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IN THE HIGH COURT OF SOUTH AFRICA
(FREE ST ATE DIVISION, BLOEMFONTEIN)
In the matter between:
SEMPE MAKHABANE
THANDY MAKHABANE
MANTI MAKHABANE
NTHABISENG AGNES LEPILE
LEBOEA NOOSI
and
RAPELANG ORABELENG (PTY) LTD
[Registration No.: 2022/345676/07)
THE MINISTER OF DEFENCE AND MILITARY
VETERANS -REPUBLIC OF SOUTH AFRICA
THE SHERIFF OF THE DISTRICT OF LADYBRAND
WONDERHOEK FARMS (PTY) LTD Not Reportable
Case Number: 7132/2024
First Applicant
Second Applicant
Third Applicant
Fourth Applicant
Fifth Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
2
Neutral citation: Sempe Makhabane and others v Rapelang Orabeleng (Ply) Ltd
and others -Case No. 7132/2024
Coram: Grobler, AJ
Heard on: 27 February 2025
Delivered on: This judgment was handed down electronically by circulation to the
parties' representatives by email and released to SAFLII. The date and
time for hand-down is deemed to be at 11 :00 on 07 March 2025.
Summary: Spoliation proceedings are incompetent to secure
restoration of original possession from a bona fidei third
party possessor.
ORDER
1. The rule nisi is discharged with costs, the costs of counsel to be on scale B.
JUDGMENT
INTRODUCTION:
[1] The Applicants approached this court on 13 December 2024. They sought a
rule nisi calling upon all the Respondents to show cause why they should not
be ordered to restore possession to the Applicants of fifty-one cattle,
contending they were unlawfully deprived of possession of these on 6
December 2024.
[2] Significantly as against the First Respondent ('Rapelang') a separate order
was asked that it be ordered to immediately release the cattle to the
Applicants without any demand for counter performance for the release of
3
said cattle. This is significant because of what I say below, and suffice to say
for now that this relief obviously extended beyond the ordinary relief usually
sought in terms of the mandament van spolie.
[3] On 13 December 2024 the court granted the order for which the Applicants
prayed. Subsequently only Rapelang filed an opposing affidavit and the
return of the rule nisi served before me.
THE FACTS:
[4] Spoliation proceedings seek final relief. Thus, the Plascon-Evans' rule finds
application. I say at the outset that I have no reason to discard the Rapelang
version out of hand. There is no basis for such a finding. Of significance
also in the present case, I highlight the Applicants ' version as well. Unless I
could find that Rapelang was part of some grand, nefarious scheme to
commit the spoliation [ as the Applicants contend] and was given possession
simply to thwart possible spoliation proceedings, to my mind a spoliation
application was never on the cards.
[5] The First-, Second- and Third Applicants are siblings. Their father kept
livestock but passed away on 17 September 2022. He died intestate, his
estate has not been finalised and no executor has been appointed. The
Applicants state that they possess the cattle pending the finalisation of the
estate. I assume that they had possession of the cattle and I deal with the
matter from there. I have no reason to believe that they are mistaken.
[6] They state further that they were -together with the Fourth-and Fifth
Applicants -in free and undisturbed possession of a herd of cattle, which
they exercised through the Fifth Applicant. On 6 December 2024, soldiers in
the employ of-and acting within the course and scope of their employment
with the Minister of Defence and Military Veterans ('the Second Respondent'
or 'the Minister') had robbed the Applicants of their possession and when the
4
application was launched, they said the depravation was then continued
' ...... through the refusal of the First Respondent to restore our possession'.
[7] The Applicants contend the cattle were grazing on Municipal land when four
trucks filled with soldiers arrived in the vicinity of the herd. There were other
herders and cattle there as well, who at the sight of the soldiers abandoned
their herds and ran away. This was because -so the Applicants contend -
the soldiers were armed with machine guns.
