REPUBLIC OF SOUTH AFRICA
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IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NUMBER: 2025-182777
(1) REPORTABLE : ¥e8/NO
(2) OF INTEREST TO THE JUDGES : ~/NO
(3) REV ISED .
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DAT E 20 OCTOBER 2025 SIGNATURE ............................. .
In the matter between:
TLOU DORAH NTHAMANE
-and-
MTSWENI JOHANNES MAHUKE
ESTATE OF THE LATE MAHLANGU THOMAS
MAS TER OF THE HIGH COUR T, POLOKWANE
SAPS STATION COMMANDER , DEN NIL TON
1sr APPLI C ANT
1 ST RESPONDENT
2No RESPONDENT
3Ro RESPONDENT
4 TH RESPONDENT
Delivered
Date heard
Coram
BRESLER AJ:
Introduction:
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20 October 2025
This judgment was handed down electronically by circulation to
the parties' legal representatives by e-mail. The date and time
for hand down of the judgment is deemed to be 20 October 2025
at 10:00 am.
15 October 2025
Bresler AJ
JUDGMENT
[1] The Applicant applies on an urgent basis for an order restoring the possession of
the tavern furniture and refrigerators which possession was unlawfully spoliated by
the 1st Respondent. The Applicant furthermore applies for interdictory relief
restraining the 1 st Respondent with interfering with the Applicant's peaceful and
undisturbed possession of the tavern furniture and equipment pending the
finalization of the challenge to the purported will of the late Mahlangu Thomas and
the determination of the validity of the letter of executorship issued to the 1 st
3
Respondent which case is pending in the above Honourable Court under Case
number: 2025-152968.
[2] The application is opposed by the 1 st Respondent only.
[3] The Applicant's case is the following: The Applicant is the sister to the deceased,
M Mahlangu Thomas (hereinafter the 'Deceased'). Shortly after his passing and on
or about the 13th of June 2025, the 1st Respondent presented the Applicant with a
handwritten note commissioned by the Fourth Respondent purporting to be the last
Will and Testament of the Deceased. In terms of the said document, the 1st
Respondent stood to inherit the tavern of the Deceased as well as all the furniture
in the said tavern.
[4] The Applicant and the family members did not accept the validity of the said Will.
On or about the 19th of August 2025 it came to the knowledge of the Applicant that
the 3rd Respondent issued a letter of Executorship in favour of the 1 st Respondent
pertaining to the estate of the Deceased.
[5] Following the attainment of the said Letter of Executorship, the 1 st Respondent
started to initiate processes to take ownership of the Deceased 's tavern and the
movable assets and furniture contained therein.
[6] On the 1st of September 2025, instructions were provided to the legal representative
of the Applicant to institute an urgent application to declare the purported Will invalid
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ab initio and to have the Master revoke the Letter of Executorship. The matter was
enrolled for the 30
th
of September 2025 on which date same was struck from the
roll due to lack of urgency. This application is still pending.
[71 On the 2
nd
of October 2025, the 1 st Respondent, accompanied by members of the
South African Police Service (the 4th Respondent) came to the house of the
Deceased to remove the movable assets of the tavern without the family's
permission or a valid court order entitling them to do so.
[8] The Applicant submitted that the matter is urgent as she was unlawfully deprived of
possession of the business equipment and furniture by the 1st Respondent w ithout
approaching any court for the necessary relief.
[9] As stated herein before, the 1st Respondent opposed the proceedings. He
confirmed his appointment as the Executor in the estate of the Deceased . The 1st
Respondent raised in LIM/Ne the lack of urgency of the application. He submits
that the application lacks urgency because he is the Executor and, as such, he is
storing the refrigerators at his place of residence for safekeeping. They are, in any
event, not working.
[1 OJ Of particulars relevance to these proceedings is the averment by the 1 st Respondent
that he is entitled to collect the assets of the estate by virtue of his appointment as
the Executor. According to the 151 Respondent it is therefore his duty to collect
assets belonging to the Deceased estate and any alleged dispossession is thus
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lawful and justified. Insofar as the refrigerators were in the control of the Deceased
and held at the tavern premises, nobody had the right to simply remove these
refrigerators without the knowledge and consent of the Executor. The Applicant did
so unlawfully and without his consent and retained the refrigerators at her premises.
