IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number : 2025 -001463
In the matter between:
MARK ABRAHAMS N.O.
(in his capacity as Chairman of the Squash Section of
the Villager Football Club)
First applicant
ANDRE NAUDE N.O .
(in his capacity as a member of the Squash Section of
the Villager Football Club)
Second applicant
CHRISTOPHER MITCHELL N.O.
(in his capacity as a member of the Squash Section of
the Villager Football Club)
Third applicant
PATRICIA SWART N.O.
(in his c apacity as a member of the Squash Section of
the Villager Football Club)
Fourth applicant
WARREN FOX N.O.
(in his capacity as a member of the Squash Section of
the Villager Football Club)
Fifth applicant
MELISSA ROSSOUW N.O. Sixth applicant OFFICE 0FTHECHIEF JUSTICE
REPUBLIC OF SOUTI I AFRICA
(in his capacity as a member of the Squash Section of
the Villager Football Club)
ANITA ROSSOUW N.O.
(in his capacity as a member of the Squash Section of
the Villager Football Club)
Seventh applicant
GEORGE KALLIGIANIS N.O.
(in his capacity as a member of the Squash Section of
the Villager Football Club)
Eighth applicant
and
PIET GELDENHUYS N.O.
(in his cap acity as trustee for the time being of
Villager Football Club)
First respondent
ANTON COOSNER N.O.
(in his capacity as trustee for the time being of
Villager Football Club)
Second respondent
DYLAN KEETING N.O.
(in his capacity as a member of the Club Committee
for the time being)
Third respondent
GERARD PEDERSEN N.O.
(in his capacity as a member of the Club Committee
for the time being)
Fourth respondent
KIRK GAINSFORD N.O.
(in his capacity as a member of the Club Committee
for the time being)
Fifth res pondent
PATRICK MAILE N.O
(in his capacity as a member of the Club Committee
for the time being)
Sixth respondent
AURELIA FORBES N.O.
(in his capacity as a member of the Club Committee
for the time being)
Seventh respondent
CRAIG SEALE N.O.
(in his capacity as a member of the Club Committee
for the time being)
Eighth respondent
ALAN PAYNE N.O.
(in his capacity as a member of the Club Committee
for the time being) Ninth respondent
REASONS DELIVERED ON 5 MARCH 2025
VAN ZYL AJ:
Introduction
1. On 31 Ja nuary 2025 I granted an order in the following terms in an urgent
application “to restore the applicants’ possession of the squash facilities ” at
the Villager Football Club in Claremont :
1.1 The applicants’ non -compliance with the provisions of the Uniform
Rules of Court relating to time periods, forms and service is
condoned, and this application is heard as one of urgency in terms
of Rule 6(12).
1.2 The application is dismissed on the basis that the applicants have
failed to establish the type of possession ent itling them to invoke the
mandament van spolie .
1.3 The applicants in their personal capacities, joint and severally, the
one paying, the other to be absolved, s hall pay the respondents’
costs on the scale as between party and party, including counsel’s
fees taxed on Scale B.
2. The respondent s disputed the issue of urgency , but I was of the view that ,
given the intervening December holiday period, the matter was su fficiently
urgent to warrant a decision on the merits . It was also clearly in the interest
of the Club and its members that some clarity be given as to the applicants’
position in the particular circumstances of the matter .1
3. As is apparent from the order itself, I was of the view that the mandament van
spolie was not available to the applicants, given the nature of the possession
that they were seeking to protect.2 These are the reasons for my conclusion
in this respect.
The underlying principles
4. It is trite that the purpose of the mandament van spolie is to protect
possession without having first to embark upon an enquiry, for example, into
the question of the ownership of the person dispossessed. Possession is an
important juristic fact because it has legal consequences, one of which is that
the party dispossessed is afforded the remedy of the mandament in addition
to remedies such as interdict or a possessory action.3
1 See t he app roach in Tau Mining Contractors (Pty) Ltd v Aveng Moolmans (Pty) Ltd and
another [2024] ZANCHC 103 (1 November 2024) at para [23].
2 In the answe ring papers the respondent disputed the applicants’ locus standi , because they
were no longer members of the Club. The issue of standing is interlinked with whether th e
applicants were entitled to invoke the mandament at all, and I therefore do not deal with it
separately.