[8] After some discussion with the Fifth Applicant, the soldiers loaded all the
cattle [ abandoned and in possession of the Fifth Applicant] onto the trucks
and transported them to the farm Rohallion, which they contended belong to
the Fourth Respondent ('Wonderhoek Farmsl Subsequently the cattle were
taken to Ladybrand and were then placed in possession of the First
Respondent.
[9] The Applicants attempted to negotiate the release and return of the cattle but
to no avail. They realised that they had to approach court. They contended
that the actions of the soldiers and after that, the First Respondent' refusal to
return the cattle amounts to spoliation.
[1 O] As an interposition thus, the Applicants' own version is that at the time of the
institution of the proceeding the First Respondent was in possession, but he
had received the cattle through the actions of the soldiers. The soldiers took
possession, took the cattle to the farm Rohallion and thereafter to the First
Respondent. Apart from unfounded statements of general grand conspiracy ,
no allegation is made that the First Respondent had acted in cahoots with
the soldiers, is acting in their interest or had acted as a co-spoliator.
[11] The First Respondent's answering affidavit reveals that Mr Tebogo
Motsetsele was appointed by the Mantsopa Local Municipality as the pound
5
master for the Ladybrand area on 22 May 2023. He stated that he operates
the pound under the name of Rapelang.
[12] His involvement generally as pound master in related matters is that
landowners in the area [private or governmental institutions] invariably find
cattle and .other livestock that do not belong to the landowner on their land.
This is apparently rampant at the South African border with the Republic of
Lesotho. Once a farm owner, South African Defence Force or the South
African Police on request of the landowner round up stock on the land in
question, the livestock gets delivered to the pound. There are two operating
pounds in the Free State Province. The pound master cannot refuse to
accept stock that has been impounded.
[13] On receipt of such livestock, the herd or the impounded animals get
registered onto a pound register, they are kept and fed, and owners of
impounded stock are allowed to attend to the pound to claim their property.
This all happens under the auspices of the Mantsopa Local Municipality.
[14] What invariably happens as well is that the owner of the land in question
provides a damages assessment, seeking compensation for lost grazing etc.
[15] Mr Motsetsele says that on 6 December 2024, he was telephonically
contacted by a member of the South African National Defence Force. This
person told him that they had taken possession of over one-hundred cattle in
the Wepener district, these need to come to his pound whereafter the stock
was delivered to him at the Mantsopa/Ladybrand pound and he issued
possession receipts. This happened on 7 December 2024.
[16] The next day, the owners of the impounded stock attended to the animal
pound to identify their livestock, which included Mr Leboea Noosi [the Fifth
Applicant]. The Applicants did not want to pay the pound fee and damages
assessment.
6
[17] He denied possession of any cattle that were found in the Applicants'
possession. That is because a large number of cattle had already been
removed from the pound from various other owners, and there was no form
of identification of the cattle left after other owners had taken ownership of
cattle belonging to them.
[18] He confirmed further that a pound release fee is payable for the release of
impounded stock and referred to two damages assessments submitted by
farmers claiming that the Applicants' cattle had grazed on their land. The
pound fees remained unpaid, and he denies -most strenuously -any effort
on his or anybody else's part to act against the Applicants in any unlawful
manner.
[19] The Replying Affidavit deals -in substance -with much concerning
Rapelang's apparent appointment , his right to retain possession etc. There
was no rejoinder affidavit filed. I do not deal with these in this judgment
because those facts are to my mind irrelevant. Rapelang operates at as the
pound for the Ladybrand area. Whether there is some form of error in its
appointment, or the fees that it charges etc are issues best kept for
vindicatory proceedings. I say why this is so later.
[20] The facts to my mind thus reveal that Rapelang was in bona fide possession
at the time when the application was launched, and it did not commit
spoliation. The only way I can thus find for the applicants on the facts of the
case, is if I find that notionally spoliation proceedings can restore possession
to an applicant where the object or thing is in possession of a bona fidei third
party.