The 1 st Respondent also presented proof that these refrigerators are not part of the
assets of the deceased estate. They belong to SAB and proof of the ownership of
SAB was annexed to the Answering affidavit. The appears not to be disputed by
the Applicant.
[11] As to the urgency of the matter, the 1 st Respondent makes it clear that the Applicant
failed to set out sufficient facts that supports the extremely truncated time frames
contemplated in the Notice of Motion.
Issues that require determination:
[12] At the hearing, the Court found that there was sufficient urgency to entitle the
hearing of the matter on an expedited basis. What remains to be determined is if
the Applicant was spoliated by the 1 st Respondent and thus entitled to the relief
prayed for in the Notice of Motion.
The Applicable Legal Principles:
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[13) Spoliation is defined as the wrongful deprivation of another's right of possession. A
person who has been dispossessed of property without due legal procedure may
apply to court to have the property returned to him.
[14) The nature of a mandament van spolie is described in the seminal case of Nino
Bonino v de Lange 1, where the Learned Innes CJ at p.22 stated that:
'Spoliation is any illicit deprivation of another of the right of possession which
he has whether in regard to movable or immovable properly or even in regard
to a legal right'.
[15) In the case of Yeko v Qana 2, it was held that an applicant for spoliation remedy
must satisfy the court that -
15.1 he was in possession or had quasi possession of the property; and
15.2 that the respondent deprived him of the possession forcibly or wrongfully
against his consent.
[16) In Ngqukumba v Minister of Safety and Security3 2014 (5) SA 112 (CC) this
sentiment was expressed as follows:
1 1906 T. S . 120
2 1973 (4) SA 735 (A)
3 2014 (5) SA 112 (CC ) at 118B
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"The main purpose of the mandament van spolie is to preserve public order
by restraining persons from taking the law into their own hands and by
inducing them to follow due process."
[17] Section 26(1) of the Administration of Estates Act, Act 66 of 1965 states the
following:
'26(1) Immediately after letters of executorship have been granted to him an
executor shall take into his custody or under his control all the property, books
and documents in the estate and not in the possession of any person who
claims to be entitled to retain it under any contract, right of retention or
attachment.'
[18] This provision is mandatory - it encompasses the crux of what the duties of an
Executor entails. Executors are, after all, the individuals that oversee the
administration of the deceased estate.
[19] The Applicant is thus incorrect in her submission that the Executor must have some
form of Court order or authority before assets can be removed or collected. The
authority of the Executor is cemented in the provisions of Section 26. An Executor
is not a mere procurator or agent of the heirs but is legally vested with the
administration of the estate.4
4 Ma/comes v Kuhn 1915 CPD 852
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[20] But section 26 pertinently refers to the 'property, books and documents in the
estate'. The 1
st
Respondent presented evidence that the refrigerators does not
belong to the deceased estate. They belong to SAB. It is clear that they are not
'property ... in the estate.'
[21] Section 11 of the Administration of Estates Act provides for this incident. It
specifically caters for persons, who immediately after the death of the deceased has
possession or custody of any property, book or document which belonged to, or was
in the possession or custody of the deceased at the time of his death. Such person
must, immediately after the death, report such property to the Master. He / she
must also, upon written demand , surrender the property to the Executor unless he
/ she has some right to remain in retention thereof.
[22] It is quite evident that the Executor must take possession and control of property
forming part of the deceased estate and property that was in possession or under
the control of the deceased.
[23] It is apposite to note that neither party addressed the application and the implication
of Section 11 of the Administration of Estates Act. The Applicant's contention is
that the 1 st Respondents appointment as Executor does not entitle him to take the
law into his own hands without recourse to the court or the Master. This contention
is rebutted by the trite provisions of the Administration of Estates Act which, in
fact, directs that the Executor must take immediate possession of such property
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belonging to the deceased estate or in the possession or under the control of the
deceased.
