IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO : 2025 -054421
In the matter between:
AFFIRM MANUFACTURING SERVICES (PTY) LTD Applicant
T/A ROTOTANK
and
DASEL PROPERTIES (PTY) LTD First respondent
MARTHA MARIA SPEED Second respondent
DATE OF JUDGMENT : This judgment is issued by the Judge whose name is reflected herein
and is submitted electronically to the parties/their legal representatives by email. The judgment
is further uploaded to the electronic file of this matter on Caselines by the Judge’s secretary .
The date of the judgment is deemed to be 23 May 2025.
JUDGMENT
Khashane Manamela , AJ
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
23 May 2 025
Date K. La M Manamela
-
2
Introduction
[1] Affirm Manufacturing Services (Pty) Ltd trading as Rototank (‘Rototank’), the
applicant, sought urgent relief by way of a mandament van spolie against Dasel Properties (Pty)
Ltd (‘Dasel’), the first respondent . Rototank seeks that Dasel be directed to urgently restore to
Rototank possession of the advertising space, structures, advertisement signs and props
(‘advertising space’) at Plot 148, R512, Pelindaba Road, Broederstroom (‘Plot 148 ’). Rototank
claims that it was unlawfully deprived of peaceful and undisturbed possession of the
advertising space by Dasel. Rototank is a manufacturer of polyethylene tanks, such as water
and septic tanks, and storage silos. Dasel is the registered owner of Plot 148.
[2] The application is opposed by Dasel , including on the ground that restoration of
possession is impossible given the specific circumstances of this matter . Mrs Martha Maria
Speed (‘Mrs Speed ’), the second respondent, is not taking part in these proceedings . Besides,
no relief is sought against her. But h er pre-litigation role in the dispute is relevan t to some of
the issues raised in th is matter .
[3] This matter came before me in the urgent court on 29 April 2025. Mr CA Boonzaaier
appeared for Rototank , whilst Mr FW Botes SC appeared for Dasel . I reserve d this judgment
after listening to oral submissions by counsel. Counsel had generally assured me that, in the
few weeks of awaiting the delivery of the judgment their respective client s do not expect
material or prejudicial change in circumstances . The peculiar nature and extent of the issues in
the matter deserved a further reflection - after the hearing - before their determination.
Preliminary issues
General
[4] Although the only issue dealt with on a preliminary basis at the hearing of this matter
is the urgency of the application, Rototank had raised on the papers two other issues for
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preliminary determin ation by the Court , namely, (a) the late deliver y of Dasel’s answering
affidavit , and (b) the alleged reliance on hearsay evidence on the part of Dasel in its answer . I
will deal with urgency below, once enough light is shed by way of background facts to this
matter . I first direct my attention to Rototank’ s other preliminary issues.
The late delivery of Dasel’s answering affidavit
[5] This application was issued on 16 April 2025 . According to the service affidavit filed
by Rototank’ s attorney , the application was served by e -mail on Dasel’s attorneys the same day
and by the sheriff on Dasel , later on 22 April 2025.1 Any respondent intending to oppos e the
matter was to notify the applicant of such intention by 17 April 2025 and to deliver an answer
by 12 h00 on 23 April 2025 . The date of hearing was stated as 29 April 2025. Rototank
complains that, despite the se clear timeframes, Dasel only deliver ed its answering affidavit , a
day late, in the afternoon of 24 April 2025 , without proffer ing any expla nation for the delay or
seeking condonation therefor . The size of the founding affidavit and the length of time rationed
to Dasel for its answer did not justify the delay . Consequently , Dasel’s answer is not properly
before this Court . I did not detect prejudice (nor was I made aware of any) on the part of
Rototank and, thus, admitted the answering affidavit due to the brief nature of the material
delay and in the interests of justice .2
Dasel’s reliance on hearsay evidence
[6] Rototank is further unhappy with what it considers to be hearsay evidence in Dasel’s
answering affidavit. This, in the main, concerns what Mrs Speed allegedly told Mr Dennon
Michael Speed (‘Mr Speed’), the director of Dasel and the deponent to its answering affidavit ,
as well as what Mr Speed says he heard from a certain ‘Adriaan’, allegedly a representative of
La Joya. La Joya is the current user of the disputed advertising space. Rototank objects against
1 Applicant’s service affidavit pars 3 -4, CaseLines (‘CL’) 004 -9.
2 DE van Loggerenberg, Erasmus: Superior Court Practice (Service 23, Jutastat e -publications December
2024) (‘Erasmus: Superior Court Practice ’) RS 24, 2024, D1 Rule 6 -26 and the authorities cited there.
4
this evidence as inadmissible hearsay in the absence of confirmatory affidavit s from Mrs Speed
and Adriaan . I do not think that a blanket ruling is warranted , given the nature or form of the
objection and , thus, would pronounce on the admissibility of the relevant part of the evidence
when ever it features , below .
Background
[7] A brief narration of the facts in the background to this matter is warranted to provide
context. I will do so on the basis of the facts that are common cause between the parties or else
the point of divergence would be highlighted.
[8] Rototank says it was i n possession of the advertising space from October or November
2024 in terms of a lease agreement concluded with Mrs Speed , acting on behalf of Dasel . Dasel
initially appeared to be denying that Mrs Speed had authority to lease out the advertising space ,
but that mellowed into specific constraints being attributed to her mandate , as to the terms
relating to duration and cancellation of the l ease. I will return to this below.
[9] Rototank, in terms of the lease, installed a concrete slab, refurbished the steel
structures, and installed its signage and two large Rototank water tanks as display props in
November 2024. It paid a deposit and rental amounts (including rent in advance ) at R4 000 per
month for the use of the advertising space .
[10] In February 2025 , Mrs Speed advised Rototank that Plot 148 has been sold by the
owners and in terms of sale agreement the advertising space was to be ‘handed over to the new
owners effective 01 April 2025’.3 She also informed Rototank that the advertising space was
no longer available for its use from that date and that all ‘temporary structures, including tanks’
3 Founding Affidavit (‘FA’) par 31, CL 003 -19.
5
were to have been removed from Plot 148 by 31 March 2025 , ‘unless alternative arrangements
are made with the new owners’ .4
[11] Faced with th is turn of events , Rototank , on 26 February 2025 , sent a letter to Mrs
Speed disputing the termination and, also, attached the letter at the advertising space at Plot
148, together with a notice asserting Rototank ’s right to possession on 08 April 2025.
