents of the above stanza. In it he presents a partisan stance which supports
the position of the first respondent to take over the property as a lawful occupier.
No doubt, based on the lease and the sub -lease, the respondents have acquired
the legal right or title to occupy the property. But spoliation is not concerned with
that at all.12
[31] There is, of co urse, a dispute as to whether the app licant ’s employees removed
material from the property to an adjacent one. It arises from the fact that Mr Tladi
calls the version proffered by the first respondent in paragraph 16 of the answering
affidavit blatant lie s. Her version is that there was no me diation and no agreement
was reached for the applicant to vacate the property. Mindful of the principles from
the fames Pascon -Evans Paints13 case, the court is required to use its best industry
to unravel the prevailing dispute s of a factual nature .14
[32] Taking the full facts of the case into account, it is difficult to see how the applicant
began the repatriation of its material from the property. I say this also taking into
consideration the fact that on 11 February 2025 the applicant had already
approac hed its lawyers about what was happening on site. That can hardly signify
12 Top Assist 24 (Pty) Ltd T/A Form Work Construction v Cremer and Another , supra .
13 Plascon -Evans Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd. (53/84) [1984] ZASCA 51; [1984] 2
All SA 366 (A); 1984 (3) SA 623; 1984 (3) SA 620 (21 May 1984) .
14 Stellenbosch Farmers' Winery Group Ltd. and Another v Martell & Cie SA and Others (427/01) [2002]
ZASCA 98; 2003 (1) SA 11 (SCA) (6 September 2002) .
the conduct of a person wh o is willingly moving his asse ts from one property to
another. The legal representatives addressed a letter to the first respondent on the
same date and dem anded that it desist with its act of spoliation .
[34] The facts point to another undeniable fact, that the applicant was at least in the
morning on 11 February 2025 in peaceful and undisturbed possession of the
property. On 10 February 2025 there were no security personnel on site. Neither
was the first respondent occupying the property. The applicant did not expect a visit
from the first and second respondent . It is to be viewed from objective evidence
that the second respondent ’s men were heavily armed, ostensibly to guard the
property once the second respondent gains occupation and control. Th rough their
conduct, the applicant was indeed dispo ssessed of th e property without legal
means being employed. I could point to much more facts, however, given the
nature of t he dispossession, which renders the matter quite urgent, I will stop here.
[35] Ultimately, I am satisfied that the applicant has succeeded to show that it was a
victim of unlawful spoliation and it must be grated the relief that it has asked f or.
Though it had been told to vacate the premises on account of the expir y of its
lease, the applicant had peaceful and undis turbed possession of the property up to
the fateful day. That is the deciding factor in spoliation matters . The fact that its
properties were still on site even on 12 February 2025 only points to the fact that
spoliation was partial, which should still afford the applicant relief in a case of this
nature.
[36] The costs of the application have to f ollow the results, and are to be bor ne by the
first and second respondents. With regard to the Municipality, it has not committed
any wrong, and its participation in the proceedings w as merely intended to provide
the court with information that court help it to determine the outcome. In the result,
there shall be no cost order against the Municipality .
Order
[37] I make the following order:
[a] The application is heard on urgent basis in terms of Rule 6(12)(b) of the
Uniform Rules;
[b] The first and second respondents are ordered to forthwit h restore the
applicant in possession of the property, being Erf 6[...] E[...] R[...] Extension
3, as it had it immediately prior to 11 February 2025;
[c] The first and second respondents shall pay the costs of this application
jointly and severally, the one payi ng the other to be absolved.
___________________
MOKGERWA MAKOTI
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION,
POLOKWAN E
APPEARANCE S:
HEARD ON : 13 FEBR UARY 2025
JUDGMENT DELIVERED ON: 18 FEBRUARY 2025
FOR THE APPLICANT: ADV L VAN GASS
KHA MBEEK T WINE & POGRUND ATTORNEYS
POLOKWAN E
FOR THE RESPONDENT: ADV M MONENE
ADV R MUSHIANA -SIGWAVH ULIMU
MPHELA MOTIMELE ATTORNEYS
POLOKWAN E