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, JOHANNESBURG
Case number: 2025/132162
[1] REPORTABLE: YES
[2] OF INTEREST TO OTHER JUDGES: YES
[3] REVISED: NO
SIGNATURE. DATE: 2 OCTOBER 2025
In the matter between:
LERATO WELHEMINA MARIMA First Appellant
RAPULANG MARIMA Second Appellant
and
JOSEPH HLABANANG MAKOFANE First Respondent
MLONYENI NOZIBIELE Second Respondent
Coram: Dippenaar, Crutchfield JJ et Pullinger AJ
Heard: 03 September 2025
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives via e- mail and by being uploaded to the electronic
2
platform. The date and time for hand- down is deemed to be 10h00 on 2 October
2025.
Summary: Automatic appeal in terms of s 18(4) of Superior Courts Act , 2013 – principles
pertaining to “exceptional circumstances” and “irreparable harm ” restated and
analysed – the nature and ambit of the court’s discretionary powers under section
18(3) considered and found to be the weight to be afforded to the unsuccessful
party’s prospects of success on appeal as part of determining whether either of the
parties faced irreparable harm - exceptional circumstances - appellants' attempt to
undermine the Rule of Law in respect of the earlier spoliation order by contriving to
create a defence of impossibility and resulting in the respondents’ effective eviction
without a court order - irreparable harm to respondents – no irreparable harm to
appellants – the appellants have lawful remedies that negate any contentions of
irreparable harm -principles pertaining to spoliation restated and analysed – principles
relating to joinder of alleged co- occupiers and the application of the Prevention of
Illegal Eviction and Unlawful Occupation of Land Act, 1998 considered - no
misdirection on part of court a quo
ORDER
Automatic appeal in terms of section 18(4)(a)(ii) of the Superior Courts Act, 2013
from: the Gauteng Division of the High Court, Johannesburg (De Lima Jorge AJ sitting
as the court of first instance).
1. The appeal is dismissed;
2. The appellants are directed to pay the respondents’ costs, with the costs of
counsel to be taxed on scale B.
3
JUDGMENT
PULLINGER AJ (DIPPENAAR J AND CRUTCHFIELD J CONCURRING)
INTRODUCTION
[1] This is an appeal in terms of section 18(4) (a)(ii) of the Superior Courts Act,
2013 (“the Act”) against the judgment and order of De Lima Jorge AJ (“the
court a quo”) made pursuant to an application launched by the respondents in
terms of section 18(3) of the Act.
[2] The court a quo uplifted the suspension of the order it g ranted in an earlier
spoliation application between the parties in which the respondents were
successful and in respect of which, the appellants’ had applied for leave to
appeal.
THE FACTS
[3] At all material times prior to 1 August 2025 the respondents had enjoyed
peaceful and undisturbed possession of the immovable property situate at
8[…] B[…] Drive, J[…] View, Midrand (" the property"). A dwelling house is
erected on the property. The respondents lived in the dwelling – it was their
home.
4
[4] The appellants are the registered owners of the property. A mortgage bond is
registered over the p roperty in favour of The Standard Bank of South Africa
Limited.
[5] There is other pending litigation between the parties concerning the p roperty.
The pending litigation is not material to this appeal. It is clear, nonetheless,
that there is significant acrimony between the parties and the appellants have
made demand on the respondents to vacate the property.
[6] The appellants are in arrears with their obligations to the mortgagor . On 15
July 2025, the appellants’ mortgagor gave notice as contemplated in section
129(1)(a) of the National Credit Act, 2005 to the appellants.
[7] On 1 August 2025 the appellants, accompanied by two unidentified men 1 and
an unidentified woman attended at the p roperty. They forced entry into the
property using power tools and changed the locks to the main door and the
security gate of the dwelling. At th is time, the appellants informed the
respondents that the unknown men would immediately move into the dwelling
and “pay rent” to the appellants " … even if that meant living with [the
respondents]."