[12] On 10 April 2025 , Dasel – through its director and attorney , Mr HP Pennell s - informed
Rototank , that: (a) Dasel was the owner of the property (and, by extension, the advertising
space) ; (b) Mrs Speed did not have any authority to act on Dasel ’s behalf ; (c) Dasel did not
‘give permission ’ to enter into a 3 -year lease agreement, and (d) the lease agreement had been
terminated . The following day, on 11 April 2025 , Dasel ’s attorney informed Rototank that
Dasel had removed Rototank ’s ‘tanks and structures ’ and placed them in secure storage.5
[13] Rototank considered Dasel’s conduct to constitute spoliation and Rototank (still on 11
April 2025 ) dispatched a letter to Dasel ( again through the attorneys) demanding that
possession of the advertising space be restored by 14 April 2025 . Dasel , punctually , responded
and asserted , among others, that: (a) Mrs Speed had no authority to conclude a lease agreement
without a month’s termination clause; (b) there was proper termination of the lease; (c)
Rototank’s material has been removed , and (d) that the advertising material on the board has
been destroyed and cannot be replaced. Two days later , on 16 April 2025 , this application
ensued .
Rototank ’s case and submissions
[14] Rototank says it has been a manufacturer of polyethylene tanks and storage silos for
over 30 years with 16 branches countrywide. It further says that it heavily relies on its
4 Ibid.
5 FA par 40, CL 003 -22.
6
reputation in the market to generate sales and market its products through advertising
campaigns, including advertising boards.6 It has been in peaceful possession of the advertising
space since October or N ovember 2024. Its use or possession of the advertising space was
previously admitted by Dasel, but Dasel has now made an about turn and denied Rototank’s
possession in papers before this Court , Rototank complains . This ‘new version ’ by Dasel, it is
submitted for Rototank, is ‘far-fetched, untenable ’ and ‘ contrary to all reasonable
probabilities ’, and is to be rejected by the Court .
[15] It is Rototank ’s case that it has been in possession of the advertising space from October
or November 2024 in terms of a 3-year lease agreement concluded with Mrs Speed , the second
respondent , representing Dasel . I have already referred in the background , above, to the
correspondences exchanged between Rototank’s attorneys and , at first , Mrs Speed and,
subsequently , Dasel’s attorneys regarding the disputed termination of the l ease.7 Rototank
disput es Dasel’s or Mrs Speed’s right of termination or cancellation of the lease and considers
this, as well as the remov al of its material from the advertising space an unlawful spoliat ion.
Rototank , further, asserts that it had no alternative under the circumstances but to urgently
approach this Court to protect its possessory rights under the remedy mandament van spolie .
According to Rototank’s counsel , all that his client is require d to establish - to regain restoration
of possession - is the fact that there was prior peaceful possession, and that his client was
deprived of that possession unlawfully against its will or without its consent or recourse to the
law. There is no need to determin e the rights of the parties to the thing possessed or the basis
of the possession , counsel’s submission concludes . I deal with the requirements for the remedy
in more detail below.8
6 FA par 23, CL 003 -15.
7 Pars [10] -[13] above.
8 Pars [ 23]-[28] below.
7
[16] Mr Boonzaaier appearing for Rototank, also, submit ted that t he judgment of this
Division in Strawberry Worx Pop (Pty) Ltd v Cedar Park Properties (‘Strawberry W orx’)9 is
on the proverbial ‘ all fours ’ with this matter . In Strawberry Worx the learned Van Oosten J,
similarly to this matter, dealt with an urgent application for mandament van spolie . There the
applica nt complained about unlawful dispossess ion of advertising space on the rooftop of a
building located in Rivonia , Johannesburg . The applica nt was an advertising agency and the
respondent the owner of the building. The applicant had concluded agreements with the
respondent to erect advertising signs on the latter’s buildings on behalf of third parties. The
respondent replaced the signs with those of another party - without recourse to the court – after
a dispute had arisen between the parties regarding the applicant ’s continued right to erect the
signs . The court compared the agreement to a sub-lessee in terms of which the applicant was
expressly and exclusively authorised to use the advertising space. It also held that the factors
in the matter collectively amounted to posse ssion of the advertising space entitling the applicant
to peaceful possession there of. Further, that t he removal of the signs and erect ion of new signs
without a court order constituted self -help on the part of the respondent and unlawful
deprivation of possession. The court, consequently , ordered th e respondent to restore
possession of the advertising space and advertisement signs to the applicant.10
[17] Rototank avers that it is undisputed that it w as entitled to use the advertising space to
display advertising material , whilst maintain ing or keep ing the advertising board in good
condition and effect ing repair s to it when necessary . Further, Rototank says it was entitled to
erect a concrete slab, cut down trees, and upon expiry of the lease to remove all advertising
material and props and return the premises in good condition. All these, it is further submitted,
9 Strawberry Worx Pop Pty Ltd v Cedar Park Properties 39 (Pty) Ltd and Another (18810/2016) [2016]
ZAGPPHC 547 (17 June 2016) ; 2016 JDR 1310 (GJ) (‘Strawberry Worx ’).
10 Strawberry Worx [10]. Subsequent ly, Cedar Park tried unsuccessful ly to reverse the outcome or effect
thereof in Cedar Park Properties 39 (Pty) Ltd v Strawberry Worx Pop (Pty) Ltd (21068/2016, 21594/2016,
23878/2016, 18810/2016) [2016] ZAGPJHC 207 (1 August 2016).
8
are the hallmarks of peaceful possession of the advertising space. These facts w ere confirmed
by the email sent by Mrs Speed to Rototank on 18 February 2025 in which she specifically
stated that ‘the signboard currently in your [ i.e. Rototank ’s] use must be handed over to the
new owners ’.11 Therefore, i t was never in dispute that Rototank had the use of the
advertisement board, and use cannot exist without possession , the submission concludes .
[18] Rototank ’s case includes that it was deprived of peaceful possession by Dasel in an
unlawful manner , contrary to Rototank ’s protests . Rototank considers the letter by Dasel’s
attorney on 11 April 2025 (confirm ing Dasel ’s instruction on the remov al of Rototank ’s ‘tanks
and structures ’ and safekeeping same in storage ) to have unequivocally admitted the unlawful
depriv ation of possession .12 The depriv ation was also confirmed in subsequent
correspondences between the attorneys , it is further submi tted.
