IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
Not reportable
CASE NO. 154/2024
In the matter between:
ANTHONIE CHRISTOPHER LOMBARD Applicant
and
FORT HARE UNIVERSITY First r espondent
MINISTER OF POLICE Second respondent
______________________________________________________________________
JUDGMENT
______________________________________________________________________
LAING J
[1] This is an application for a spoliation order regarding 13 head of cattle presently
being kept at the first respondent’s research farm, situated on the outskirts of the town
of Alice . If the spoliation order is granted , then the first respondent seeks, in turn, an
order interdicting the applicant from disposing of the cattle pending the conclusion of a
criminal investigation and any proceedings resulting therefrom.
Background
[2] The applicant is a cattle trader. On 1 Novem ber 2022, h e paid R 196,374 for the
purchas e of cattle from the first respondent (‘ UFH’) , purportedly represented by Mr Dirk
Potgieter. UFH subsequently delivered 36 head of cattle to Stanford Park farm, which
the applicant uses for grazing. Mr Potgieter pr ovided the applicant with removal
certificates . The applicant left in place UFH’s ear tags for the cattle so that they could be
identified for weighing and selling purposes. A year later, on 27 October 2023, an
employee of UFH, Mr Brian Mthembu , arrived at Stanford Park under the pretence of
buying cattle; he departed and returned in the company of employee s of the second
respondent (‘SAPS’)1 to remove the 13 head of cattle that form the subject of the
application. This was done without a warrant or any other form of authority . The cattle
are being kept at UFH’s research farm , Honeydale. Attempts made by the applicant or
his attorneys to secure the return of the cattle from the respondents have proved
fruitless.
[3] UFH explained that the intended sale of any of its cattle first requires approval
from an Animal Ethics Committee as well as a sub -structure of the Farm Committee.
The latter will finally approve the sale once satisfied that the cattle are not required for
research purp oses. UFH’s farm manager must then notify the rel evant auction eers or
livestock agents, upon which the cattle are sold by public auction. It was not normal for
cattle to be sold under a private transaction or without prior approval .
[4] Acting upon a suspicion that the farm manager, Mr Potgieter, was involved in the
unlawful sale of cattle , UFH instituted an investigation which resulted in his suspension.
On 27 October 2023, the acting farm manager, Mr Mthembu , learnt that cattle at
Stanford Park and bearing UFH’s ear tags were being sold to the public. This led to his
visit to the farm, accompanied by a Warrant Officer Simphiwe Zono , culminat ing in the
confiscation of the cattle . UFH alleged that, from its investigations, it appeared that Mr
Potgi eter had been selling cattle without the necessary approval ; this had also been
1 The abbreviation refers to the South African Police Services.
done in contravention of UFH’s policies, and at below market -related prices . Neither the
Farm Committee nor the Animal Ethics Committee had approved the sale of any cattle
to the applicant. This prompted UFH to lay a charge of stock theft . The SAPS
investigation is ongoing.
[5] For its part, SAPS confirmed that the cattle were removed from Stanford Park as
part of its investigation . To that effect, W/O Zono indicated that he had held a
reasonable suspicion at the time that the cattle had been stolen from UFH and that the
cattle would not remain on the farm if he waited to obtain a warrant or other form of
authority. He stated that arrests were imminent.
[6] In a lengthy reply, the applicant asserted that his prior dealings with UFH had
always been via Mr Potgieter , who had been vested , ostensibly, with the necessary
authority . The purchase price that he paid for the cattle in question was R 24.50 per
kilogramme for a weaner and R 1 8.00 per kilogramme for a calf; these were market -
related prices. Mr Mthembu had been present at the time of the transaction and had
recorded the mass of the cattle. The applicant conceded that the university generally
sold cattle by way of public auction but was adamant that it also engaged in private
sales, where in it was represented by Mr Potgieter .
Issues to be decided
[7] The main issue for determination is whether the applicant is entitled to a
spoliation order . This will depend, chiefly, on whether he was unlawfully deprived of
possession of the cattle. If the court refuses to grant the order, then that will be the end
of the matter; conversely, if the court grants the order, then it must determine whether
UFH i s entitled to an interlocutory interdict.
[8] A brief overview of the relevant principles follows.
