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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2024 -148094
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date: 17 March 2025
In the matter between:
LITTLE GRADUATES SCHOOL CC Applicant
and
K2023253684 (SOUTH AFRICA) PTY LTD Respondent
JUDGMENT
DE VOS AJ
[1] On 14 January 2025 the Court granted an order restoring the applicant to
possession of the premises from which they run a school. The full order appears at
the end of this judgment.
[2] These are the reasons for the order.
[3] The applicant is a school for children from pre -school to grade 7. The school has
been in existence for fifteen years. The respondent, as owner, and the school
entered into a lease agreement for premises for the school.
[4] The parties soon fell into disagreement about the performance of the agreement.
The owner accused the school of breaching the agreement and terminated the
lease. Mr Mothowamodimo, the director of the respondent, then changed the locks
to the gates and all doors, refused the learners and employees of the school access
to the school and removed the school’s cars with a tow -truck. The owner also,
effectively, locked the director of the school inside the premises.
[5] The effect of this is that the forty registered learners who attended the school were
deprived of attending th is school for the rest of 2024 and the new learners enrolled
for this year , are also without their school premises. In addition, the school’s ten
employees were left without employment.
[6] The school approached the Court seeking urgent relief under the mandament van
spolie. To be successful, the applicant need s to meet two requirements , first
undisturbed possession and second, unlawful deprivation of that possession.
[7] In relation to the first requirement, t he school pleads that it had undisturbed
possession. Specifically, it ran the school, full time, with forty children attending
school, for a month from 4 November until 4 December. It had the keys to the gate
and to the various doors within the school. On this basis, it submits it meets the
requirement of undisturbed possession.
[8] As to the second requirement, t he school pleads that it was dispos sessed by the
owner, when Mr Motowamodimo , on 5 December 2024 changed the locks of the
gate and the doors. As a result of this conduct, the school could not run anymore
and a bus had to be arranged to transport the children to another venue. On this
basis, the school submits it meets the second requirement of deprivation of that
possession.
[9] At the time of these events, the respondent’s attorney of record wrote multiple letters
to the applicant . These letters all convey the same central tenet: as the school had
breached the agreement the owner was entitled to its property. The owner did not
dispute that it changed the locks of the gate or the doors. The owner , whilst
disputing the details and the motivation, also does not dispute that its director, Mr
Mothowamodimo locked the director of the school in the property.
[10] It is clear the owner laboured under the misapprehension that it was entitled to evict
the school on the basis of its subjective belief that the school had breached the
lease agreement.
[11] This is not our law.
[12] It is not for a property owner to unilaterally determine that a lessee has breached an
agreement and evict the tenants . Such conduct amounts to self -help. One can
imagine the consequent uncertainty, disruption to public order and potential violence
if parties to an agreement could subjective determine that a lessee had breached a
contract and evict the lessee. It is a recipe for violence. To prevent such a
situation, eviction can only take place through a court process. It is a court of law
which must determine if the contract has been breached and what relief is to follow:
not one of the parties. This is what the rule of law requires.
[13] Even if the school was in possession through theft or fraud, it matters not. The
mandament protects against self -help, it aims at public order and demands that
possession be returned to the possessor – regardless of who has the right to
possess the property. That determination can be made by a court. The mandament
operates, by protecting the rule of law, by returning to the status quo, then and only
then, will the issue of who has the right to possess the property be determined. First
the rule of law is protected, then the contractual dispute can be solved: in a court of
law.
[14] At the hearing, perhaps recognising the fundamental dissonance between the
owner ’s conduct and the rule of law, the owner ’s counsel disputed that the school
ever had possession. Counsel for the owner invited the Court to draw a distinction
between possession and access. On this argument, the owner had access and not
possession. The owner submits that the school lacked physical control and did not
hold the property with some intention of securing a benefit for themselves. As such,
the mandament does not find application.
[15] The crux of the case is then for the court to determine whether the school had
possession between 4 November 2024 until 4 December 2024 or only access. Prior
to this period the school pleads it had limited access to the property to ready it for
the schooling to commence.