1 These two individuals would later be identified as Nishlan Morobela Mohala and Thomas Simon
Monate. The respondents suggested that Mohala and Monate are related to the appellants. As this
arose in the replying affidavit in the section 18(3) application, we do not have regard to this
suggestion (Associated Institutions Pension Fund and Others v van Zyl and Others 2005 (2) SA
302 (SCA) at [35]). For purposes of this judgment, we shall refer to them as “the unknown men”.
5
[8] After changing the locks to the dwelling, the appellants allowed the
respondents re- entry to the dwelling on the condition that they withdraw all
pending court proceedings by Sunday, 3 August 2025.
[9] On the evening of 4 August 2025, the appellants returned to the p roperty with
the unknown men.
[10] The appellants, together with these two unknown individuals accessed the
dwelling and ignited some or other substance inside the dwelling causing it to
fill with dense noxious smoke. This smoke caused the respondents to
experience acute breathing difficulties and, fearing for their safety , they fled
the property. They spent the night of Monday 4 August 2025 in their vehicle.
[11] The following morning, the respondents found the two unknown men asleep
on mattresses in the living room of the dwelling.
[12] Since that date, the appellants , through the unknown men, have been in
possession and control of the dwelling.
[13] The respondents ’ furniture, effects and possessions remain inside the
dwelling.
[14] As a result, the respondents have been constrained to find shelter in guest
houses and hotels at a cost to them.
6
[15] The appellants ’ conduct aforesaid, caused the respondent s to launch an
urgent application on 6 August 2025 for the restoration of peaceful and
undisturbed possession of the p roperty and the removal of the unknown men
through whom the appellants exercise possession and control of the dwelling
(‘the spoliation application”).
[16] On 8 August 2025 De Lima Jorge AJ heard the spoliation application.
[17] The learned acting judge found for the respondents . He was particularly
critical of the appellants concluding that:
"the respondents denials of the key facts averred by the applicants [a reference to the
respondents herein] together with facts alleged by the respondents do not raise a real,
genuine and bona fide disputes [sic]. The facts alleged by the respondents are
far-fetched or clearly untenable; and therefore are rejected on the papers;"2
[18] As a result, an order was issued directing the appellants to, inter alia, forthwith
restore the respondents’ peaceful and undisturbed possession of the p roperty
and the dwelling and ancillary relief directed at making that order effective.
[19] On the evening of 8 August 2025 , the appellants launched an application for
leave to appeal.
2 Judgment in spoliation application, paragraph 47.4
7
[20] The appellants' application for leave to appeal was met , on 10 August 2025,
with an application in terms of section 18(3) of the Act . De Lima Jorge AJ
heard this application on 12 August 2025.
[21] On 13 August 2025, De Lima Jorge AJ handed down judgment in favour of
the respondents.
[22] The appellants then exercised their right to an automatic appeal in terms of
section 18(4)(a)(ii) of the Act.
[23] It is the appeal against the judgment and order of 13 August 2025 that is now
before us.
THE ISSUES
[24] The case argued by the appellants before us was much the same as was
argued by them in the court below .3 The appellants’ case was summarised by
the court a quo as follows:
"5. … the Applicants [a reference to the Respondents herein] still have access and
a set of keys to the property, their belongings are still in the property; were
seen using the property; consented to co -occupation; have alternative
accommodation; the two individuals whom [sic] were placed in the property by
the Respondents [a reference to the appellants herein] are in fact
co-occupants. Accordingly, the two individuals currently at the premises were
not joined to the proceedings and thus cannot be evicted without compliance
3 Judgment in section 18(3) application, paragraphs 5 to 7
8
with PIE [a reference to the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act, 1998]. Finally, the Respondents contend that the
property faces foreclosure which the two individuals may help prevent through
payment of rental.