Legal framework
[9] The nature of a spoliation order was described by the Supreme Court of Appeal
in Tswelopele Non -Profit Organisation and Others v City of Tshwane Metropolitan
Municipality and Others ,2 where Cameron JA remarked as follows:
‘The remedy originated in the canon law, and found its way thence into Roman -
Dutch law and modern South African la w. Under it, anyone illicitly deprived of
property is entitled to be restored to possession before anything else is debated
or decided (spoliatus ante omnia restituendus est ). Even an unlawful possessor -
a fraud, a thief or a robber - is entitled to the mandament’s protection. The
principle is that illicit deprivation must be remedied before the Courts will decide
competing claims to the object or property.’3
[10] Several years later, the Constitutional Court dealt with the subject in Ngqukumba
v Minister of Safety and Security and Others .4 The matter involved the confi scation by
the police , without a search -and-seizure warrant, of a motor vehicle of which the chassis
and engine numbers had been tampered with. The court confirmed that a spoliation
order was intended to prevent the taking of possession otherwise than in accordance
with the law , the underlying philosophy being that no -one should resort to self -help to
obtain or regain possession. The remedy applie d equally , irrespective of whether the
despoiler was an individual or a government entity or functionary.5 The court went on to
hold, per Madlanga J, that:
‘It matters not that a government entity may be purporting to act under colour of a
law, statutory or otherwis e. The real issue is whether it is properly acting within
the law. After all, the principle of legality requires of state organs always to act in
terms of the law. Surely then it should make no difference that in dispossessing
an individual of an object unlawfully, the police purported to act under colour of
2 2007 (6) SA 511 (SCA).
3 At paragraph [21].
4 2014 (5) SA 112 (CC).
5 At paragraphs [10] and [11].
the search and seizure powers contained in the Criminal Procedure Act . Non -
compliance with the provisions of the Criminal Procedure Act in seizing a
person’s goods is unlawful. This unlawfulness, plus the other requirements f or a
spoliation order (namely, having been in possession immediately prior to being
despoiled), satisfies the requisites for the order. All that the despoiled person
need prove is that –
(a) she was in possession of the object; and
(b) she was deprived of possession unlawfully.
…The obvious conclusion is that the mandament van spolie is available even
against the police where they have seized goods unlawfully. ’6
[11] The case law makes it clear that a spoliation order is indeed available to an
unlawful possessor . Illegal dispossession must first be address ed before a court can
decide questions of ownership or merely continued possession of the item in question.
[12] Turning to UFH’s counter -application , the prerequisites for an interlocutory
interdict are well -known and hardly need to be restated. An applicant must prove a
prima facie right, a well -grounded apprehension of irreparable harm if the interim relief
is not granted and the ultimate relief is eventually granted, a balance of convenience in
favour of the granting of the interim relief, and the absence of any other satisfactory
remedy.7
[13] The above principles comprise the basic legal framework within which the
present matter must be determined. They are applied to the facts of the case in the
paragraphs below.
Spoliation order
6 At paragraphs [13] and [14].
7 Setlogelo v Setlogelo 1914 AD 221. See, too, the discussion in DE van Loggerenberg, Erasmus:
Superior Court Practice (Juta, vol 2, 2ed, service 21, 2023), at D6 -1-26.
[14] The key aspect to be decided is whether the applicant was unlawfully deprived of
possession of the 13 head of cattle described in the papers. The parties referred to the
relevant provisions of the Criminal Procedure Act 51 of 1977 (‘CPA’) . Section 20 thereof
permits the state to seize anything which , inter alia , is concerned in or is, on reasonable
grounds, believed to be concerned in the commission or suspected commission of an
offence. Section 21 stipulates that a n item shall only be seized by virtue of a search
warrant , subject to certain exception s. Section 22 is especially relevant and provides
that:
‘A police official may without a search warrant search any person or container or
premises for the purposes of seizing any article referred to in section 20 –
(a) if the person concerned consents to the searc h for and the seizure of
the article in question , or if the person who may consent to the search
of the container or premises consents to such search and the seizure
of the article in question; or
(b) if he on reasonable grounds believes –
(i) that a search warrant will be issued to him under paragraph (a)
of section 21(1) if he applies for such warrant ; and
(ii) that the delay in obtaining such warrant would defeat the object
of the search.’
[15] From the papers, it cannot be disputed that SAPS, not UFH, dispossessed the
applicant of the cattle. Mr Mthembu merely accompanied W/O Zono to Stanford Park ;
the cattle were loaded onto a UFH truck at the instruction of SAPS and taken to the
Adelaide police station, whereafter they were delivered to Honeydale for safekeeping,
pending further police investigation.