[16] At the hearing, counsel for the respondent denied that the school had been provided
with keys. This wa s the central basis on which the distinction between access and
possession was drawn. However, the court has regard to a letter written by the
respondent’s wife – his attorney which demands that: “All sets of keys to t he
premises must be handed to the landlord”. The letter also demands that the school
“remove all furniture” on the “vacation date”. The letter further demands that the
school make good on any damages to the property whilst they were “in occupation”.
In fact, there are multiple correspondence from the respondent’s attorney indicating
that the school must “vacate” the premises.
[17] These contemporaneous letters indicates that the school was in possession – even
on the owner’s version.
[18] The distinction sought to be drawn by the owner was presented as a factual one.
However, the facts indicate possession. It is common cause that the school was
running from 4 November to 4 December 2024. There is no dispute in this regard.
The Court has photos of children in school uniform standing in a row to kick a ball.
Behind them is a jungle gym set up for the children to play. They are kept in the
area by a low fence painted in the same playful colours as the jungle gym. The
children are in school uniform and standing in a row to play soccer. These photos
paint the picture which everyone accepts: the school was running as a school during
the relevant period. The school could only do this if it was in possession of the
premises.
[19] In addition, t he distinction between access and possession is curious as the
respondent’s reason for terminating the contract is that the school had commenced
the running of a school without authorisation. On the respondent’s version, the
applicant was running a school from the premises for a month. For this month, the
applicant was in possession.
[20] The owner’s attempt at drawing a distinction between access and possession –
assuming without deciding it is legally sound – is not borne out by the facts.
[21] The school has met the requirements of mandament van spolie. They are entitled to
have their possession returned. They also wished to obtain an interdict, as they
contend that whilst the mandament would return them to possession of the property,
the respondent’s conduct creates a reasonable apprehension of harm that they may
be evicted outside the confines of the rule of law in future. Based on the owner’s
conduct – this apprehension is reasonable and an interdict is to issue.
[22] The length of the interdict is to be addressed. The school requested a 3 month
interdict . The school indicates that it would obtain another premise within 3 months.
During these three months, they request protection to ensure they are not deprived
of possession whilst they find another school. The school was willing to limit the
interdict to three months. The Court is satisfied in granting this three month interdict.
This requires clarity. This is not an order for the eviction of the applicant with three
months ’ notice. The respondent can only evict the applicant with an order of court –
the three month’s period is the duration of the interdict .
[23] Lastly, a word on costs. The applicant has been successful and is therefore in terms
of the usual rule entitled to its costs. The applicant has sought punitive costs due to
the respondent’s conduct before and during the trial. Before the hearing the
respondent unlawfully evicted a school, threatening the schooling and employment
of several persons. This was done in conflict with our law and undermined the rule
of law. The respondent then, instead of confronting the error of its ways, doubled
down and fil ed an answering affidavit running to 467 pages with annexures. The
affidavit raised a host of unfortunate defences, including that the matter was not
urgent and – despite the filing of an answering affidavit and heads of argument – the
respondent contended that service had been defective. Lastly, the distinction the
respondent sought to draw was plainly not borne out by the facts.
[24] In these circumstances, a punitive costs order is appropriate.
Order
[25] The Court orders:
1. Application for condonation in terms of Rule 6(12) is hereby granted.
2. The respondent is to immediately restore to the applicant’s full access and use of
the preschool, portion 043 ERF 3[...], situated at 3[...] M[...] Street, Brooklyn,
Gauteng Province.
3. The respondent is hereby interdicted and restrained from unlawfully dispossessing
the applicant from the preschool, portion 043 ERF 3[...], situated at 3[...] M[...]
Street, Brooklyn, Gauteng Province for a period of 3 (three) months.
4. The respondent is to pay the costs of this application on a scale between attorney
and client scale, on scale B.
I de Vos
Acting Judge of t he High Court
Delivered: This judgment is handed down electronically by uploading it to the
electronic file of this matter on CaseLines. As a courtesy gesture, it will be e -mailed to
the parties/their legal representatives.
Counsel for applicant : JDB Themane
Instructed by: Agyei Maseko Attorneys
Counsel for respondent : PP Bindza
Instructed by : Mothowamodimo Inc Attorneys
Date of hearing : 14 January 2025
Date of order: 14 January 2025
Date of judgment : 17 March 2025