6. As was the case in the initial spoliation application, the Applicants allege that
on 1 August 2025, the Respondents unlawfully changed the locks on the main
door and security gate to the main house and installed two unknown individuals
on the property. It should be noted that the Applicants alleged that conditional
access was granted by the Applicants, by the Respondents from 2 August to
3 August 2025. Namely, the condition being that the Applicants would be
permitted to continue to reside at the property if they withdrew any and all
pending litigation against the Respondents. The Applicants' contention in this
regard is that the aforementioned condition was not accepted by the
Applicants, and a result of which on 4 August 2025 the Respondents returned
with the unknown individuals and ignited noxious substances, which resulted in
the Applicants having to vacate the property. These acts, it is contended,
rendered the premises uninhabitable and forced the Applicants to seek
emergency accommodation.
7. The Respondents deny the existence of exceptional circumstances contending
that the Applicants retain access to the property, the Applicants are by
agreement co-occupants of the property together with the unknown individuals.
They furthermore have alternative accommodation at their disposal in the form
of their property situate at …, and are employed and therefore have the means
to secure alternative accommodation. In support of the first two aforementioned
factors the Respondents contend that the Applicants access ed the property on
8 August 2025 without any hinderance or obstruction and were seen doing
laundry."
[25] Again, the court a quo criticised the appellants for their failure to provide a
[25] Again, the court a quo criticised the appellants for their failure to provide a
reasonable explanation for their undisputed conduct and for their failure to lay
any basis for the alleged agreement in terms of which the appellants contend
9
that the respondents agreed to the unknown men co -occupying the property
with the respondents. 4
[26] In the circumstances, this appeal raises the following questions:
[26.1] did the respondents satis fy the requirements for relief in terms of
section 18(3) of the Superior Courts Act; and
[26.2] do the appellants enjoy prospects of success on appeal, regard
being had to the position of the unknown men as “co -occupiers” of
the property who, the appellants argue were necessary parties to the
spoliation application and who enjoy the protection of the Prevention
of Unlawful Eviction from and Unlawful Occupation of land Act, 1998
(“PIE”) making them impervious to any order requiring them to
vacate the property.
DISCUSSION
Section 18 of the Act
[27] The Act came into effect on 23 August 201 3. With that came a new regime
created by section 18. At first blush, section 18 is a codification of the
common law.
4 Judgment in section 18(3) application, paragraphs 19 and 21
10
[28] At common law, the execution or enforcement of a judgment or order 5 that
was final, or final in effect,6 was suspended pending an application for leave to
appeal or a subsequent appeal, and because of the High Court’s inherent
power to control its own processes, it could authorise the enforcement thereof
pending an application for leave to appeal or a subsequent appeal. 7 The
Rules of Court 8 provided a mechanism to a litigant seeking this relief that, at
its core, permitted a judgment or order to be carried into execution pursuant to
the exercise of a wide judicial discretion, fundamentally, on just and equitable
grounds.
9
[29] Section 18(1) of the Act provides for the suspension of a final 10 order pending
an application for leave to appeal and any subsequent appeal . Section 18(3)
is an empowering provision; as an empowering provision, it empowers a court
to authorise the upliftment of the suspension in section 18(1) in exceptional
circumstances and stipulates the requirements that must be satisfied for this
power to be exercised.
5 For a discussion on the meaning of “judgment or order” and finality as a condition to appealability
see Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 531 B/C to 536 C.
6 Ibid; Pitelli v Everton Gardens Projects CC 2010 (5) SA 171 (SCA) at [27] and [31].
7 South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534
(A) at 544 H to 546 A.
8 The requirements for relief in terms of Rule 49(11) were, substantially, those of the common law as
described by Corbett JA in South Cape Corporation. In this regard, see Tuckers Land and
Development Corporation (Pty) Ltd 1980 (1) SA 691 (W) at 693 I to 694 D ; Minister of Social
Development, Western Cape and Others v Justice Alliance of South Africa and Another [2016]
ZAWCHC 24 (1 April 2016) at [16] to [19]. Rule 49(11) was repealed on 17 April 2015.