SPOLIATION PROCEEDINGS GENERALLY:
7
[21] The kind of possession an applicant in spoliation proceedings needs to prove
is generally described as being of a peaceful and undisturbed nature.1 This
denotes objective control and a subjective mental element to derive some
benefit for oneself consequent to said possession.2 The lawfulness of
primary possession is irrelevant, as even unlawful possession is protected.
This is established law. 3
[22] De Jager's case states the position concerning possession as follows:
'What the court is doing is to insist on the principle that a person in possession of
property, however unlawful his possession may be and however exposed he may be
to proceedings , cannot be interfered with in his position except by due process of
law. '4
[23] An Applicant further needs to show only spoliation. That is the deprivation of
possession by means of wrongful and unlawful acts. Deprivation must
happen sans acquiescence and consent and may happen in numerous
unlawful ways. The absence of consent is the key because if consent is
genuinely and freely given, it negates the unlawfulness of the
1 Magadi v West Rand Administration Board, 1981 {2) SA 3452 (T) at 354 F.
2 Animus ex re commodum acquirendi.
Agha v Sukan, 2004 (3) All SA 421 (T) at 428 H -4310.
3 Nienaber v Stuckey, 1946 AD 1049 at 1055;
Magadi, supra, at 3540;
Vena v George Municipality, 1987 (4) SA 29 (C).
4 De Jager v Farah and Netstat, 1947 (4) SA 28 (W) at 35;
See also: Silberberg and Schoeman's The Law of Property, 51h Edition, Badenhorst et all, p. 293 and
the recordal of Prof. Van der Walt's 1983 THRHR 239; 1988 THRHR 292 articles, where the
learned Professor describes the protection of unlawful possession to the overriding purpose
of the mandament which, according to him, is the protection of public order against breaches
of peace. The protection of unlawful possession can, however, only be explained in light of
the character of the possessory remedy, where the rights of the parties are irrelevant.
8
dispossession .5
[24] There can of course also be no spoliation if the deprivation -even without
consent -is consequence to some lawful means of dispossession. A court
order springs to mind, as an example.
[25] As a 'general denial of the facts in issue' defence, a respondent can
successfully defend himself by showing that someone else had committed
the spoliation.6 The respondent may also -as is the case here under the
general defence of restoration being impossible -show that a third party has
acquired possession of the thing.7 There are conflicting judgments as to the
application of this defence, and I deal below with the tension and what I
believe is the correct approach.
THE FIRST RESPONDENT IN POSSESSION:
[26] Mr Cronje for the Applicants, submitted that on the facts of the present case,
spoliation proceedings were competent against the First Respondent
because Rapelang's possession is a simple continuation of the spoliation
performed by the soldiers. He referred me to an unreported decision of this
division in Khali v Abdulla.6 The facts of that case are not readily apparent
from the judgment, except to state that apparently the matter involved the
impounding of livestock at the behest of Messrs Jacobs and De Nett who
were the stated landowners. For unstated reasons the court found that the
mandament was applicable and ordered return as against the pound master.
Mr Cronje submitted that this case is authority for the proposition that a third-
5 Stocks Housing Cape (Pty) Ltd v Chief Executive Director, Department of Education and Culture Services,
1996 (4) SA 231 (C) at 240 C-D.
6 Pieter v Muller, 1973 (4) SA 126 (E) at 129 A -B.
7 Silberberg, op.cit. p. 304,
8 792/2014 Free State High Court, Bloemfontein, Case heard on 8 August 2014.
9
party possessor may be ordered under the mandament -such as a pound
master -to restore the possession of the original possessor.
[27] Khali's judgment is obviously correct if the court found that the pound
master's possession was mala fidei. But as this is not clear from the
judgment itself, reliance on the decision does not help. If the court's finding
was that it does not matter if possession by the pound master was bona -or
mala fidei, respectfully it was wrongly decided.