[16] In dealing with the requirements indicated under section 22(b), UFH referred to
the decision in Nielson t/a Playtime Internet Café v Minister of Police and Another,8
where Mahalelo J observe d that :
‘It should be borne in mind that the question is not whether the applicant’s
alleged business operation was lawful or unlawful in order to claim the relief
under spoliation , it is whether the respondent at the time of execution of the
search and seizure did indeed have the reasonable belief, based on suspicion,
facts and evidence that a search warrant will be issued under the circumstances
if such facts are presented to a ma gistrate when applying for a search warrant
prior to a search and seizure and that the delay in obtaining such an order will
defeat the object of the search.’9
[17] The case law emphasises , however, that there must be reasonable grounds for
such a belief . It cannot be said that a reasonable belief exists merely because a police
official is of the view that he or she has such a belief at the time .10
[18] W/O Zono explained the basis for his belief in SAPS’s answering affidavit . The
cattle were removed for several reasons, inter alia : UFH had laid a charge of stock theft;
Mr Mthembu had requested W/O Zono to accompany him to a farm where it was
believed that cattle belonging to UFH were being kept; the cattle in question bore UFH
ear tags; the farm owner had informed W/O Zono that the applicant owned the cattle
and had already sold more than half of the herd; it was widely known that the applicant
sold cattle from Stanford Park to the public ; and if W/O Zono waited until after the
weekend to obtain a search warrant , then the cattle would not remain on the farm .
8 (12880/19) [2019] ZAGPJHC 269 (6 May 2019).
9 At paragraph [29].
10 Ndabeni v Minister of Law and Order and Another 1984 (3) 500 (D), at 511, where Didcott J cited with
approval the decision of Milne J in Watson v Commissioner of Customs and Excise 1960 (3) SA 212 (N) ,
at 216G -H.
[19] It would be difficult to deny that the reasons advanced by W/O Zono constitute
reasonable grounds to have underpinned his belief that he would have been issued with
a search warrant if he had applied . The requirements of section 22(b)(i) seem to have
been met. It is, however, the requirements of section 22(b)(ii) that are cause for
concern. To that effect, W/O Zono merely stated as follows:
‘It was Friday afternoon, and I had no reason to believe I would be able to obtain
a warrant for the removal of the cattle on Friday, 27 October 2023. I was of the
opinion that I would only be able to obtain a warrant on Monday, 30 October
2023. I was confident that a wa rrant would be issued had I had sufficient time to
request one, as there was strong evidence to suggest that the cattle belonged to
the University of Fort Hare and had been stolen.
…I thought that if I waited until I could get a warrant on Monday, 30 Octob er
2023, the cattle would have been removed or stolen .’
[20] Later, W/O Zono went on to reiterate that:
‘The cattle were located on a Friday, they bore the University of Fort Hare ear
tags, and they were being sold . I believed that if they were not removed
immediately, by Monday, which is the earliest I could have got a warrant, they
would have been removed or sold.’
[21] Crucially, the police official in question failed to explain why he believed that the
cattle would not have remained at Stanford Park over the weekend. There is no
evidence that Mr Mthembu was aware of any imminent intention on the applicant’s or
anyone else ’s part to have sold the cattle . His visit to the farm earlier on 27 October
2023 , under the pretence of being a potential buyer, would surely have persuaded the
applicant to have kept the cattle exactly where they were, in anticipation of a sale, rather
than spirit them away as counsel for UFH suggested. An added difficulty for the
respondents is that W/O Zo no failed to explain why he did not attempt to contact the
applicant at the time for a satisfactory account of his possession of the cattle .11 There is
also no indication why the police official could not have waited , at the very least, for the
return of the owner of the farm, Mr Elie Klopper, later that day, t o make further enquiries
before deciding that no search warrant was necessary.
[22] On the papers, there is simply no evidence from which to conclude that there
were reasonable grounds for W/O Zono’s belief that the cattle would not have remained
on the farm were he to have waited until 30 October 2023 to obtain a warrant. It cannot
be said that the requirements of section 22(b)(ii) of the CPA were met.
Interlocutory interdict
[23] The meaning of a prima facie right was addressed in the locus classicus ,
Webster v Mitchell ,12 where Clayden J held as follows:
‘[T]he right to be set up by an applicant for a temporary interdict need not be
shown by a balance of probabili ties. If it is “ prima facie established though open
to some doubt” that is enough…
The proper manner of approach I consider is to take the facts as set out by the
applicant , together with any facts set out by the respondent which the applicant
cannot dispute , and to consider whether, having regard to the inherent
probabilities, the applicant could on those f acts obtain final relief at the trial. The
facts set up in contradiction by the respondent should then be considered . If
serious doubt is thrown upon the case of the applicant, he could not succeed in
obtaining temporary relief, for his right, prima facie established , may only be
open to “some doubt”. But if there is mere contradiction, or unconvincing
explanation , the matter should be left to trial and the right be protected in the
11 In terms of section 2 of the Stock Thef t Act 57 of 1959, any person who is found in possession of stock
or produce in regard to which there is reasonable suspicion that it has been stolen and is unable to give a
satisfactory account of such possession shall be guilty of an offence .