[19] Rototank is also unhappy with what appears in Dasel’s answering affidavi t to be
attempts by Dasel to alter or withdraw statements and admissions previous ly made by Dasel
on 11 and 14 April 2025 in communications between the attorneys . The impugned material
relate s to: (a) La Joya being in the peaceful and undisturbed possession of the advertisement
signs ; (b) Dasel having surrendered possession of the Plot and the advertis ing space to Dasel’s
majority shareholder, only referred to as ‘the Third Party ’, on 1 April 2025 , and (c) La Joya’s
place ment of its own advertisement on the billboard and removal of Rototank’s material.13
Rototank says that the material is clearly prejudic ial. It has launched this application on the
basis that Dasel had expressly admitted depriv ation o f Rototank’s possession of the advertising
space and, thus, t he only issue s anticipated to be in dispute were whether Rototank was in
peaceful possession of the advertising space and whether restoration of possession was possible
11 FA par 31, CL 003-19.
12 FA par 40, CL 003-22.
13 Answering affidavit (‘AA’) pars 8, 18.14 and 18.16, CL 007 -5, 007 -12 and 007 -13, respectively.
9
given the alleged destruction of Rototank’ s signage. The ‘new facts’ that an unnamed ‘ Third
Party’ or ‘La Joya ’ is responsible for depriv ing Rototank of possession of the advertising space
constitute impermissible hearsay and contradiction of Dasel’s e arlier factual statements and
concessions . Other than lacking support from the evidence before the Court, the averments
attributed to third parties are not backed by confirmatory affidavit s from the third parties . Also,
no explanation has been proffered by Dasel or its attorney s for the purported withdraw al of the
factual statements and admissions made , it is further argued . Therefore, the Court ought to
reject the ‘new version ’ similarly to the hearsay evidence in Dasel’s answer, referred to above .
Overall, Rototank se eks the relief sought in the notice of motion, albeit with some adjust ments,
as will be further discussed, below.
Dasel ’s case and submissions
[20] Dasel’s opposition to the application begins with a denial that th is application or the
relief sought is urgent. Dasel also complain ed that the urgency was manifested by the truncation
of the time periods for exchange of papers in Rototank ’s notice of motion which substantially
curtailed Dasel ’s timetable for consult ations , gathering of information and fil ing of papers. I
will return to the issue of urgency below. Dasel ’s further grounds of opposition of the relief
sought by Rototank include that: (a) Rototank does not meet the requirements of a mandament
van spolie ; (b) the lease agreement was lawful ly and legal ly terminat ed, and (c) restoration of
the advertisement sig ns or space is factually impossible .
[21] Dasel, in recognition of the requirements for the remedy of mandament van spolie ,
avers that f or Rototank to be granted the remedy it ought to meet the two requirements for the
remedy, namely, that Rototank was in possession of the advertising space and was wrongful ly
deprived of such possession by Dasel . Dasel disputes that Rototank was in possession of the
advertising space from 1 April 2025 . According to Dasel, the following part the Rototank’s
own version demonstrates that Rototank was not forcibly or wrongfully dispossess ed or lost
10
possession against its consent: (a) Mrs Speed obtained permission from Dasel to place a
marketing or advertising board on Plot 148 in order to generate income ; (b) permission w as
granted subject to conclusion of a written agreement and rental of the advertising space on a
month -to-month basis or with cancelation allowed on a month ’s notice ; (c) t he lease agreement
concluded by Rototank with Mrs Speed , as Dasel was advised by Mrs Speed , was for a period
of one-year, subject to cancelation on a month ’s notice; (d) Rototank unilaterally changed the
term or duration of the agreement from one year to three years; (e) the agreement was mutually
terminated between Mrs Speed and Rototank on 6 February 2025 ; (f) Mrs Speed confirmed the
termination in writing on 18 February 2025 ; (g) Dasel surrendered possession of Plot 148 and
the advertis ing space to the ‘third party’, who purchased Dasel’s majority share holding (‘the
Third Party’), on 1 April 2025 ; (h) the Third Party was at liberty and entitled to utili se the
advertising space as from 1 April 2025 ; (i) on 11 April 2025 , La Joya’s advertisement replaced
Rototank’s at the advertis ing space and the latter’s material was subsequently destroyed and ,
thus, no longer exists ; (j) Dasel had no involve ment in the removal and replacement of the
advertisement signs , and (k), therefore, Rototank was not deprived of possession against its
will, without resort to legal process, or by trick ery.14 Further, the aforesaid is exacerbat ed by
the fact that Dasel was not the cause of the alleged deprivation of possession , even if this Court
were to find that Rototank was deprived of possession, the submissions conclude in this regard .
[22] Regarding Dasel’s contention that the prevailing circumstances have rendered
restoration of possession impossible , the following is notable : (a) it is impossible to undo the
present signwriting and artwork, and to replace same with Rototank’s signwriting ; (b)
Rototank’s signwriting was removed and completely destroyed by virtue of the currently
displayed signwriting and artwork of La Joya ; (c) Dasel does not possess the template for
14 Kleyn DG Die Mandament van Spolie in die Suid -Afrikaanse Reg (LLD -thesis University of Pretoria 1986)
at 385.
11
Rototank’s artwork previous ly displayed at the advertising space ; (d) Dasel would, if the relief
is granted, find it impossible to comply with the orders to reverse the alleged spoliation , and
(e) Dasel surrendered possession of Plot 148 and the advertis ing space to the majority
shareholder Third Party effective 1 April 2025 . Therefore, there is impossibility of the
restoration , which is a question of fact , as observed in the legal authorities , the submission
concludes .
Applicable legal principles
[23] It is common cause between the parties that th is application is primarily for the granting
of relief in the form of a spoliation order or mandament van spolie .15 Also, i t is trite that for an
applicant, such as Rototank, to succeed in obtaining the remedy it ought to establish that: (a) it
was wholl y or part ly deprived of i ts possession of a movable or immovable property ,
unlawfully , without agreement or recourse to law , or (b) it was so deprived of its quasi -
possession of other incorporeal rights.16 ‘Spoliation ’ constitutes an ‘ illicit deprivation of
another of the right of possession which [such person ] has, whether in regard to movable or
immovable property or even in regard to a legal right ’.17
[24] Fairly recently, the Supreme Court of Appeal (‘the SCA’) had an opportunity to
pronounce on the nature and extent of the spoliation remedy in
Eskom Holdings SOC Ltd v Masinda18 when it made the following observations :
The mandament van spolie (spoliation) is a remedy of ancient origin, based upon the
fundamental principle that persons should not be permitted to take the law into their
own hands to seize property in the possession of others without their consent.
15 CG Van der Merwe Things in The Law of South Africa (‘ LAWSA’ ) (Volume 27, Second Edition
LexisNexis 2014 ) (“Van der Merwe, Things in LAWSA (Vol 27)”) 94.