[28] Two decisions of this division appear at first blush to support Mr Cronje's
submission of general competency to order restoration of possession under
the mandament when the thing is in possession of a third party. In 1951,
Brink J in this court held in the case of Painter.
'Mr van Rhyn also submitted that the court would not order restoration of the
possession of the dwelling house because the respondent , acting as agent for his
wife, had placed another party in possession of it. He referred to the case of
Burnham v Neumeyer, which decided the court would not grant spoliation order where
the goods, which were the subject of the proceedings, had been alienated to an
innocent third party without any intention of defeating the proceedings. In the case
referred to alienation had taken place without knowledge that the proceedings were
being instituted. There is nothing in the respondent's affidavit which suggests that
Rautenbach, who was placed in possession of the house, is an innocent third party,
but even if he is, respondent does not allege that it would not be possible for him to
restore possession of the dwelling house to applicant and that he will not be able to
make the necessary arrangements to do so. '9
[29] It seems as if Brink J found thus because the learned Judge was of the view
-based upon Burnham's case -that alienation with the aim of defeating
spoliation proceedings (thus ma/a fide conduct and consequent possession)
would not protect the third party from an order. I have no difficulty with that
Secondly , the court opined that nothing served before the court factually to
suggest restoration of possession was wholly impossible, even if the
possessor were in bona fidei possession . This indicates that a spoliator must
9 Painter v Strauss, 1951 (3) SA 307 at 318 B -D (FS).
10
assert and show that either he or the bona fidei possessor cannot restore
possession. It equates to one party before court being obligated conclusively
to defend the position of another [ as if that party has got no say in the
matter]. and that in relation to the origin and continued right of possession,
which classically are irrelevant considerations in spoliation proceedings.
[30] Eighteen years later, De Villiers J wrote the Malan judgment. The learned
Judge cited inter alia Burnham's case10 , but decided to follow the contrary
authority of Painter in finding thus:
'Uit hoofde van bogemelde passasies wi/ dit voorkom of dit miskien gese kan word
dat die mandament van spo/ie soos ontwikkel en opgeneem is in ons gemenereg, so
uitgebrei het dat dit selfs beskikbaar geword het teen 'n persoon wat besit bona fide
van 'n spoliator bekom het. Maar hoe dit ookal sy, word dit nerens in die outoriteite
gese dat dit vir die rede nie meer beskikbaar is teen 'n spo/iator nadat hy van sy besit
ontslae geraak het nie. Uit die aard van die saal< sou so 'n stel/ing strydig wees met
die doelstelling van die mandament , naamlik om voornemend e spoliators te
ontmoedig om die wet in hut eie hande te neem. . . . . . . Na my mening is 'n hof
geregtig om 'n bevel te maak teen 'n spoliator vir terug/ewering van die besit van
gespolieerde eiendom al is hy nie meer in besit daarvan nie tensy, om een of ander
rede -bewys waarvan op die spoliator is -dit duidelik is dat dit onmoont/ik vir hom
sa/ wees om die hof se bevel uit te voer.' 11
[31] De Villiers J's approach is thus limited to one of the grounds Brink J
mentioned in Painter and that is if the spoliator showed that restoration of the
thing had become impossible. De Villiers J does not seem to have
expressed an opinion as to whether bona or ma/a tides play any part in that
possession. The court found that the mandament may still be instituted
against the spoliator even if it is showed that he or she no longer has
possession. Respectfully this seems contradictory to what the weight of
authority dictates on the point.
10 Burnham v Neumeyer, 1917 TPD 630;
Louw v Herman, 1922 CPD 252;
Chitiz v Loudon and another, 1946 WLD 375.
11 Malan v Dippenaar, 1962 (2) SA 59 (FS) at 65 G -H.
11
[32] In Jivan, Steyn J rejected the approach of both Malan and Painter's case.
