SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, P RETORIA
CASE NO: 066390/2024
DATE: 17-04-2025
(1) REPORTABLE: YES / NO.
(2) OF INTEREST TO OTHER JUDGES: YES / NO.
(3) REVISED.
DATE 17/4/25
SIGNATURE 10
In the matter between
ZAHEER CASSIM N.O. Applicant
and
GROUP OF PERSONS CURRENTLY ON AND/OR
OCCUPYING THE PRE MISES SITUATED AT [...] A[...] ,
BRYANSTON, JOHANNESBURG Respondents
20
J U D G M E N T
MAKHOBA , J:
1. This is an application by the applicants in terms
of Section 18(3) of the Superior Courts Act 10 of 2013 to
enforce the judgment that I delivered on 11 July 2024. It is
a spoliation order.
2. There was an application for leave to appeal
which was dismissed this morning.
3. For all intents and purposes therefore there is
no leave to appeal in this matter. The 1st respondent is not
represented. The 2 nd and 3 rd are represented by
Mr Maponya. 10
4. I did pose a question to Mr Maponya whether
the 2 nd and 3 rd respondents are occupying the property and
whether they are opposing the application. The answer was
in the positive, that yes they are occupying the property and
they are opposing the application.
5. Mr Raubenheimer for the applicants is of the
view that the 2 nd and 3 rd respondents, they have now
identified themselves as the occupiers of the property and 20
as part of the people that are opposing this application. It
must be remembered that in my judgment there is just a
group of persons, there is no individual identified.
6. Mr Maponya argued on the misjoinder and with
respect, I do not understand why he says there is a
misjoinder, because the parties that have been cited, they
are saying we are occupying the property and we are
opposing this application for various reasons that I am not
going to go into.
7. Importance in this application is what I said in
the judgment. I am going to quote myself on paragraph 17
of my judgment, I say the following:
"The true purpose of the mandament van 10
spolie is not the protection and vindication
of rights in general, but rather the
restoration of the status quo ante. "
8. I did ask counsel, Mr Maponya, in fact I did say
to him that even a thief in our law is protected, you must
return the status quo ante , there is no self -help that is
allowed in our law.
9. Now should this Court not protect the 20
applicants, I am not concerned about any appeal, I think
Mr Raubenheimer put it rightly so that a question about the
appeal and the merits is of no importance in such an
application, because this is a spoliation order.
10. Now they have asked me, the applicants, to
protect them and I did issue an order to protect them. They
want that order to be implemented. And there is no appeal
against my decision.
Now why can this Court not then give effect to
Section 18(3)? I think that is the question I must ask
myself, why should this Court not give effect to Section 8(3)
without going into the theory, the case law of Section 18(3).
10
From face value it is clear that with the spoliation
the Court must act as soon as possible to protect the victim.
Especially in this matter where there is no leave to appeal
granted or any appeal, why should I not protect the victim
that is the applicants? On paper and in the address by
counsel, there is no good reason furnished to me.
For that reason, I am of the view that the
application must succeed and the draft order which
encompasses or which I asked counsel to upload it and on 20
CaseLines which consist of the prayers on the notice of
motion, that draft order is then made the order of Court.
MAKHOBA , J
JUDGE OF THE HIGH COURT
DATE : ……………….