IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NUMBER : 2025 -040657
In the matter between
PARCH PROPERTIES 72 (PTY) LTD FIRST APPLICANT
THE TENANTS RESIDING IN SUMMERVALE SECOND APPLICANT
GARDENS LISTED IN ANNEXURE ‘FA2’
and
THE SUMMERVALE LIFESTYLE ESTATE RESPONDENT
OWNER’S ASSOCIATION
JUDGMENT
Leave to appeal
Date of hearing: 19 June 2025
Date of judgment: 20 June 2025
BHOOPCHAND AJ:
[1] The Applicants apply for leave to appeal the judgment of this Court delivered
on 6 May 2025. The grounds of appeal are too numerous to mention. The Court
acknowledges the Applicant’s recital of rules and the casela w applicable to
applications for leave to appeal. The Respondents oppose the application.
[2] The Applicants reminded the Court that paragraph 20 of the founding affidavit
was the nub of the application. Paragraph 20 relates to the history of the alleged ‘ quasi -
possession’ of the Respondent’s facilities and property for a prolonged period. The
situation changed five months before the institution of the application when the First
Applicant and the Respondent concluded a written facilities agreement. The Appl icant
submitted that the content of the paragraph was common cause.
[3] The Applicant then referred the Court to paragraphs 7 and 11 of the judgment
and submitted that the content turned the law on its head. Paragraph 7 referred to the
judgment of Adhikari A J concerning the membership of the First Applicant in the
Respondent. Had the First Applicant prevailed in that application, it would have been
entitled to continue using the Respondent’s facilities. The Applicants were obliged to
agree with the Respondent to ensure further usage of the Respondent’s property and
facilities. continuity of usage. Adhikari AJ dismissed the application, which is on appeal
to the SCA. The Court pointed out that the Applicant’s use of the Respondent’s
facilities was contractual and personal, and the mandament did not apply.
[4] Paragraph 11 of the judgment is a factual account of the Applicant’s position.
They have not lost any right of access to their own landlocked properties. The Court
does not understand how the content of th ese paragraphs changes the law. The
mandament is not the appropriate remedy where contractual rights are in dispute, or
where specific performance of contractual obligations is claimed, although certain
quasi -possessory rights are protected . 1 The Court was obliged to follow the dictum in
the Abrahams decision.
[5] The Applicant referred to an extract from LAWSA which acknowledged that
Courts accept t hat the mandament should not be used to protect personal rights which
can be enforced by contractual claims for specific performance. The Applicant relied
1 Abrahams N.O and Others v Geldenhuys N.O and Others (Reasons) (2025/001463) [2025]
ZAWCHC 78 (5 March 2025) at para 8 (Abrahams)
on the content , which stated that it is not the right, but the physical manifestation of
the rights w hich is protected. The unlawful interference with such factual control
establishes the breach of the peace, which is redressed by a spoliation order.
Therefore , the better view is that one should not enquire into the right of use or a right
of access that had been breached, for this smacks of an investigation of the merits of
the case, which is not countenanced in spoliation law. The Applicant submitted that
the contract is irrelevant. The merits issue is for another Court to decide.
[6] The Respondent submi tted that the judgment is correct. The Applicants
premised their application on the facilities they enjoyed under the contract. They were
trying to enforce a contract that had expired. They had been denied their alleged
membership in the Respondent. The Abrahams case confirms the principle that the
law protects possession, not access.
[7] The Applicant wants to protect quasi -possession . In Abrahams , the Court
referred to applicants who were seeking to disregard the contractual position of the
parties, and were asking the Court to assume that they might have no contractual
rights at all to access a club's squash courts, but are nevertheless entitled to claim the
benefits of membership. The mere fact that the applicants might or might not have had
a right derived from a contract does not amount to possession to establish an
entitlement to the mandament van spolie . The mere right to use property does no t
amount to possession.
[8] The Applicants contend that the facilities use agreement was an interim
measure to maintain the status quo , and the Court erred in characterising the
Applicants' possessory rights as contractual. The submission is surprising c onsidering
that the Applicants averred in the founding affidavit that the parties failed to reach an
agreement with the Respondent over a new facilities agreement . The new agreement
differed radically from the old agreement, and the Respondent refused to a gree to a
renewal of the old agreement. The issue between the parties was over the terms of
the contract, not over any possession or quasi -possession. (para 26 FA).
[9] The Court has carefully considered the Applicant's grounds for leave to appeal.
Section 17 raises the threshold for obtaining leave to appeal a Court’s judgment. The
Court is nevertheless persuaded that another Court would come to a different
conclusion and that the issues relating to contracts and quasi -possession in the
peculiar circu mstances of the facts of this case are compelling reasons why the appeal
should be heard.
ORDER
In the premises, the Court makes the following order:
1. The Applicants are granted leave to appeal the whole of the judgment to the
Full Bench of this division.
_____ ________________________
BHOOPCHAND AJ
Acting judge
High Court
Western Cape Division
Judgment was handed down and delivered to the parties by e -mail on 20 June 2025
Applicant’s Counsel: A Ferreira
Instructed by Boy Louw Inc
Respondent’s Counsel: P van Eeden SC
Instructed by Marais Muller Hendricks Inc