3 Shoprite C heckers Ltd v Pangbourne Properties (Pty) Ltd 1994 (1) SA 616 (W ) at 619E -F.
5. The requirements for obtaining of a mandament van spolie are well -known:4
“The m andament van spolie is directed at restoring possession to a party
which has been unlawfully dispo ssessed. It is a robust remedy directed at
restoring the status quo ante, irrespective of the merits of any underlying
contest concerning entitlement to posse ssion of the object or right in issue;
peaceful and undisturbed possession of the thing concerned and the unlawful
despoilment thereof are all that an applicant for a mandament van spolie has
to show. ”
6. The mandament ’s focus is thus on possession, not owne rship or the right to
possess. It seeks to preserve the status quo ante and prevent resort to sel f-
help. It is a remedy to preserve orderly judicial process and does not secure
substantive rights. To succeed, the applicant must prove two requirements:5
6.1 First, peaceful and undisturbed possession at the time of
dispossession: Possession is established by physical control and
the intention to possess.
6.2 Second, unlawful deprivation of possession by the respondents:
Spoliation occurs when dispossession happen s without the consent
of the possessor, regardless of how it is effected (for example, by
force, d eceit, or stealth).6
7. Although the mandament van spolie originally protected only the physical
possession of movable or immovable property, the remedy has bee n
extended to provide a remedy to protect so -called "quasi -possession" of
certain incorporeal rights, such as those of servitude.7 It is, however, well
settled that not all incorpo real rights can be the subject of spoliation.
4 Van Rhyn and others NNO v Fleurbaix Farm (Pty) Ltd 2013 (5) SA 521 (WCC) at para [7].
5 On a balance of probabilities. See Yeko v Qana 1973 (4) SA 735 (A) at 739E -G.
6 Stocks Housing (Cape) (Pty) Ltd v Chief Executive Director, Department of Education and
Culture Services, and others 1996 (4) SA 231 (C) at 2 40B-D.
7 Bon Que lle (Edms) Bp k v Munisipaliteit van Otavi 1989 (1) SA 508 (A) at 514D -516E.
8. The Supreme Court of Appeal has confirmed8 that the mandament van spolie
does not have a catch -all function to protect the quasi-possessio of all kinds
of rights , irrespective of their nature. The mandament is not the appropriate
remedy where contractual rights are in dispute , or where specific
performance of contractual obligations is claimed. Its purpose is the
protection of quasi -possessio of certain rights.
9. Consequently, the n ature of the professed right, even if it need not be proved,
must be determined (or the right must be characterised ) to establish whether
its quasi -possessio is deserving of protection by the mandament. Possession
of mere personal rights (or the exercise of personal rights ) is not protected by
the mandament .
10. The S upreme Court of Appeal has thus held that wh ere an order is sought
essentially to compel specific performance of a contractual right to resolve a
contractual dispute, the mandament is not available ,9 and there is no
authority for an extension of the remedy to such cases .10 The rights that flow
from a contractual nexus between the parties are insufficient for the purposes
of the mandament, as the y are purely personal, and a spoliation order, in
effect, would amount to an order of specific performance in proceedings in
which a respondent is precluded f rom disproving the merits of the applicant's
claim for possession .11
11. Moreover , the mandament protects only possession , and not access.12
12. A spoliation order is a final order, and the degree of proof and the onus on the
applicant remain unchanged:13
8 See, for example, First Rand Ltd t/a Rand Merchant Bank and another v Scholtz NO and
others 2008 (2) SA 503 (SCA) at para [13].
9 Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA) at para [14 ]; and see Eskom
Holdings SOC Ltd v Masinda 2019 (5) SA 386 (SCA) at paras (14) and [22].
10 Telkom SA Ltd v Xsinet (Pty) Ltd supra at para [14].
11 Eskom Holdings supra at para [22].
12 De Beer v Zimbali Estate Managem ent Association (Pty) Ltd and another 2007 (3) SA 254
(N) at para [54].
13 Chopper Worx (Pty) Ltd and another v WRC Consultation Services (Pty) Ltd 2008 (6) SA 497
(C) at para [12].
“Where a final order is sought in an application and there are disputes of fact
on the papers, then the m atter can be resolved on the facts stated by
respondent together with the admitted facts in the applicant's affidavits… In
the first paragraph of the headnote in the case of Nienaber v Stuckey 1946
AD 1049 , the test is set out as follows:
‘Where the applicant asks for a spoliation order he must make out not only a
prima facie case, but must satisf y the Court on the admitted or undisputed
facts, by the same balance of probabilities as is requir ed in every civil suit, of
the facts necessary for his success in the application .’”