9 South Cape Corporation at 545 C/D
9 South Cape Corporation at 545 C/D
10 Compare section 18(2) of the Act which allows for an appeal against a judgment or order that is
not final but may lead to certain desirable results. In circumstances where leave to appeal is
allowed in an instance contemplated in section 18(2), the order is not suspended.
11
[30] The ambit, proper interpretation and application of section 18(3) of the Act has
generated substantial judicial precedent as litigants grapple with the effects of
the codification of the common law rules concerning the enforcement of court
orders pending an appeal.11
[31] While it is long settled that “ exceptional circumstances” as required in section
18(1) of the Act and the existence and non- existence of irreparable harm on
the part of an applicant and respondent respectively , as contemplated in
section 18(3) , concern discrete factual findings a court must make before
uplifting the suspension, 12 three issues loom large in our developing
jurisprudence surrounding these provisions of the Act . These issues concern
the role of "prospects of success on appeal" , any residual judicial discretion a
court enjoys and the interplay between "irreparable harm" and "exceptional
circumstances".
[32] In Incubeta,
13 Sutherland J held that prospects of success on appeal do not
play a role in the adjudication of an application in terms of section 18(3) of the
Act because the discretion afforded by the common law was not incorporated
therein.
11 On the developing jurisprudence surrounding section 18(3) of the Superior Courts Act, see the
discussion in Zuma v Downer 2024 (2) SA 356 (SCA) at [16] to [19] and the authorities cited in
paragraph [16].
12 Incubeta Holdings and Another v Ellis and Another 2014 (3) SA 189 (GSJ) at [18] to [22] and [29] ;
followed in, inter alia, Ntlemeza v Helen Suzman Foundation and Another 2017 (5) SA 402 (SCA)
at [45] to [47]
13 Ibid at [24]
12
[33] The full bench in Justice Alliance 14, Binns-Ward J (Fortuin and Boqwana JJ
concurring), viewed the provision differently. That court considered prospects
of success on appeal to remain a relevant factor in granting relief. I
understand Binns-Ward J , to say that prospects of success forms part of a
residual discretion sourced in the common law meaning that , even if the
requirements of irreparable harm and exceptionality are satisfied, a court
retains a general wide discretion to grant or refuse leave to execute and to
determine conditions upon which the right to execute should be exercised. 15
Binns-Ward J said:
"… the less sanguine a court seized of an application in terms of s 18(3) is about the
prospects of the judgment at first instance being upheld on appeal, the less inclined it will
be to grant the exceptional remedy of execution of that judgment pending the appeal.
The same quite obviously applies in respect of a court dealing with an appeal against an
order granted in terms of s 18(3). The position is very much akin to that which pertains
when interim interdictory relief pending a judicial review is being considered."16
[34] The Supreme Court of Appeal in University of the Free State 17 held that the
prospects of success have a role to play when these are before the court ,
thus signalling the existence of a continuing judicial discretion. It did not
consider the nature of that discretion. In Ntlemeza18 the Supreme Court of
Appeal took the same approach and added the caveat that considerations of
14 Minister of Social Development Western Cape and Others v Justice Alliance of South Africa and
Another [2016] ZAWCHC 34 at [26]
15 South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (2) SA 118
(T) at 545B - C
16 At [27]
17 University of the Free State v Afriforum and Another 2017 (1) All SA 79 (SCA) at [15]
18 Ntlemeza at [44]
13
prospects of success are important where there is still an appeal pending. In
Knoop19 the Supreme Court of Appeal, per Wallis JA, said:
"Our finding that the three requirements for making an execution order were not
established means that we did not have to consider whether there is a discretion once
they are present and, if so, whether the prospects of success should affect its exercise.