16 Van der Merwe, Things in LAWSA (Vol 27) 94. See also Blendrite (Pty) Ltd and Another v Moonisami and
Another 2021 (5) SA 61 (SCA) at [6] and [7].
17 Nino Bonino v De Lange 1906 TS 120 at 122 where the observation is as follows: “… spoliation is any
illicit depravation of another of the right of possession which he has, whether in regard to movable or
immovable property or even in regard to a legal right” [accessed through the link:
https://lawblogsa.files.wordpress.com/2013/01/nino -bonino -v-de-lange.doc]. See also Van Eck & Van
Rensburg v Etna Stores 1947 2 SA 984 (A)1000, 1947 3 All SA 143 (A) 152. See further Van der Merwe,
Things in LAWSA (Vol 27) 94.
18 Eskom Holdings SOC Ltd v Masinda 2019 (5) SA 386 (SCA).
12
Spoliation provides a remedy in such a situation by requiring the status quo preceding
the dispossession to be restored by returning the property 'as a preliminary to any
enquiry or investigation into the merits of the dispute' as to which of the parties i s
entitled to possession. Thus a court hearing a spoliation application does not require
proof of a claimant's existing right to property, as opposed to their possession of it, in
order to grant relief.19 [footnotes omitted]
[25] The meaning or principle of the remedy of mandament van spolie is that ‘ the person
who has been deprived of his or her possession must first be restored to his or her former
position before the merits of the case can be considered ’.20 The remedy seeks to preserv e public
order by restraining the taking of the law into individual’s hands by induc ing them to rather
consider submi tting to the rule of law and jurisdiction of the courts.21 It offers temporary relief
as the disaffected respondent may, afterwards , seek restor ation of possession through lawful
means, such as a rei vindicatio .22 Resort ing to self -help in order to regain lost possession of a
thing one is entitled to is discouraged in order to maintain p eace and legal order in the
community .23
[26] The remedy protect s the physical manifestation of a right and not the right ,
itself .24 When the court grants a spoliation order it seeks to redress breach of peace signified
by the unlawful interference with the factual control or the physical manifestation of a
right.25 This means that the correct approach when determining a claim based on the remedy
is to steer away from enquir ing about the impugned right of use or access affected by the
19 Eskom v Masinda 2019 (5) SA 386 (SCA) [8].
20 Based on the meaning in Van der Merwe, Things in LAWSA (Vol 27) 93, 111 attributed to the Latin maxim:
‘spoliatus ante omnia restituendus est ’.
21 Van der Merwe, Things in LAWSA (Vol 27) 93.
22 Van der Merwe, Things in LAWSA (Vol 27) 111. Rei vindicatio refers to a remedy which entitles an owner
“to reclaim possession of her or his property”. See LTC Harms, Amler’s Precedents of Pleadings (10th ed
LexisNexis 2024) 383.
23 Van der Merwe, Things in LAWSA (Vol 27) 93. See also Ngqukumba v Minister of Safety and Security and
others 2014 (5) SA 112 (CC) [10] -[12].
24 Van der Merwe, Things in LAWSA (Vol 27) 103.
25 Van der Merwe, Things in LAWSA (Vol 27) 103.
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alleged breach which amount s to an investigation of the merits of the matter, itself an antithesis
of the spoliation law.26
[27] What appears above shows that when seeking a mandament van spolie an applicant
ought to establish t hat:27 (a) the applicant had peaceful and undisturbed possession of the
material thing ,28 and the applicant was unlawfully deprived of such possession.29 Both parties
in this matter appear to share a common view on this. Counsel also referred the Court to t he
decision in Blendrite (Pty) Ltd and Another v Moonisami and Another30 where the SCA
emphasised the characteristics of mandament van spolie as a robust , speedy possess ory
remedy ,31 when dealing with spoliation to do with access to server and use of email address.
[28] Possible valid defences against spoliation claim include the following, that : (a) an
applicant was not in peaceful and undisturbed possession of the impugned thing when
dispossess ed; (b) dispossession was not unlawful , hence no spoliation; (c) a respondent
regain ed possession within the confines of counter -spoliation ; (d) dispossession was with the
applicant ’s consent , and (e) it is impossible to restor e possession .32 Dasel’s main ground of
defence is pivoted on the latter: restor ation of possession is impossible . The permissible
defences against a claim of spoliation are constrained due to the absolute nature of the rule
spoliatus ante omnia restituendus est .33
26 Van der Merwe, Things in LAWSA (Vol 27) 103. See also Eskom v Masinda 2019 (5) SA 386 (SCA) [8],
quoted in par [2 4] above.
27 Van der Merwe, Things in LAWSA (Vol 27) 108. See also Chopper Worx (Pty) Ltd v WRC Consultation
Services (Pty) Ltd 2008 (6) SA 497 (C) [16] -[21].
28 When establishing that he or she was in peaceful and undisturbed possession of the thing, the applicant
ought to show that she or he had factual control of the thing, which control was accompanied by an
intention to derive some benefit from the material thing. See Van der Merwe, Things in LAWSA (Vol 27)
108
29 An act of spoliation ought to be established on the part of the respondents, being an illicit deprivation of
the applicant’s possession of the impugned thing or disturbance of such possession without the consent
and against the will of the possessed applicant. See Van der Merwe, Things in LAWSA (Vol 27)
108; Wightman t/a JW Construction v Headfour (Pty) Ltd 2008 (3) SA 371 (SCA) [27].
30 Blendrite v Moonisami 2021 (5) SA 61 (SCA).
31 Blendrite v Moonisami 2021 (5) SA 61 (SCA) [6] .
32 Van der Merwe, Things in LAWSA (Vol 27) 109.
33 Van der Merwe, Things in LAWSA (Vol 27) 111. See footnote 20 above on the meaning of the Latin maxim.
14
Issues for determination
[29] As this is a spoliation application the requirements for the remedy mandament van
spolie are the primary issues to be determined in this matter. The application, as stated above,
is opposed mainly on the ground that restoration of possession is impossible. These main or
primary issues are potentially dispositive of this matter, but they are not the only issue s
requiring determination. The following appear to be other issues ancillary to the main or
primary issues above : (a) urgen cy; (b) duration and termination of the lease agreement ; (c)
alteration or withdraw al of previous statements and admissions ; (d) Dasel ’s surrender of
possession of Plot 148 and the advertis ing space to the majority share holding Third Party; (e)
utilisation of the advertising space by La Joya , and ( f) Dasel ’s (non) involve ment in the removal
and replacement of Rototank’s advertisement signs.