13. For the purposes of the present matter, i t is further well settled that the
constitution of a voluntary association is a contract entered into by its
members. The relationship between a voluntary association and its members
is thus contractual in nature. 14
The applicants seek to protect personal rights
14. There are many accus ations and recriminations on the papers but the
background to this matter is essentially common ca use. It is not in dispute
that since 15 January 2025, the Club's squash facilities have been open and
accessible to all members of the Club in good standing.
15. The applicants used to be members of the Club’s committee (established
under the Club’s constitution as it stood at the time) that managed the
operations of the Club ’s squash section, until they were suspended as Club
members in November 2024, and subseq uently lost their respective
memberships at the Club . The applicants say that the act of spoliati on
occurred when the respondents locked the squash facilities on 19 December
2024, and refused to let the applicants have access thereto.
14 Natal Rugby Union v Gould 1999 (1) SA 423 (SCA) at 440F -G: “The union is a voluntary
association. On long standing authority the constitution of such a body is a contract entered
into by its members. Whether Parkinson's having remained chairman vitiated his election
must therefore be determined by reference to the terms of th at contract.” See also Mount
Edgecombe Country Club Estate Management Association II (RF) NPC v Singh and others
2019 (4) SA 471 (SCA) at para [19].
16. The loss of members hip came about as follows. On 4 November 2024 a
Special General Meeting of the members of the Club was held, at which a
new constitution was duly adopted. The applicants deny that the new
constitution was validly adopted. On the same date, the Club's exe cutive
committee took a decision to suspend the applicants' respective
memberships of the Club. On 19 December 2024 the executive committee
took a further decision not to renew the memberships of the first to fourth
applicants. A further decision was taken by the executive committee on 6
January 2025 not to renew the memberships of the remaining applicants.
The validity of these decisions is in dispute.15
17. It is common cause that the Club is a voluntary association and, i n terms of
the Club's constitution, only members of the Club are entitled to the use of
and access to the Club's facilities, including the squash facilities. Non-
members do not enjoy such rights. Consequently, when the applicants'
respective memberships were not renewed, they lost any enti tlement to the
use of and access to the Club's squash facilities .
18. It does not assist the applicants to say that because they contest the validity
of the new constitution and of the decisions to suspend them and not to
renew their memberships of the Club , they "regard themselves" as members
of the Club . They are, as a fact, no longer members of the Clu b.
19. The nub of the matter is whether the· applicants have established, on the
basis of undisputed facts, that they were in possession of the Club's squash
courts at the relevant time, that is , prior to being deprived thereof because of
the loss of their respective memberships of the Club.16
20. The applicants argue that they do not have to prove that they have a right to
15 I express no view on the merits of the applicants’ loss of membership because it is not
necessary and, in any event, is an issue for another forum, such as a court considering an
application for judicial review, should the applicants decide to launch such an application in
due course .
16 Pangbourne Properties supra at 621I-J and 623E -F.
possession or that their possession was or w ill be lawful. In the current matter
this would mean that the disputes relating to whether the app licants remain
members of the Club are irrelevant for the determination of the application.
21. As a basic statement of the law in relation to spoliation applica tions generally
this is undoubtedly correct,17 but w hat the applicants seek to ignore is the
nature of the “possession” that the y wish to protect in the particular
circumstances of this matter . They are asking the Court to disregard the fact
that the right of access to the Club's facilities is an incident of membership
and arises solely because of the contract that exists between the Club and its
members (that is , the constitution).
22. Consequently, the rights associated with membership (including access to the
Club's facilities) are purely contractual in nature. The rights are personal in
nature. What the applicants are seeking is thus not the restoration of
possession , but specific performance of what they contend are their
contractual rights. It is clear from the authorities referred to above that such
relief falls outside of the ambit of a spoliation order.
23. The applicants argue that they have specifically pleaded a loss of their
physical possession of the squash facilities. For this reason, they say tha t
the fact that an order restoring such possession would effectively restore their
membership rights is incidental and of no consequence.