There may be difficulties if the High Court takes the prospects of success into account in
granting an execution order, because it is not clear that the court hearing an urgent
appeal under s18(4) will always be in a position to assess the weight of this factor. As I
have noted, in both UFS v Afriforum and Ntlemeza the court disposed of the appeal by
disregarding the prospects of success on appeal. The urgency of the appeal almost
inevitably dictates that in this court, and possibly in a full court, the appeal court will not
have the record before it and will be confined to assessing the prospects of success in
the main appeal from the judgment alone. The usual principle that an appeal court
decides the appeal on the record before the High Court cannot apply in those
circumstances. If the language of s18(4) confers a discretion, is that a full discretion or a
power, combined with a duty to exercise that power on proof of the requirements for its
exercise? These issues may warrant a reconsideration of the approach in Justice
Alliance on an appropriate occasion."
[35] The current position is, as stated by Ponnan JA in Tyte, that a court is
enjoined to have regard to all the facts and then test whether the requisite
jurisdictional facts or exceptional circumstances and irreparable harm have
been established.20 Ponnan JA held:
“The overarching enquiry is whether or not exceptional circumstances subsist. To that
end, the presence or absence of irreparable harm, as the case may be, may well be
subsumed under the overarching exceptional circumstances enquiry. As long as a court
subsumed under the overarching exceptional circumstances enquiry. As long as a court
is alive to the duty cast upon it by the legislature to enquire into, and satisfy itself in
19 Knoop and Another NNO v Gupta 2021 (3) SA 135 (SCA) at 156B - D
20 Tyte Security Services CC v Western Cape P rovincial Government and Others 2024 (6) SA 175
(SCA) at [10], [13] and [14].
14
respect of, exceptional circumstances, as also irreparable harm, it does not have to do
so in a formulaic or hierarchical fashion.”21
[36] This approach gives effect to the purpose for which the provision exists – to
afford an effective remedy to a successful litigant that would otherwise be
defeated during the interregnum of the appeal process. 22
[37] The Supreme Court of Appeal’s exposition of the interplay between
“exceptional circumstances” and “irreparable harm” in Tyte explains that the
facts that found both elements may be intertwined. The elements of
“exceptional circumstances ” and “irreparable harm” must separately be
present for relief to be granted. 23 And, as relief in terms of section 18(3)
remains discretionary, prospects of success on appeal influence the ultimate
decision as to whether to grant relief . 24 I return to the issue of discretion
below.
21 ibid at [16]
22 On the common law position, and before the position brought about by section 34 of the
Constitution of the Republic of South Africa, 1996 see Reid and Another v Godart and Another
1938 AD 511 at 513, cited in South Cape Corporation at 545 C cited which is, in turn, cited by the
Supreme Court of Appeal in Zuma v Downer and Another 2024 (2) SA 356 (SCA) at [19]. In Chief
Lesapo v North West Agricultural Bank and Another 2000 (1) SA 409 (CC) the Constitutional
Court, at [13] links the section 34 right to dispute resolved by a court of law to execution of that
order. Similarly, the Modderklip line of cases conclude that an order which cannot be given effect
to defeats a successful litigant’s section 34 rights ( President of the R epublic of South Africa and
Another v Modderklip Boerdery (Pty) Ltd 2005 (3) SA 3 (CC) at [39] to [51]). See further, Incubeta
at [27] , Knoop NO v Gupta 2021 (3) SA 135 (SCA) at [1] citing Philani -Ma-Afrika and Others v
Mailula and Others 2010 (2) SA 573 (SCA) at [20], Zuma at [23] and [24], and Tyte at [18] to [21]
23 Tyte at [13] to [15]; Knoop at [47]
23 Tyte at [13] to [15]; Knoop at [47]
24 ibid at [18], [27] and [28]
15
The spoliation remedy
[38] The purpose of the spoliation remedy is to restore factual possession to a
person who has been unlawfully dispossessed of property or subjected to an
unlawful interference in rights that such a person exercises.25
[39] The enquiry undertaken by a court is ordinarily narrow. It concerns two factual
issues, the first one being whether the person claiming to have been
despoiled was factually and legally the possessor of the property or rights in
question and, the second being whether that person's use and enjoyment of
that property or rights have unlawfully been taken away or interfered with.