[30] I have identified the primary and ancillary issues above to simply facilitate the
discussion. The issues are interlinked and, therefore, not warranting a straitjacket approach.
Therefore, i n some instances, the issues will be discussed jointly due to interlinkages. And the
discussion will not take the order or sequence of the issues adopted above.
Urgency
[31] I extemporaneously at the hearing ruled that the matter is urgent . The oral and written
submissions by counsel preceding this ruling included what appears next.
[32] Mr Boonzaaier for Rototank submit ted that his client acted promptly as from 11 April
2025 when it became aware of the alleged dispossession . It demand ed restoration of possession
by 14 April 2025 , to no avail, and this urgent application was launched on 16 April 2025 .
Counsel referred to th e principles relati ng to urgency succinctly stated in East Rock Trading 7
(Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others (‘East Rock Trading ’)34 in
34 East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others (11/33767) [2011]
ZAGPJHC 196 (23 September 2011) [6], [7], [9].
15
which this Division per Notshe AJ was emphatic about the need to establish that the applicant
would not obtain substantial redress in the normal course. Further, counsel emphasised th e
design of the remedy to attain speedy relief,35 whilst steer ing away from the notion of ‘inherent
urgency ’ as admonished – with respect - by Wilson J of this Division in Volvo Financial
Services Southern Africa (Pty) Ltd v Adamas Tkolose Trading CC (‘Volvo Financial ’).36
Counsel submitted that Rototank will not be afforded substantial redress at a hearing in due
course , as the removal of the advertising board would result in loss of sales in million s over the
next six to nine months whilst waiting for a hearing in the ordinary course . This would be a
reversal of Rototank’s substantially increased sales in Gauteng over the five months from
November 2024 to April 2025 linked to the advertising board at Plot 148 . A damages claim
would fall short in restor ing loss of custom and goodwill caused by the unlawful dispossession ,
it was further argued . Also, there is a possib ility of the sale or transfer of Plot 148 which may
render restoration of possession impossible. Therefore, the Court ought to restore the status
quo ante without delay in order to offer effective or substantial redress .37
[33] Mr Botes SC for Dasel submitted that Rototank has not explicitly stated why it will not
obtain substantial redress in due course as observed in East Rock Trading .38 This is in addition
to the necess ity to have a bridge d time periods for delivery of court papers.39 Besides, if there
is urgency in this matter it would only have been self-created by Rototank’s own conduct.
Counsel, further , cited the durable principles on urgency from Luna Meubel Vervaardigers
(Edms) Bpk v Makin and another (t/a Makin's Furniture Manufacturers) .40 Regarding
35 Blendrite v Moonisami 2021 (5) SA 61 (SCA) [6].
36 Volvo Financial Services Southern Africa (Pty) Ltd v Adamas Tkolose Trading CC (2023/067290) [2023]
ZAGPJHC 846 (1 August 2023) [6].
37 Nino Bonino v De Lange 1906 TS 120 at 122; Fredericks v Stellenbosch Divisional Council 1977 (3) SA
113 (C) at 117.
38 Par [ 32] above. See also Rule 6(12)( b) of the Uniform Rules of the High Court.
39 Rule 6(12)(a) of the Uniform Rules.
40 Luna Meubel Vervaardigers (Edms) Bpk v Makin and another (t/a Makin's Furniture Manufacturers) 1977
(4) SA 135 (W) 137 -138.
16
Rototank ’s argument that it would suffer financial harm or reduction in sales due to the absence
of the advertising space, counsel referred to the dicta in IL & B Marcow Caterers (Pty) Ltd v
Greatermans S A Ltd and Another; Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd and Another
(‘Aroma Inn ’).41 In Aroma Inn , Fagan J dismissed apprehension by litigant s of commercial or
financial consequences which may ensue from a delay in the hearing of a matter and rather
preferred personal safety or liberty concerns or the likelihood of physical or psychological harm
to warrant preferential treatment for urgent hearing of matters .42 Rototank has not demonstrate d
on the facts of this matter that immediate assistance is warranted from the Court. Further, Mr
Botes SC criticised what he considered Rototank ’s apparent reliance on the so -called ‘inherent
urgency' of spoliation proceedings in the face of the observation in Volvo Financial Services
Southern Africa , referred to above.43
[34] I searched in vain for anything to contradict the fact that Rototank would suffer
financial or commercial harm due to the alleged dispossession of the advertising space if the
matter is not given urgent attention . Protection of commercial interests through urgent relief -
depending on the circumstances of matter - is recognised by the courts ,44 despite the previous
sentiments by Fagan J expressed in Aroma Inn , referred to above .45 I was satisfied that based
on the facts set out above , this matter is urgent , hence the order to that effect made at the
hearing .
Alteration or withdrawal of previous statements and admissions
[35] Rototank , as indicated above, seeks that this Court finds some statements made in
Dasel’s answering affidavi t to constitute impermissibl e withdraw al of previous statements and
41 IL & B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd And Another; Aroma Inn (Pty) Ltd v
Hypermarkerts (Pty) Ltd and Another 1981 (4) SA 108 (C).
42 Aroma Inn at 113 -114.
43 Volvo Financial [6], referred to in par [32] above.
44 Ziegler South Africa (Pty) Ltd v South African Express Soc Ltd and Others 2020 (4) SA 626 (GJ) [17],
relying on Aroma Inn ; Twentieth Century Fox Film Corporation and Another v Anthony Black Films (Pty)
Ltd 1982 (3) SA 582 (W) at 586F -G.
45 Par [ 33] above.
17
admissions made .46 This argument is somewhat linked to the one urging the Court to extricate
inadmissible hearsay evidence alleged to be contained in the answering affidavi t.47 I don’t think
this argument was developed by counsel for Rototank to be capable of determination. I agree
that Mr Pennells or his client did not explain what I can only describe as the change of tack in
Dasel’s defence of this matter. Although, the Court expects of litigants not to take their
opponents by surprise, on the facts of this matter I don’t think that much could be made about
the so -called factual admissions previously made by Dasel. Perhaps, the issue may be relevant
to the issue of costs.
Lease agreement and its duration
[36] Part of Dasel’s grounds for opposing the spoliation claim is that there was no unlawful
dispossession as the lease was lawful ly cancelled or terminat ed on its terms. Normally, this
should be a straightforward issue, but in this matter it is not. The parties are at cross purposes
as to the agreement for the lease of the impugned advertising space.