24. This is, however, not the state of the law. The applicants are seeking to
disregard the contractual position of the parties , and are asking the Court to
assume that they might have no contractual rights at all to a ccess the Club's
squash courts, but are nevertheless entitled to claim the benefits of
17 The applicants re ly upon Ivanov v North West Gambling Board and others 2012 (6) SA 67
(SCA) at para {25] (in volving the seizure of gambling machines and equipment); Yeko v
Qana 1973 (4) SA 735 (A) at 7 39E-F (involving the possession and occupation of
business premises (wit h movables) from which the respondent had been trading) ; Mutale
and another v Forte and others [2021] ZAGPJHC 573 (19 October 202 1) at paras [12]-
[13] (involving the occupation of residential property) ; and Lottering v Palm 2008 (2) SA
553 ( O) at 555 J-556A (involving the respondent’s building of a wall on a portion of land
in the applicant’s possession) .
membership . The mere fact that the applicants might or might not have h ad a
right, derived from a contract with the Club, to make use of and even manage
the Club's squash facilities as part of a subcommittee under the old
constitution , does not amount to possession for the purposes of establishing
an entitlement to the mandam ent van spolie because the mere right to use
property does not amount to possession :18
“The mere f act that the applicant might or might not have had a right,
derived from a contract which it entered into with the respondent, to
make use of the parking area in question, including the parking bays to
be found in the designated area, did not, in my view, amount to a
'possession', as envisaged in the authorities, of such designated area
for the purposes of establishing an entitlement to the mandament van
spolie . …
… In the present case the applicant asks for an order ordering the
respondent to supply wate r to him. The applicant has never had
possession of the water. He cannot therefore found his claim on loss of
physical possession. However, it has been held t hat also "the
possession of incorporeal rights is protected against spoliation" … In
truth the mandament van spolie is not concerned with the protection or
restoration of rights at all. Its aim is to restore the factual possession of
which the spoliatus has been unlawfully deprived. The question of the
unlawfulness of the spoliatus' possession is not e nquired into at all . . .
… If the protection given by the mandament van spolie were to be held
to extend to the exercise of rights in the widest sense then
supposedly rights such as the right to performance of a contractual
obligation would have to be included - which would be to extend the
remedy beyond its legitimate field of application and usefulness . …
It seems to me that, superficially attractive as Mr Kuschke
SC's forceful argument may be in regard to the question of spoliation,
it amounts to no mor e than an attempt by the applicant, under the
guise of an alleged spoliation, to enforce rights which it claims to have
18 See the discussion in Pangbourne Properties supra at 622C -623G. Emphasis added.
in terms of its contract with the resp ondent in relation to the designated
area. It does not assist to seek to disregard the contractual position of
the parties and to assume, for the purposes of the spoliation argument,
that the applicant might have no contractual rights at all to occupy the
designated area, but yet be entitled to claim the benefits of a spoliation
order. This to my mind only serves to confuse the true issue…. ”
25. The position is clearly illustrated, too, by t he discussion in Blendrite (Pty) Ltd
and another v Moonisami and anoth er:19
“[19] The crisp issue in both the court of first instance and on appeal in the
present matter is thus whether the prior access to an email address and
company network and/or server amounted to quasi -possession of an
incorporeal which qualified for pr otection by a spoliation order . The case most
closely resembling the present one is this court's d ecision in Telkom SA v
Xsinet (Pty) Ltd. In that matter, the appellant disconnected the respondent's
telephone and bandwidth systems when a dispute arose as to whether the
respondent owed money for a service. This court held that the receipt of the
telecommunications service arose from a personal right in contract. The use
of the bandwidth and telephone service was not an incident of possession of
the premises from which the respondent operated. The appeal against the
spoliation order succeeded and the ord er was set aside.
[20] In the present matter, the prior use of the email address and server was
not an incident of possession of movable or immovable property on the part
of the first respondent. This was not even alleged. The first respondent did
not possess any movable or immovable property in relation to his erstwhile
use of the server or email address. Any entitlement to use the server and
email address is wrapped up in the contested issue of whether the first
respondent remains a director of Blendrite, and might relate to the terms of
his contract of employment. It is a personal right enforceable, if at all, against
Blendrite . I can see no basis for disting uishing the present matter from that
19 2021 (5) SA 61 (SCA) at paras [19] -[20]. Emphasis added.
of Telkom, by which we are bound unless we are of the view that it is clearly
wrong and requires to be set right. For the reasons aforesaid that decision is
consonant with prior jurisprudence and correct. The first resp ondent's prior
use did not amount to quasi -possession of incorporeal property. It is therefore
not protectable by way of the mandament. As such, the court of first instance
erred in granting spoliatory relief. ”
26. In the present matter, the applicants’ use a nd possession (or control, as they
put it) of the squash facilities are “ wrapped up in the contested issue ” of
whether their memberships of the Club were validly terminated. These are
personal rights, enforceable, if at all, against the Club.