Once those factual findings are made, the court restores possession forthwith
and without any enquiry into the underlying reason for the possession.26
[40] To this end, the spoliation remedy strongly enforces the Rule of Law principle
in section 1(c) of the Constitution. It serves as a bulwark against self -help.
The Constitutional Court's decision in Chief Lesapo 27 holds that self -help is
inimical to a society in which the Rule of Law prevails and, thus, taking the law
into one's own hands is inconsistent with the fundamental principles of our
law.
25 Nino Bonino v De Lange 1906 TS 120 at 122; Plaatjie and Another v Olivier N O and Others 1993
(2) SA 156 (O) at 157; Zulu v Minister of Works, KwaZulu Natal and Others 1992 (1) SA 181 (D) at
187
26 Ness and Another v Greef 1985 (4) SA 641 (C) at 647 C to G; Ngqukmba v Minister of Safety and
Security and Others 2014 (5) SA 112 (CC) at [13]
27 At 415C – D; Ngqukmba at 119 A
16
[41] The central question i n the respondents’ spoliation application concerned
whether the appellants' conduct unlawfully deprived the respondents of their
rights in and to the property.
[42] There was no dispute that the p roperty had been occupied by the
respondents as their home for an extended period of time prior to the
appellants’ conduct. It was also not in dispute that the appellants conducted
themselves in the manner outlined above. The appellants denied any unlawful
conduct on their part , asserting that the respondents still enjoy access to the
property and the installation of the unknown men was pursuant to an
agreement with the respondents. The ostensible explanation for the alleged
agreement was that the unknown men would pay rent to the appellants (i.e.
that they had entered into a lease agreement with the appellants). These
“rent” payments would allow the appellants to address their arrears to the
mortgagor.
[43] The appellants’ departure point suggests that the respondents’ ability to
access the dwelling means that they were not despoiled. I am unable to agree
with this contention. In Mostwagae
28 the Constitutional Court considered
whether excavations on a servitude next to the outer wall of the applicants ’
homes, exposing the foundations of that building, constituted a disturbance of
their possession that amounted to an eviction without a court order. It held:
28 Motswagae v Rustenburg Local Municipality 2013 (2) SA 613 (CC) at [12]; see further Afzal v
Kalim 2013 (6) SA 176 (ECP) at [19] and [20]
17
“The first question to be answered is whether s 26(3) of the Constitution is sufficiently
wide to ensure protection of the applicants in their occupation of their homes. In my view,
it is. Its provisions would be pointless and afford no protection at all if municipalities and
other owners were permitted to disturb occupiers in the peaceful occupation of their
homes without a court order. Section 26(3), by necessary implication, guarantees to
any occupier peaceful and undisturbed occupation of their homes unless a court
order authorises interference. The idea that owners are able to do so without offending
the provisions of s 26(3) need simply be stated to be rejected. The underlying point is
that an eviction does not have to consist solely in the expulsion of someone from
their home. It can also consist in the attenuation or obliteration of the incidents of
occupation.” (emphasis added)
[44] The appellants’ case that the respondents were not spoliated is therefore
unsustainable.
[45] Superficially, a factual dispute subsists surrounding the oral agreement that
allegedly resulted in the unknown men being installed at the property. Given
that the spoliation remedy is final in nature, the appellants argued that this
dispute ought to have been resolved in their favour.
29
[46] The appellants did not adduce any evidence of the alleged agreements with
the unknown men and the respondents respectively. The appellants , further,
failed to place any form of corroboratory evidence from the unknown men
before the court. No explanation was forthcoming as to why this was not
adduced in circumstances where the unknown men are, allegedly, the
appellants’ tenants and, it would appear, there was no impediment to
adducing this evidence.
