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: HCAA 10/2023
. (1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 7/5/25
SIGNATURE:
In the matter between:
Ndlovu Traditional Council First Appellant
Johannes Ledwaba N.O Second Appellant
Lesiba Ledwaba N.O Third Appellant
Department of Co -Operative Governance Fourth Appellant
Human Settlement and Traditional Affairs
All Other Unknown Person who have Illegally Fifth Appellant
Erected or Intend Illegally Erecting Fences or
Structures On stand Described as Stand No:
A[...] , Andries Park, Ga -Ledwaba
and
Modiegi Caven Masela Respondent
JUDGMENT
MULLER J:
[1] This appeal is with leave granted by Mthimkulu AJ on12 April 2023. The
application was not opposed by the fourth and fifth respondent when it was heard in
the urgent court. The notice of appeal, however, does not specifically state which of
the appella nts applied for, and were granted leave to appeal, although all the
respondents are cited as the appellants in the heading. For ease of reference the
parties will be referred to as they were cited in the application.
[2] It is important to point out early on that the fifth respondent was cited in the
notice of motion as "All other unknown persons wh o have illegally erected or intend
illegally erecting fences or structures on stand described as stand no: A[...] Andries
Park Ga -Ledwaba." It is the case of the applicant that the first, second and third
respondent allocated the abovenamed stand to the ap plicant. The particular stand
was thereafter allocated to another person who is not identified by the applicant in
the founding affidavit without the consent or knowledge of the applicant. That person,
who was allocated the stand is, however, identified in the answering affidavit as one
Joe Mdakane. There is no indication from the record before us that the papers were
in fact served on the mentioned Joe Mdakane.
[3] There is, in addition, no indication in the record how service was affected on
the collec tive "All other unknown persons who have illegally erected or intend
illegally erecting fences" cited as the fifth respondent. We were informed by counsel
for the applicant that service of the papers on the fifth respondent was affected by
the sheriff who affixed them at the stand in question. The question was raised by the
court whether the non -joinder of Joe Mdakane after his identity was revealed in the
answering affidavit is not determinative of the appeal as it is clear that he has a
direct and substan tial interest in the order that was sought and granted against the
fifth respondent. The appropriateness of the order granted against the fifth
respondent when the papers were not served on Joe Mdakane at all, is therefore
highly questionable. Counsel for the respondents immediately conceded that Joe
Mdakane should have been joined.
[4] Counsel for the applicant however, argued that service of the application was
duly effected in terms of the rules by affixing them at the stand and that it follows that
he acquired knowledge of the application. The argument is shortsighted and
unacceptable. His identification in the answering affidavit should have alerted the
applicant as to the identity of the (until then) unknown person to whom the stand was
allocated. Ne ither this individual nor any other member of the fifth respondent
opposed the application. It no doubt has to be taken into account that the applicant
approached the court on an urgent basis in terms of rule 6(12) but that fact did not
relieve the applica nt from the duty to ensure that effective service of the papers
comes to attention of whoever will be affected by the order sought. Service in terms
of rule 4(1) has not been effected by affixing the papers at an empty stand and, it
cannot simply be inferr ed by us, as urged by counsel for the applicant that the
papers came to the knowledge of Joe Mdakane. In the normal course of events the
applicant should have approached the court for directions in terms of rule 4(2) how to
cause effective service on an un identified group of persons at an empty stand.
Finally, on this aspect; even if it is accepted that service at an empty stand was
sufficient, the non joinder of Joe Mdakane after he was identified in the answering
affidavit is a vital flaw in the proceedi ngs.
[5] Furthermore, an order was also granted against the fourth respondent when
no order was sought against the fourth respondent in the notice of motion.
[6] Returning to the merits of the appeal. The issues to be determined is whether
the applicant ha s lost possession of the stand and secondly, whether it is competent
for a court grant the restoration of possession of property against first, second and
third respondents in a mandament van spolie application when it is common cause
that the first, secon d and third respondents were no longer in possession of the
despoiled immovable property, namely, stand No A[...], Andries Park, Ga -Ledwaba
Limpopo Province.
[7] It is undisputed that the applicant was allocated the above mentioned stand
by the first res pondent on or about 18 May 2020 in terms of a permission to occupy
permit.1 Pursuant to granting the PTO, possession of the stand was given to the
applicant who was in undisturbed possession of the stand until January 2023 when
the stand was allocated to J oe Mdekane without notice to the applicant that his right
of occupation in terms of the PTO issued to him has been withdrawn or has been
cancelled. This happened when the brother -in-law of the applicant informed the first,
second and third respondents that his brother in law (without mentioning his name)
has requested him to inform them that he is no longer in need of his stand. The first
second and third respondents accepted without verifying the truth of the statement
with the applicant that he wished to abandon the stand and they then allocated the
stand to Joe Mdakane without first obtaining the consent of the applicant personally.
(It later turned out that the brother -in-law referred to, is not the applicant, but another
brother -in-law.) Joe Mdekane too k occupation of the property and has erected a
perimeter wall around the stand.
[8] Counsel for the applicant, on the one hand, averred that re -allocation of the
stand to Joe Mdekane does not constitute a transfer of the stand to him as the stand
remained under control of the respondents by virtue of the Bantu Areas Land
Regulations.2 Counsel for the first, second and third respondents, on the other hand,
contended that restoration as such was impossible as they were not in possession of
the stand when the application was instituted and that Joe Mdakane (the fifth
respondent) was in fact in possession of the stand and has erected a wall along the
perimeter of the stand.