The court found -and with reference also to Chitiz, and Burnham -as
follows:
'I associate myself with the positive attitude taken by Roper J, and this view of that of
De Villiers Jin Malan v Dippenaar quoted above. Without exhaustive reference to the
old authorities who are divided and who have no direct relevance to the point in
question, I am persuaded to support the view put forward by Bristow J and Roper J,
because it has been the operative law of the Transvaal for sixty years and because it
fits in with the overriding principle and purpose of the mandament van spolie: the
wrongful dispossession by a person taking the law into his own hands can promptly
be cured by an order against the spoliator to restore the goods in dispute to the
peaceful possession. A spoliation order against a party other than the spoliator is
logically beyond the scope of the purpose of the mandament to prevent persons from
taking the law into their own hands. Where possession has passed to a new
possessor who became such in good faith, the status quo ante cannot be restored by
remedial action against the disturber of the status quo. Unfortunately for the original
possessor, the dispute has at that stage moved from the realm of possessory
remedies to that of a vindicatory action. Delay on the part of the original possessor in
recovering his possession , especially after he is aware of the advent of a new
possessor in good faith, would, in my view, further exclude the right to such a
spoliation order. •12
[33] An analysis of Jivan reveals the court's approach isthat as long as the third
party's possession is bona fide, spoliation proceedings against a third-party
possessor is wholly incompetent.
[34] In Rossouw's case, Vos J in the then Cape Provincial Division decided to
follow Jivan's case and held:
'Die getuienis toon na my mening dat eiser die voertuig bona fide aan 'n derde
verkoop het. Weliswaar het mnr Foxcroft in sy argument gese dat hy nie die aspek
van bona tides toegee nie, maar ek meen die korrekte opsomming van en afleiding uit
die getuienis is dat dit 'n bona fide verkoping was. Derhalwe sou die hot nie in hierdie
omstandighede 'n spo/iasie bevel toestaan nie. Hierdie beginsel blyk uit Jivan v
National Housing Commission , 1977 (3) SA 890 (1.11 op 895 G -8960 en die gesag
waarna daar verwys word. In hierdie verband het mnr Foxcroft die hof na verskil/ende
gewysdes verwys vir die argument dat laasgenoemde beslissing nie korrek is nie.
Die argument was dat in Burnham v Neumeyer, 1917 TPD 630 daar obiter gese is dat
12 Jivan v National Housing Commission, 1977 (3) SA 890 (WLD) at p. 896 A-F.
12
in gepaste omstandighede daar nie 'n teruggawe ge/as word waar die eiendom bona
fide in die besit van 'n derde gekom het nie. Ek verskil. Ek meen dat daardie dicta
we/ rationes was. Ek meen ook met eerbied dat die redes wat in die Jivan saak gegee
word oortuigend en korrek is. '13
[35] Schippers JA for the minority in Monteiro14 referred to the authors of
Silberberg's and Schoeman's approach15 and held that transfer of
possession to a third party cannot imply that restoration will always per se be
impossible. The court held that where a third party has acquired possession
a spoliation order can still be granted, unless the spoliator proves that it is
impossible for him to give effect to the order. The court did not deal with the
difference of position on fideis and seem to have found that the defence is
always and broadly related only to a question of whether it is possible to
restore possession. The learned Judge of Appeal imbibed the Silberberg and
Schoeman approach, which accepts that the mandament is inapplicable if
the possessor is bona fidei
[36) Respectfully, I think the Malan decision is incorrect. And to the extent that
Painter also suggests that spoliation proceedings are competent against a
bona fidei third party to restore possession (or an order to compel restoration
against the spoliator, to the extent that he or she must do what is necessary
to restore possession to the original possessor) that decision is incorrect as
well.
13 Bank van die Oranje Vrystaat v Rossouw, 1984 (2) SA 644 (CPD) at p. 649.
See also Chopper Won< (Pty)Ltd v WRC Consultation Services (Pty) Ltd 2008 (6) SA 497 ©
14 JA Monteiro and Another v Diedericks, (2021) ZASCA 015 (2 March 2021).
15 Loe.cit at p. 305 where the learned authors wrote:
' .... It submitted that the approach in Painter v Strauss and Malan v Dippenaar is to be preferred.