27. As indicate d, too, the mandament protects possession, not access.20 The
applicants are, in truth, seeking to have their access to the squash facilities
restored. The fact that they wish to have access because they – as they
argue – need to perform various administra tive and maintenance services in
relation to the squash facilities at the Club – does not change the position. It
therefore does not assist them to argue, as they do, that they require
restoration of control of (“ and not so much access to ”) the squash fac ilities.
The applicants shared access to the facilities with all members of the Club
28. There is a further hurdle in the applicants’ way.
29. To be protected by the mandament possession need not be exclusive,21 but it
has been held22 that where multiple parties have access, the nature of the
possession is watered down to such an extent that it ceases to be the kind of
possession that is required for purposes of the mandament .
30. This is so because the real purpose of the mandament is to prevent breaches
20 De Beer supra at para [54].
21 Pangbourne supra at 620E -F.
22 See De Beer supra at para [54].
of the peac e.23 If someone is in exclusive possession and exercises such
possession, then deprivation thereof may lead to a breach of the peace but
no such breach would in the ordinary course of events take place where a
large number of persons have access, rather tha n possession, of the property
in question.
31. The remarks in De Beer v Zimbali Estate Management Association24 are
apposite in the present matter in relation to the rights of access by members
of the Club:
“Although possession can be shared, the cases relati ng to the joint
possession of keys, illustrate that the access to keys for two or more
real posses sors is intended to be to the exclusion of others. If the
alleged possession by applicant to the whole of the Zimbal i estate,
was to be to the exclusion of th e real owners I would have more
sympathy for her .”
32. It is common cause that all members of the Club, in particular members of the
Club's squash section have access to the Club's squash facilities. The
applicants do not allege that they ever had exclusive use of or access to the
Club's squash facilities.
33. Viewed in its proper context , the applicants’ situation in the present matter is
manifestly not one in which the mandament can come to their rescue . The
applicants have not establish ed the requisite poss ession entitling them to
relief by way of the mandament van spolie :25
Conclusion
34. In essence , this application relates to a dispute about the control of the
squash section of the Club. It is not about regaining possession of the Club's
23 See Ngqukumba v Minister of Safety and Security and others 2014 (5) SA 112 (CC) at para
[12].
24 De Beer supra at para [56].
25 Pangbourne Properties supra at 623F -G.
squash facilities. What the applicants are seeking is the restoration of their
membership rights and the incidents o f membership , with the privileges and
benefits that such a position would afford them . They seek to enforce rights
which they claim to have in terms of a con tract (whether the new or the old
constitution) with the Club in relation to the Club's squash facilities.
35. These rights , in my view, form part of the category of “possessio n” that
cannot be obtained through the mechanism of the mandament van spolie.
On th e aut horities referred to above, the applicants are as a matter o f law not
entitled to a spoliati on order to enforce what is in t ruth a dispute about
whether the applicants are entitled to specific performance of their alleged
contractual rights.
Costs
36. There was no reason why costs should not follow the result.
37. Each of the parties sought costs on the scale as between attorney and client (the
applicants essentially because they had attempted, unsuccessfully, to negotiate
with the respondents prior to the institution of this application, and the
respondents because they regarded the case as being with out merit from the
outset) , but I did not regard th e matter as justifying punitive costs. In the
exercise of my discretion under Rule 67A I was of the view t hat the applicants
should pay the respondents’ costs on a party and party scale, with counsel’s
fees taxed on Scale B.
Order
38. For these reasons, I granted the order referred to at the outset.
___________________________
P. S. VAN ZYL
Acting judge of the High Court
Appearances :
For the applica nts: Mr C. Bosch , instructed by De Klerk & Van Gend I nc.
Attorneys
For the respondent s: Ms M. Adhikari , instructed by Werksmans Attorneys