[9] It is appropriate, in m y view, to first consider whether Joe Mdakane was a co -
spoliator. The general principle was explained in Nino Bonino v De Lange :3
1 Hereinafter called "the PTO."
2 Regulation R188 of 1969.
3 1906 TS 120.
"It is a fundamental principle that no man is allowed to take the law into his
own hands; no one is permitted to dispossess a nother forcibly or wrongfully
and against his consent of the possession of property, whether movable or
immovable. If he does so, the Court will summarily restore the status quo ante ,
and will do that as a preliminary to any enquiry or investigation into t he merits
of the dispute.''4
[10] And in Mans v Marais5 the court explained that:
"A mandament van spolie is designed as a speedy remedy against a person
who has taken the law in his own hands, and who, without recourse to the
Courts, has dispossessed an other. Its object is merely to restore the status
quo ante the illegal action. It decides no rights of ownership; it secures only
that if such decision is required, it shall be given by a court of law, and not
effected by violence. If before the spoliation either party needed a legal
decision to establish its rights, he requires it just as much after, as before, the
order. He is in no better, and in no worse position than he was in before the
spoliation."6
[11] There is no dispute that the applicant was in possession of the stand when it
was allocated to Joe Mdakane. The applicant was unaware that his PTO has been
cancelled and that the stand was re -allocated to someone else. There is no
suggestion in the founding papers at all that the first, second and thi rd respondent
acted mala fide when they allocated the stand to Joe Mdakane nor that he is a co -
spoliator who acquired the stand in a mala fide transaction with the first, second and
third respondent, well knowing that the stand belonged to someone else. Counsel for
the applicant argued that he must have realized that the stand belonged to someone
because there was a fence ere cted on the stand. The presence of a fence on the
stand is not evidence to support the proposition that the first second and third
respondents acted unlawfully. Joe Mdakane was issued with a PTO by the authority
4 122.
5 1932 CPD 352.
6 356.
in charge who allocates stands for that comm unity. There was no reason for him to
suspect that they are acting unlawfully.
[12] Joe Mdakane in my judgmen t is a bona occupier of the stand that he acquired
from the first second and third respondents in the normal course of events, and prior
to the dat e that the application was launched.
[13] The intended purpose of a spoliation order is to prevent people from taking
the law in their own hands.7 In Administrator Cape and Another v Ntshwaqela and
Others8 it was explained that:
"An order to restore posses sion of a movable is generally performed by the
physical handing over of the article. In the case of an order to restore
possession of an immovable, on the other hand, there can in the nature of
things be no physical handing over. Such an order may be mand atory in part,
as where it requires the spoliator to vacate the property, or to procure that it
be vacated, or to hand over the keys to premises, or to remove fences or
other obstacles or to perform other acts require for the restitution of the status
quo. And it is prohibitory in part, requiring the spoliator to forbear from
preventing or hindering the spoliatus in resuming possession."
[14] Courts will not make orders that cannot be carried out. The principle is
embodied in the maxim lex non cogit ad impo ssibilia. In the context of the
mandament van spolie , impossibility is a factual issue. It must be shown that that
compliance of the order is impossible. Cameron JA i n Tswelopelo Non -Profit
Organization v City of Tswane Metropolitan Municipality9 stated:
"While the mandament van spo lie clearly enjoins breaches of the rule of law
and serves as a disincentive to self -help, its object is the interim restoration of
7 Jivan v National Housing Commission 1977 (3) SA 890 (W) 8968 -H.
8 1990 (1) SA 705 (A).
9 2007 (6) SA 511 (SCA).
physica l control and enjoyment of specified property - not its reconstituted
equivalent."10
[15] Factually, the stand was allocated to Joe Mdakane under a PTO bona fide
obtained at an arm length transaction. In order for the first, second and third
respondent to restore the stand to the applicant, the PTO issued to Joe Mdakane
has to be lawfully cancelled or be set aside by an order of court, even if they do act
under regulation R188 of 1969. The mandament van spolie is a possessory remedy.
It is aimed at the rest oration of the status quo ante as a precursor to a process
where the rights of the parties to the stand in dispute will be determined. It is
impossible for the first, second and third respondent to carry out the order to restore
possession of the stand if they are not in possession of the stand. As far as the order
relate to Joe Mdakane he was not shown on the facts to be a co -spoliator and he
was, in addition, not joined as a necessary party to the proceedings.
[16] There is no reason why the applicant sho uld not pay the cost. The application
was doomed to failure from the outset. The costs should follow the result. In the
result, and for the reasons set out above, the appeal should succeed.
ORDER
1. The appeal is upheld with costs.
2. The order of the court a quo is set aside and is replaced with the
following order:
"The application is dismissed with costs."
G.C MULLER
JUDGE OF THE HIGH COURT
10 Par 24.
LIMPOPO DIVISION, POLOKWANE
M. NAUDE -ODENDAAL
JUDGE OF THE HIG H COURT
LIMPOPO DIVISION, POLOKWANE
M. MANGENA
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
FOR THE APPELLANT : ADV T.P MOTLATLE
INSTRUCTED BY : HLM MAMABOLO ATTORNEYS
FOR THE RESPONDENT : ADV K. MOKOENA
INSTRUCTED BY : EK MOHALE ATTORNEYS
DATE OF HEARING : 02 MAY 2025
DELIVERED DATE : 07 MAY 2025