12 1948 (1) S A 1186 (W).
meanwhile , subject of course to the respective prejudice in the grant or re fusal of
interim relief.’13
[24] This was modified to some extent in Gool v Minister of Justice ,14 where Ogilvie -
Thompson J stated:
‘With the greatest respect , I am of opinion that the criterion prescribed in this
statement for the first branch of the inquiry thus outlined is somewhat too
favourably expressed towards the applicant for an interdict. In my view the
criterion on an applicant’s own averred or admit ted facts is: should (not could) the
applicant on those facts obtain final relief at the trial . Subject to that qualification,
I respectfully agree that the approach outlined in Webster v Mitchell … is the
correct approach for ordinary interdict application s.’15
[25] UFH assert s that it has a prima facie right to the relief sought in terms of the
counter -application because it has a financial interest in the outcome of the pending
criminal investigation. The sale of the cattle was done without proper approval and was
contrary to its policies. Whereas UFH admits receipt of R 196,374 from the applicant, it
argue s that this was ‘far below market -related value’. SAPS alleges the large -scale theft
of cattle from UFH; its investigation into the facts is ongoing . The applicant , in contrast,
denie s any wrongdoing and point s out that he ha s always dealt with Mr Potgieter; he
also alleges , without substantiation , that the purchase price paid for the cattle was
indeed market related . Significant ly, he chooses not to disclose the price that he
received per kilogramme for subsequent sale s to third part ies.
[26] The degree of detail supplied by UFH in support of its asse rtions is not ,
admittedly, overly generous . It has not , for example, indicated why the price paid by the
applicant for the cattle was so far below market value . Similarly, SAPS has not disclosed
13 At 1189.
14 1955 (2) SA 682 (C).
15 At 688D -E.
much information about its investigation and the extent to which the applicant and Mr
Potgieter are implicated, although it can be surmised that this was done to avoid
undermining the criminal proceedings that could follow. All that i s necessary for UFH to
demonstrate , however, is that it ha s a prima facie right to the relief sought. Whether Mr
Potgieter had the requisite authority at the time, whether the sale contravened UFH’s
policies, whether there was collusion with the applicant to defraud UFH , whether the
price paid was market -related or not, are all issues that fall for later determination . The
allegations made by UFH, supported as they are by SAPS, are sufficient to demonstrate
a prima facie right to interdict the applicant from selling or disposing of the cattle ,
pending the outcome of the investigation . Considering the inherent probabilities, it can
and sh ould be held that UFH would obtain final relief based on the facts presented.
Although it cannot be said that UFH’s assertion of a prima facie right in relation to the
relief sought is not free of a measure of or at least some doubt, especially in the
absence of precise reference to the policies involved or comparative market values for
the cattle in question , the applicant has advanced no evidence to cast serious doubt
upon the facts that UFH has presented.
[27] Regarding the other requirements for interim relief, if the order sought in the
counter -application is not granted to UFH, then there is a strong likelihood that the
applicant will , sooner or later, sell or dispose of the cattle. He is a cattle trader . He has
already sold more than half of the herd that he purchased from Mr Potgieter in the
previous year. It is difficult to refute the contention that t he applicant’s sale of the
remaining herd to unknown third parties will result in severe financial prejudice for UFH
if it is ultimately found that the applicant purchased the cattle at far below market -related
prices . For as long as the cattle remain in the applicant’s possession , there is some sort
of security against UFH’s potential loss. Similar reasoning applies in relation to the
balance of convenience . If the spoliation order is granted, as the court is inclined to do,
and the cattle are returned to the applicant , then the prevention of their sale or disposal
can be accommodated without much difficulty. The same cannot be said for UFH if
interim relief is not granted . Finally, the counter -application was brought as alternative to
opposition to the main application; if such opposition proves unsuccessful, then, without
an undertaking from the applicant , UFH is left with no remedy to prevent the sale or
disposal of the cattle.