[24] Retaking assets that belonged to the deceased without a directive from the court or
the master is lawful and aligns with the trite duty of an executor. Retaking
possession of assets that were previously in possession of the deceased, or under
his control, is subject to a prior written demand . In this instance, no allegation is
made of such demand , nor is the absence of the written demand raised by the 1 st
Respondent. The Court can only determine if the case as presented by the 1 st
Respondent is valid. In this instance it does not pass muster since the Executor
does not need the intervention of either the Master or the Court before collecting
assets that was under the control of the Executor. He is entitled to do so ex lege.
[25] Having said the aforesaid, and in so far it may be relevant having found that there
is no unlawful dispossession, the issue that remains is who was in possession of
the assets at the time that it was dispossessed by the 1 st Respondent. In this regard,
it is common cause between the parties that the refrigerators were kept at the
premises that the deceased utilised for his tavern. Some time after his passing,
these refrigerators were removed to the parental home of the Applicant without the
knowledge or consent of the 1 st Respondent, being the Executor in the Estate.
[26] Can it thus be said that the Applicant was in possession thereof for purposes of a
mandam ent van sp o lie?
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[27] A spoliation order is available to any person who is:
27.1 making physical use of property to the extent that he derives a benefit
from such use;
27.2 intends by such use to secure that benefit to himself; and
27.3 is deprived of such use and benefit by a third person5.
[28] Possession need not be possession in the legal sense. It suffices if the applicant
factually held (detentio) the thing with the intention (animus) of securing some
benefit for himself.6 Both elements, viz detentio and animus, must be present.7
Two elements are thus essential for the possession which is protected against
spoliation namely detentio (the physical holding of and control of the thing)
and animus (the intention of securing some benefit for oneself).
[29] In the matter Mbuku v Mdinwa 8 at 222 F - H the following was stated:
"In any event, I am of the view that an agent who has no interest in the property
which he holds for his principal, or who derives no benefit from holding it, is
not entitled to claim the relief of a mandament van spolie. One should not
s Bennett Pringle (Pty) Ltd v Adelaide Municipality 1977 1 SA 230 (E)
6 Nienaber v Stuckey 1946 AD 1049 1053; Yeko v Qana 1973 (4) SA 735 (A ).
7 Meyer v G/endinning 1939 CPD 84. See also Eng/ing v Bosiel 1994 (2) SA 388 (B); Du Randt v Du
Randt 1995 (1) SA 401 (0)
8 1982 (1) SA 219 (Tk) at 222F
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forget that it is a remedy which is available to a possessor; it has never, to my
knowledge, been extended, except perhaps inadvertently, to a mere detentor.
But the animus possidendi which is required to transform detention into
possession is not the intention required of old for so-called civil possession; it
is no more than the intention to hold the thing in question for one's own benefit
and not for another. And a detentor who does not have that intention is indeed
merely a detentor".
[30] In this case, the refrigerators were presumably removed to the house of the
Applicant's parents. It was not in her possession or in her control. More importantly,
the Applicant specifically testifies that the refrigerators were removed from the
tavern to safekeep same for the sake of the deceased estate. She did not testify
that she had the requisite animus in respect of these items. At most, she was a
de ten tor.
[31] As such, the Applicant also fails to meet the requirements for possession. The
application can therefore not succeed.
Costs:
[32] There is no reason why the costs should not follow the outcome of the proceedings.
Having regard to the nature of the proceedings, the level of complexity thereof and
the importance to the respective parties, costs on Scale Bis warranted.
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Order:
[33] In the result the following order is made:
33.1 The Application is dismissed.
33.2 The Applicant is ordered to pay the costs including the costs to
counsel on scale B.
APPEARANCES:
FOR THE APPLICANT
INSTRUCTED BY
M BRESLER AJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
Adv.Lubengo
Shabangu Dineo Attorneys
Polokwane
dineo@shabanguattorneys.co.za
FOR THE FIRST RESPONDENT
INSTRUCTED BY
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Adv. M Rakgogo
Kagiso Phomolo Matlala Inc
Polokwane
Matlalakagiso9@gmail.com
admin@shabanguattorneys .co.za