[37] According to Rototank the advertising space was leased from October or November
2024 for a period of three y ears in terms of an agreement concluded with Mrs Speed . But the
copy of the agreement attached to the papers is unsigned. Rototank says it tried in vain to get
the agreement signed in its interactions with Mrs Speed .
[38] Dasel’s case on the agreement is quite unclear . Dasel in its attorney’s letter , first denied
the authority of Mrs Speed to act on behalf of Dasel. But before th is Court Dasel appears to
admit that Mrs Speed was its appointed agent or someone it dealt with in respect of the leasing
of the advertising space. It is Dasel ’s case that Mrs Speed was not given permission to enter
into a three -year lease agreement, but a lease for only a year. Dasel attached in this regard an
agreement it concluded with Mrs Sp eed purportedly as her authority or licence to rent out the
46 AA pars 8, 18.14 and 18.16, CL 007 -5, 007 -12 and 007 -13, respectively.
47 Par [ 6] above.
18
advertising space. Dasel accuses Rototank of having unilaterally changed the lease period from
one to three years. Also, Dasel says that it was assured by Mrs Speed that the lease has been
cancelled by giving one month’s notice . This is the source of Dasel’s argument that the lease
agreement was lawfully terminated .
[39] I don’t think that the term or duration of the lease make s any difference in this matter.
For, whether the lease was meant to run for one or three years only means that the lease would
be extant until at least around October/November 2025. Therefore, the only material issue is
not the duration clause but the cancellation clause of the lease , if any . I deal with th e issue of
cancellation of the lease when discussing whether Rototank was lawfully deprived of
possession of the advertising space , below .48
Spoliation application and the requirements
[40] I have referred to the basic principles or requirements for the remedy of mandament
van spolie above, namely, unlawful depriv ation of possession of property or the unlawful
depriv ation of quasi -possession of other incorporeal rights.49 It is common cause that Rototank
ought to establish , that (a) it had peaceful and undisturbed possession of the advertising space,
and (b) it was unlawfully deprived of such possession.50
Was Rototank in peaceful and undisturbed possession of the advertising space ?
[41] Rototank says it was in peaceful and undisturbed possession of the advertising space in
terms of the lease agreement since October or November 2024. The existence of the lease
agreement has been confirmed above, otherwise Rototank would have been an unlawful
occupier of the advertising space , which is not part of Dasel’s case . But Dasel denies that
48 Pars [43]-[46] below .
49 Pars [23]-[28] above .
50 Pars [23], [27] above.
19
Rototank was in peaceful and undisturbed possession. It seems Dasel’s view is that La Joya is
the one in peaceful and undisturbed possession.
[42] It is common cause that Rototank was entitled to occupy the advertising space and did
occupy the advertising space through its signage and other material placed or erected at the
advertising space between November 2024 and March 2025 . Rototank was made aware o n 11
April 2025 that its advertising material has been removed from Plot 148 or the advertising
space to give way for new signage of or occupation by La Joya . Therefore , Rototank w ould
have clearly been in peaceful and undisturbed possession of the advertising space until the
removal of its material which it now complains of . I don’t think this requires further
discussions.
Was Rototank unlawfully deprived of possession ?
[43] Having ruled that Rototank was in possession of the advertising space , my attention
turns to whether Rototank was unlawfully deprived of possession. The point of departure is
that Rototank occupied the advertising space in terms of a lease agreement . Therefore, the
termination or cancellation of Rototank ’s occupation would ordinarily be on the basis of the
terms of the lease agreement. The material terms would be those dealing with the duration and
cancellation or termination of the agreement. This is common cause between the parties.
[44] But, t he parties appear more fixated on the duration of the agreement. As stated above,
there is a dispute regarding whether the lease agreement was for one or three years. Rototank
says it was for three years . It attached an unsigned draft lease agreement (i.e. annexure ‘FA10a’
to the founding affidavit) and averred that the draft carries the agreement reached with Mrs
Speed , only that she did not revert regarding the signing thereof. Dasel only concedes a lease
agreement of one year.51 So far, as I indicated above, there is no complication. Both parties
51 AA par 18.7, CL 007 -10.
20
agree that any lease between the parties would have not yet expired or lapsed due to effluxion
of time .
[45] The other material term of the agreement will be its cancellation clause , if any. It is
Dasel’s case that Mrs Speed has been authorised to conclude a lease agreement with a one
month ’s cancellation clause. But Dasel has not furnished a copy or draft of any lease agreement ,
but pivots its case on the a llegation that Rototank unilaterally changed the duration clause of
the lease agreement . This gives the impression that the only thing changed in the draft is the
duration of the agreement and nothing else . Should this be the case then there will be a problem
with cancellation or termination as the draft agreement does not appear to contain a cancellation
or termination clause , let alone one for one month’s notice .
[46] Dasel is the party alleging – as part of its defence - that the lease agreement is capable
of cancellation and was indeed cancelled at a month’s notice by Mrs Speed . Dasel, therefore,
ought to establish this aspect of its defence, which is disputed by Rototank. Dasel relies on its
private arrangement with Mrs Speed as to the extent or constraints of her authority. Mr Speed
as the deponent to Dasel’s answering affidavit refers to what was relayed to him by Mrs Speed .
The latter did not depose to a confi rmatory affidavit to confirm the averments and Dasel did
not proffer any explanation in this regard. Whilst Mr Speed alleged some acrimony between
Mrs Speed and Dasel, there appear s to be none between him and Mrs Speed as they were able
to communicate to the extent they did. A confirmatory affidavit by Mrs Speed, as the person
with knowledge of the material facts ought to have been included as Mr Speed , the deponent
to the answering affidavit , clearly has no first -hand knowledge of these facts .52
52 Cilliers, AC, Loots, C and Nel, HC. Herbstein and Van Winsen: Civil Practice of the High Courts and the
Supreme Court of Appeal of South Africa , 5th edition, Jutastat (November 2021) at at 5th Ed, 2009 ch14 -
pp444 -445; Erasmus: Superior Court Practice ’ at RS 25, 2024, D1 Rule 6 -16 to 6 -18.
21
[47] There is clearly no evidence of an agreement between the parties that the lease
agreement is capable of cancellation by giving a month’s notice. Without evidence of such
clause Dasel or Mrs Speed would not have been contractually or lawfully entitled to cancel the
agreement, save through consensus with Rototank. It appears that Mrs Speed tried her earnest
to agree to cancellation of the agreement with Mr André Maré, the regional sales manager of
Rototank, but nothing came of her efforts. Against this outcome and absence of an authorising
court order compel ling Rototank to give up possession of the advertising space , the evidence
shows that Dasel elected to resort to self -help.53 Therefore, the available evidence confirm s
that Rototank was unlawfully deprived of possession of the advertising space.