29 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E - 635C
18
[47] It is in these circumstances that t he appellants' argument loses sight of the
principle in Wightman,30 that factual disputes cannot be seen in isolation from
the greater context of the factual setting. Wightman holds that a proper
interrogation of all the facts is required to determine whether a material
dispute of fact indeed exists. Wightman holds further that a litigant must
seriously and unambiguously engage with the facts said to be disputed and
adduce countervailing facts where those facts are within a party’s knowledge.
The discussion on factual disputes in Wightman concludes with a warning
that:
“A litigant may not necessarily recognise or understand the nuances of a bare or general
denial as against a real attempt to grapple with all relevant factual allegations made by
the other party. But when he signs the answering affidavit, he commits himself to its
contents, inadequate as they may be, and will only in exceptional circumstances be
permitted to disavow them. There is thus a serious duty imposed upon a legal adviser
who settles an answering affidavit to ascertain and engage with facts which his client
disputes and to reflect such disputes fully and accurately in the answering affidavit. If that
does not happen it should come as no surprise that the court takes a robust view of the
matter.”
[48] Ponnan JA, in Tyte, 31 dealing with the question of onus, refers to an
evidentiary burden that faces a respondent in section 18(3) proceedings. In
this context he said:
“… although s 18(3) casts the onus (which does not shift) upon an applicant, a
respondent may well attract something in the nature of an evidentiary burden. This would
30 Wightman t/a JW Construction v Headfour Pty Limited and Another 2008 (3) SA 371 (SCA) at [11]
and [13]; Naidoo and Another v Sunker and Others [2011] ZASCA 216 at [23]
31 At [15]
19
be especially so where the facts relevant to the third [a reference to the absence of
irreparable harm to the unsuccessful party] are peculiarly within the knowledge of the
respondent. In that event it will perhaps fall to the respondent to raise those facts in an
answering affidavit to the s18 application, which may invite a response from the applicant
by way of a replying affidavit.”
[49] The principal in both Wightman and Tyte is that bald and unsubstantiated
denials will not suffice in circumstances where a respondent fails to adduce
facts within its knowledge to rebut a prima facie case against it.
[50] At this point, it is necessary to restate certain principles on what constitutes a
fact.
[51] In Swissborough32 Joffe J restated the distinction between primary and
secondary facts. Primary facts were described as those which found the basis
for an inference as to the existence or non- existence of further facts which, in
relation to primary facts, are inferred or secondary facts.
[52] A secondary fact, unsupported by a primary fact , is a mere conclusion of law
and in respect of which, the decision in Die Dros
33 holds, are no more than the
deponent's own conclusions and do not constitute evidential material capable
of supporting a cause of action or defence.
32 Swissborough Diamond Mines v Government of the RSA 1999 (2) SA 279 (T) at 324E – F; cited
with approval in, inter alia , Quartermark Investments Pty Ltd v Mkhwanazi and Another 2014 (3)
SA 96 (SCA) at [13]
33 Die Dros (Pty) Limited and Another v Telefon Beverages CC and Others 2003 (4) SA 207 (C) at
[28]
20
[53] The appellants ’ version, when properly tested against the aforegoing
principles, does not give rise to a factual dispute and advances little more
than bald conclusions. Accordingly, the findings of the court a quo and its
criticism of the appellants' case cannot be faulted.
[54] The ineluctable conclusion in the circumstances is that the respondents were
spoliated from the property. This entitled them to an order that they be
restored to their possession of the property forthwith. The ancillary relief
granted to the respondents by the court a quo was necessary for the effective
ante omnia restoration of their possession.34
Exceptional circumstances and irreparable harm
[55] The respondents have effectively, as a result of the appellants ’ conduct, been
evicted from their home without an order of court . Their undisputed evidence
is that they have been unable to secure other accommodation with any
degree of security of tenure, are running out of money and face the spectre of
living in their vehicle. These facts, when coupled by the presence of the
unknown men who use the respondents ’ furniture, appliances and are
consuming their food, compounds the financial loss they are suffering. This,
they assert, will occasion irreparable harm to their dignity, health and safety
34 Zinman v Miller 1965 (3) SA 8 (T) at 12 C/D; Eskom Holdings SOC Ltd v Masinda 2019 (5) SA 386
(SCA) at [10]
21
and founds the existence of exceptional circumstances as contemplated in
section 18(3) of the Act.