Transfer of possession to a third party cannot imply that restitution will always per se be impossible .
In cases where the spoliator can regain possession without much trouble or delay the mandamant van
spolie should be granted. The bona /ides or ma/a fides of the spo/iator should therefore be irrelevant.
Bona and ma/a fides are only relevant when it comes to the possession of a third party as it is accepted
that the mandament van spolie can only be granted against a ma/a fide third party. In Raik v Roik,
(1993 (2) SA 617 (W)) the court refused restoration of jewellery which was in the possession of the
respondent's mother who acquired it bona fide."
13
[37] The distinction should first be made on the position of the spoliator as
against that of the bona fide third party, all vis a vis the original
possessor/applicant/plaintiff. The spoliator is not a conduit or agent for the
bona fidei third party's spoliation, for otherwise the third party becomes a
mala fidei possessor and co spoliator. Mala fide third parties no doubt have a
hand in the spoliation action, which makes such third parties co-spoliators.16
The principle here is that the person who has ordered or ratified an act of
spoliation is also deemed a spoliator.
[38] Indeed, in the case of bona fidei third party possession, there can
conceivably be little relationship between the spoliator and the third-party
possessor, that is not bona fidei and at an arm's length. Thus, the position
between the original possessor and the third party is not one caused by the
de facto possessor committing spoliation vis a vis the original possessor.
Simple logic then dictates that the original possessor cannot proceed against
the bona fidei possessor on the mandament, because in that context there
was no spoliation by the ultimate possessor17.
[39] Cases such as Malan and Painter seeks to avoid this anomaly, by notionally
suggesting that if the original spoliator can achieve possession again form
the bona fidei third party, an order may be granted against the spoliator and
an obligation to do what is necessary to regain possession from the bona
fidei third party and in order to restore possession to the original possessor.
In effect thus the spoliator needs to attend and sort out whatever right the
bona fidei third party has to possession.But that is a question that is wholly
irrelevant to matters of spoliation, and once again involves irrelevant
considerations because the actual de facto possessor can thus in effect
16 Administrateur Cape and Another v Ntshwaqela and Others, 1990 (1) SA 705 (A) at 718 G -719 A.
17 Pieter v Muller supra at 128 D, 129 B
14
defeat the mandament by asserting a right to possession. Indeed, this model
pontificates that the bona fidei third party may assert his or her right to
possession against the spoliator, but not against the original possessor.
[40] The ambit of the enquiry is so extended to well beyond what the mandament
entails, because the order against the spoliator must consider what the rights
of the bona fidei third party are to hold on to possession. Ironically in this
context then, it is the spoliator who must show that the right of retention by
the bona fidei third party is so strong that it is impossible for him or her to
restore that possession. It seems to me that this creates somewhat of a
mess.
[41] To my mind, the mandament cannot apply to the possession of a bona fide
third party. And I do not think that that a spoliator can be compelled to
restore possession when he or she has in good faith since parted with
possession. In such instances the rei vindicatio must be instituted.
[42] In the present case Rapelang is a bona fide third-party possessor. That
means that spoliation proceedings were not competent as against it. Prayer
2 highlighted above cannot thus succeed as well, because the Applicants
cannot ask the court to deal with the entitlement on the part of Rapelang to
retained possession and the charging of fees, when they chose to institute
spoliation proceedings.
CONCLUSION:
I make the following order:
1. The rule nisi is discharged with costs, the costs of counsel to be on scale
B.
On behalf of the Appellants;
On behalf of the First Respondent: Adv. PR Cronje
On instruction of
Barnard & Venter
c/o Lovius Block
BLOEMFONTEIN
Adv. Stian Janse van Rensburg
On instruction of:
EDJ Attorneys
BLOEMFONTEIN 15