Restoration of possession is impossible
[48] The corollary of a finding of unlawful deprivation of possession of a litigant is the
restoration of undisturbed possession to such litigant. But in this matter Dasel ’s case includes
that restoration of possession or occupation of the advertising space is impossib le. This is one
of the recognised defences against a spoliation claim .54 It is not less significant that the defence
is labelled from Dasel’s point of view a torpedo which disposes of the application in its entirety.
Dasel ’s case in advancement of its defence of impossib ility of restoration is premised along the
following lines :
[48.1] After Dasel surrendered possession of Plot 148 and the advertis ing space to its
new majority share holding Third Party on 1 April 2025 , the latter allowed La Joya to
substitute its own advertisement for that of Rototank at the advertis ing space. Around
the same time Rototank’s material was destroyed and , therefore, it is no longer in
53 Strawberry Worx [8], partly relying on Nino Bonino v De Lange 1906 TS 120 at 122 .
54 Par [ 28] above. See also Administrator, Cape v Ntshwaqela 1990 (1) SA 705 (A) at 720G –H; Chopper
Worx (Pty) Ltd v WRC Consultation Services (Pty) Ltd 2008 (6) SA 497 (C) at504H –505B; Ntshwaqela v
Chairman, Western Cape Regional Services Council 1988 (3) SA 218 (C) at 226 –7; Rikhotso v Northcliff
Ceramics (Pty) Ltd 1997 (1) SA 526 (W) at 532J –535A; Tswelopele Non -Profit Organisation v City of
Tshwane Metropolitan Municipality 2007 (6) SA 511 (SCA) at 521D –E.
22
exist ence. This includes Rototank’s advertisement which was remov ed from the
advertisement board and replace d, apparently without the involvement of Dasel.
[48.2] Restoration is also claimed to be impossible as any attempt to replace
Rototank’s signage will destroy the La Joya’s new signage . Reliance was placed on
some cases to support the contentions.
[48.3] First, reliance on the case of Potgieter en 'n ander v Davel55 where some housing
structures erected by the applicant to house his employees on land belonging to the
respondent were destroyed , but the court ruled it as not an act of spoliation due to
possession not having passed to the spoliator.56 Counsel appears to submit that disposal
of the matter was also possible on the basis that restoration of the property in question
to the applicant was impossible . But this authority is unhelpful to Dasel’s case and
counsel appears to have been aware of this and the criticism levelled against it in
Administrator, Cape, and another v Ntshwaqela and others .57 Counsel also highlighted
what he calls strong criticism against the order in Fredericks and another v Stellenbosch
Divisional Council58 that the respondent restor es possession of the property through the
use of other or new similar size and quality iron sheets after corrugated iron shelters of
the applicants were demolished through a bulldozer .59 It is submitted that the case was
otherwise a good example of impossib ility of restoration of possession of the property
and the very essence of the mandament van spolie .
55 Potgieter en 'n ander v Davel 1966 (3) SA 555 (O).
56 Potgieter v Davel 1966 (3) SA 555 (O). See also Kleyn Mandament 379 –80.
57 Administrator, Cape, and another v Ntshwaqela and others 1990 (1) SA 705 (A) at 719.
58 Fredericks and another v Stellenbosch Divisional Council 1977 (3) SA 113 (C)
59 Fredericks v Stellenbosch Divisional Council 1977 (3) SA 113 (C). See also Vena v George Municipality
1987 (4) SA 29 (C); Ierse Trog CC v Sulra Trading CC 1997 (4) SA 131 (C) 128 At 117.
23
[48.4] In Rikhotso v Northcliff Ceramics ( Pty) Ltd and others (‘Rikhotso ’)60 it was held
that a spoliation order cannot be granted if the property at issue has ceased to exist.61
Rikhotso was cited with approval in varying degrees by the Constitutional Court in
Schubart Park Residents' Association and Others v City of Tshwane Metropolitan
Municipality and Another ,62 which concerned, among others, the order for reoccupation
of homes by residents after their remov al. Rikhotso also received positive mentions by
the S CA in Ngoman e and others v Johannesburg ( City) and another ,63 which concern ed
the unlawful remov al of homeless people ’s property from public space and destroying
same , and Monteiro and another v Diedrick s64 dealing with restoration of possession
of a motor vehicle .
[49] Rototank is dismiss ive of Dasel ’s conten tions that Rototank ’s signage has been
destroyed . It points out that its claim is not simply for restor ation of possession of its signage
on the billboard , but restoration of its possession of the advertising space (i.e. advertising space,
structures, advertisement signs and props ) as a whole. The alleged destruction of signage ,
therefore, is irrelevant as Rototank will replace the signage. Regarding Dasel’s assertion that
restoration is impossible because when replacing Rototank’s signage the newly installed La
Joya’s signage would be destroyed , it is submitted on behalf of Rototank that a similar
argument was unsuccessful in Strawberry Worx , referred to above . In the latter case possession
of the advertising space was restored despite the respondent having given permission for a third
party to erect new signage in the place of the applicant’s.65
60 Rikhotso v Northcliff Ceramics (Pty) Ltd and others 1997 (1) SA 526 (W).
61 Rikhotso v Northcliff Ceramics 1997 (1) SA 526 (W) at 535A –B; and see Schubart Park Residents’
Association v City of Tshwane Metropolitan Municipality 2013 (1) SA 323 (CC) at 331B -333B.
62 Schubart Park Residents’ Association v City of Tshwane Metropolitan Municipality 2013 (1) SA 323 (CC).
63 Ngomane and others v Johannesburg (City) and another 2020 (1) SA 52 (SCA) [18].
64 Monteiro and another v Diedricks 2021 (3) SA 482 (SCA).
65 Strawberry Worx [3], [8].
24
[50] I agree with submissions by counsel for Rototank that the facts of this matter are similar
to those in Strawberry Worx . But a significant point of contrast is the fact that in the matter
currently before the Court the advertising material or signage has apparently been destroyed.
This does not appear to have been the case in Strawberry Worx where it seems that the sign
had only been removed.66 Even further , it is contended in this matter by Dasel that the very
act of restoring Rototank’s signage would destroy the new signage belonging to La Joya, a
third party.