[28] Mention must be made, briefly, of the applicant’s argument that the relief sought
under the counter -application amount s to an anti -dissipation order . In Knox D’Arcy Ltd
and Others v Jamieson and Others ,16 the erstwhile Appellate Division indicate d that the
effect of such an order was to prevent a respondent from freely dealing with his or her
property, to which the applicant lays no claim. The latter is required to demonstrate that
the former is ridding him - or herself of funds or other assets with the intention of
defeat ing the claim s of creditors.17 That is not the situation here. The applicant is not
attempting to rid himself of cattle to which UFH has no claim, to frustrate payment of a
debt. The facts of the present matter do not give rise to the question of whether an anti-
dissipation order is available to UFH.
Relief and order
[29] The court, in the end, is persuaded that SAPS failed to meet the requirements of
section 22(b)(ii) of the CPA when W/O Zono and other police officials confiscated the
cattle . The spoliation ord er must be granted , subject to the stipulation of a reasonable
timeframe within which the cattle must be returned . Nevertheless , the court is also
satisfied that UFH has proved that it is entitled to the interim relief sought and that the
applicant must be interdicted from selling or disposing of the cattle, pending the
outcome of the ongoing criminal investigation. The relief cannot , however, be granted
indefinitely. It constitutes , potentially, a serious restriction on the a pplicant ’s right to the
use and enjoyment of his property if the investigation finds no evidence of collusion
between Mr Potgieter and the applicant to defraud UFH. For the latter to seek interim
relief until the conclusion of the investigation and the date upon which the National
16 1996 (4) SA 348 (A) .
17 See, too, Carmel Trading Co Ltd v Commissioner of South African Revenue Service and Others 2008
(2) SA 433 (SCA) . The above decisions were considered in this division by Bloem J in Masiza v Masiza
and Another [2017] JOL 38086 (ECG).
Prosecuting Authority (‘NPA’) decides not to institute, alternatively to abandon,
proceedings is excessive in the circumstances. The order must be tailored accordingly.
[30] Regarding the application for a spoliation order, t here is no reason why the
general rule must not be applied in relation to costs . The applicant is entitled to the
recovery thereof ; scale B will suffice. UFH sought no costs in relation to its counter -
application .
[31] Cons equently, the following order is made :
(a) in relation to the main application:
(i) the first respondent, alternatively the second respondent , is ordered to
return to the applicant within 48 hours the cattle bearing the following
ear tags :
(aa.) 21.94;
(bb.) 21.96;
(cc.) 21.98;
(dd.) 22.18;
(ee.) 22.06;
(ff.) 22.08;
(gg.) 22.04;
(hh.) 21.104;
(ii.) 22.16;
(jj.) 21.88;
(kk.) 21.100;
(ll.) 22.10; and
(mm.) 22.100 ;
(ii) the first respondent, alternatively the second respondent, is ordered to
do so by deliver ing the above cattle to the farm, Stanford Park, situated
in the district of Adelaide ;
(iii) the respondents are liable jointly and severally for payment of the
applicant’s costs, in the event of one paying the other to be absolved;
(b) in relation to the c ounter -application:
(i) the applicant is interdicted and restrained from selling or disposing of
the cattle described in paragraph (a)(i), above , pending:
(aa) the date upon which the criminal investigation instituted
under Alice CAS 130/10/2023 is concluded ;
(bb) the date upon which the NPA decides not to institute ,
alternatively to abandon , such criminal proceedings as may
arise from Alice CAS 130/10/2023 ; or
(cc) the date upon which any other competent court orders
otherwise ;
(ii) the order made in terms of paragraph (b)(i) shall, notwithstanding,
lapse after the expiry of six (6) months, calculated from the date
hereof;
(iii) the applicant is ordered to keep the above cat tle safe, well -fed, and in
good condition, pending the dates contemplated in paragraph (b)(i);
and
(iv) each party is ordered to pay its own costs.
_________________________
JGA LAING
JUDGE OF THE HIGH COURT
APPEARANCE
For the applicant: Adv Olivier
Instructed by: Mc Callums Attorneys
Office No. 1
Fidelity Building
87 High Street
MAKHANDA
Email: mike@mccallums.co.za
For the first respondent: Adv Cole S C
Instructed by: Godongwana & Partners Inc
2nd Floor
6 Stewart Drive
Berea
EAST LONDON
Email: loyisog@godongwana.co.za
c/o Mili Attorneys
MAKHANDA
Ref: Mr L Godongwana/sl/2024/11081
For the second respondent: Adv Sephton
Instructed by: The State Attorney
29 Western Road
GQEBERHA
Email: vanrooyenjh@saps.gov.za
Date heard: 28 November 2024.
Date delivered: 11 March 2025.