[51] But, in my view, all these considerations or contentions appear – with respect - to miss
the nature of possession at stake in this matter. What Rototank seeks is restoration of possession
of the advertising space and advertising material . This is similar to the relief sought and granted
in Strawberry Worx .67 I do not view the fact that Rototank’s signage may have been destroyed
as affect ing the granting of relief. The signage is ancillary to the occupation or possession . This
much has since dawned on Rototank. Faced with the stark reality that the advertising material
may have been destroyed, Mr Boonzaaier for Rototank urged the Court to grant restoration of
the advertising space without the signage or the other material . This will be considered should
his client succeed . On the other hand, I do not consider issues relating to what would happen
to La Joya’s new signage at the advertising space to be properly arising for determination in
this application. Such determination involves an enquiry into other issues , not necessarily
relevant to this matter, and rights including those of La Joya. La Joya is not taking part in these
proceedings. The inquiry of that nature would be inimical to the very essence of the remedy,
as discussed above.68 Therefore, for all these reasons I consider that restoration of possession
of the advertising space is not impossible.
66 Ibid.
67 Strawberry Worx [4], [6], [7], [10].
68 Par [26] above.
25
Dasel’s (non)involvement in the removal and replacement of Rototank’s advertisement signs
[52] Counsel for Dasel submits that the fact that Dasel, as the alleged spoliator , has parted
with possession of the property to a third party exacerbat es the situation and is pertinent to
restoration of possession . Further, that it renders restoration impossible and closes the door for
the remedy of mandament van spolie . Also, that the good or bad faith of Dasel is irrelevant
when possession has passed to a third party .69
[53] I think the so -called third party or parties in this matter need (s) to be closely examined.
On Dasel’s own version Plot 148 is still registered in the name of (and, therefore, owned by)
Dasel.70 There is reference to the undisclosed third party said to have purchased a majority
shareholding in Dasel (i.e. the ‘Third Party) . In Dasel’s view , this renders th e Third Party to
have some rights beyond and independent of those of Davel in respect of the assets and interests
of Davel. Perhaps this may be so inter partes (i.e. between Dasel and the Third Party) , but not
beyond. For a contrary disposition would be inimical to the durable principle of our company
law of the sanctity of the separate juristic personality of companies , as recognised over a
century ago in Dadoo Ltd and Others v Krugersdorp Municipal Council (‘Dadoo ’)71 per Innes
CJ that ‘[a] registered company is a legal persona distinct from the members who compose
it’.72 A long line of cases ha s recognised the cardinal principle applied in Dadoo , with obvious
trace s of the English law heritage, including in this Division in Hlumisa Investment Holdings
(RF) Limited and Another v Kirkinis and Others73 per Molopa -Sethosa J , confirmed on appeal
69 Painter v Strauss 1951 (3) SA 307 (O) at 318; Malan v Dippenaar 1969 (2) SA 59 (O) at 65 -6; Van Biljon
v Kriel 1939 (2) PH M82 (W).
70 AA par 15, CL 007 -7.
71 Dadoo Ltd and Others v Krugersdorp Municipal Council 1920 AD 530.
72 Dadoo v Krugersdorp Municipal Council 1920 AD 530 at 550 -551.
73 Hlumisa Investment Holdings (RF) Limited and Another v Kirkinis and Others 2019 (4) SA 569 (GP) [50].
26
to the SCA in Hlumisa Investment Holdings R F Ltd and Another v Kirkinis and Others74 per
Navsa and Schippers JJA.
[54] The Third Party, therefore, as a shareholder or even a majority shareholder is not the
owner of any of the assets of the company. The Third Party’s rights are limited to incidents of
shareholding, ordinarily in the form of the right to attend, participate and vote at shareholders’
meetings. The passing of any rights to or possession of the advertising space by Dasel to the
Third Party in the latter’s capacity as a shareholder is legally incompetent. The corollary of this
is that any other person who re ceived occupation of the advertising space from the Third Party ,
in substance received such occupation or possession from Dasel. Therefore, all these purported
acts are legally incompetent and do not – without more - render restoration of the occupation
or possession to Rototank impossible.
Conclusion and co sts
[55] Rototank is successful and its application for a mandament van spolie will be granted.
The order of restoration of possession will exclude Rototank’s advertisement signs and props
in terms of the tweaked relief moved by counsel during the hearing of the matter. I do not see
any prejudice to Dasel in this regard. I will also change the period of compliance with the order
on the part of Dasel from 24 hours to five days, which I deem reasonable under the
circumstances.
[56] The above outcome will be followed by a costs order in favour of Rototank. But the
latter has sought a punitive costs order , on the scale applicable between attorney and client ,
against Dasel. The Court is urged to show its displeasure at Dasel ’s conduct for impermissibly
taking the law into its own hands - which conduct was severely prejudic ial to Rototank - and
74 Hlumisa Investment Holdings RF Ltd and Another v Kirkinis and Others 2020 (5) SA 419 (SCA) [17], [24]
partly relying on Itzikowitz v Absa Bank Ltd 2016 (4) SA 432 (SCA) . See further Piet Delport, Henochsberg
on the Companies Act 71 of 2008 (LexisNexis, October 2024) 84 for a detailed discussion on the principle
of separate legal personality of companies.
27
that Dasel ’s attempt to withdraw previous admissions of fact without any explanation is
unreasonable.
[57] I agree that Dasel was not a model litigant in this matter , but its conduct does not call
for more than a normal party and party scale costs order . The background facts to the matter
do not tr igger the h ighest sa nction from the Court in this regard, ev en if Dasel ’s case has
considerable blemi shes. But I will also add that counsel’s costs be at scale C. I consider this
scale appropriate on the facts of this matter.
Order
[58] In the result, I make an order in the following terms :
a) condonation is granted to the applicant for non -compliance with the forms and
service and time periods provided for in the Uniform Rules of Court , same is
dispensed with, and this application is heard and finalised as an urgent application
as contemplated in Uniform Rule 6(12)(a);
b) the first respondent is ordered to forthwith and within five (5) days of this Court’s
order restore the applicant’s possession of the advertising space and the structures
at Plot 148, R512, Pelindaba Road, Broederstroom;
c) The first respondent is ordered to pay the costs of this application on a party and
party scale, including costs of counsel where employed on scale C.
___________________________
Khashane La M. Manamela
Acting Judge of the High Court
-
28
Date of Hearing : 29 April 2025
Date of Judgment : 23 May 2025
Appearances :
For the Applicant : Mr CA Boonzaaier
Instructed by : Du Plessis Mostert Inc , Malmesbury
C/O Rina Rheeders Inc , Pretoria
For First Respondent : Mr FW Botes SC
Instructed by : Pennells Attorneys, Pretoria
For Second Respondent : No appearance