[56] In Machele35 the Constitutional Court was confronted with an urgent
application for direct access for leave to appeal against an order of the then
South Gauteng High Court, Johannesburg which granted an eviction order in
favour of one Mr Mailula and, simultaneously, granted leave to appeal to the
Supreme Court of Appeal while later grant ing an order authorising the
execution of the eviction order pending the appeal.
36
[57] In Machele, the applicants, much like the respondents herein, contended for
irreparable harm if the eviction order were to be executed because they would
lose their homes. The case advanced by Mr Mailula before the Constitutional
Court was that the applicants were not the " poorest of the poor " and could
therefore afford rental accommodation if evicted. H e contended, further, that
the applicants had alternative accommodation available to them. So, Mr
Mailula’s argument went, the respondents would not suffer irreparable harm if
evicted pending their appeal to the Supreme Court of Appeal . The
Constitutional Court rejected that argument under the rubric of " harm to the
applicants" holding that:
"… the sudden loss of one’s home is an indignity for anyone, and the protections
provided by the Constitution apply regardless of socio-economic status."
35 Machele and Others v Mailula and Others 2010 (2) SA 257 (CC)
36 At [3]
22
[58] The Constitutional Court's approach is instructive of the approach to be taken
in this case. It does not matter whether the respondents have been able to
sojourn in guest houses and hotels temporarily, nor for that matter is it
relevant that they can still have access to the property or that they own other
property;
37 the appellants' conduct has placed them in an unenviable position
that the law does not countenance. This founds the “exceptional
circumstances” that section 18(1) of the Act contemplates. 38 It also establishes
the respondents’ irreparable harm that section 18(3) of the Act requires.
[59] The appellants resisted the spoliation application and the section 18(3)
application on the further ground that the unknown men had now taken
occupation of the p roperty, occupied the property as their “home” and
consequently, could not be ordered to vacate it without PIE being followed.
[60] The effect of the argument is to raise a third party's ostensible right to
protection against eviction without an order of court as a shield against
complying with the order made in the spoliation application.
[61] I find that the appellants’ argument to be a contrivance.
[62] In my view, the appellants placed the unknown men into the p roperty with the
intention of making the respondents’ continued occupation of the property as
37 It appears to be common cause that the immovable property owned by the respondents is
inhabitable.
38 Incubeta at [22]; University of the Free State at [12] and [13]
23
unpleasant as possible to coerce the respondents into vacating it without the
appellants being constrained to seek relief in terms of PIE themselves. This is
impermissible.39
[63] To the extent that the respondents could be considered “unlawful occupiers”
for purposes of PIE , it appears to me that the appellants’ conduct may offend
the prohibition of evicting an unlawful occupier without an order of court and
thereby constitute an offence.
40
[64] It is true that Betlane41 is authority for the proposition that where the premises
is already occupied by a bona fide third party, that premises is as a matter of
fact not available and restitution in terms of the spoliation remedy is
impossible. The test, however, is objective.
42
[65] I have already addressed the contrivance that is the appellants' suggestion
the unknown men came to occupy the property with the respondents' consent.
39 Motswagae at [16]
40 Section 8 of PIE provides:
“(1) No person may evict an unlawful occupier except on the authority of an order of a competent
court.
(2) …
(3) Any person who contravenes a provision of subsection (1) or (2) is guilty of an offence and
liable on conviction to a fine, or to imprisonment not exceeding two years, or to both such fine
and such imprisonment.”
41 Betlane v Shelly Court CC 2011 (1) SA 388 (CC) at [36]
42 Administrator, Cape and Another v Ntshwaqela and Others 1990 SA 705 (A) at 720 H; Schubart
Park Residents Association and Others v City of Tshwane Metropolitan Municipality and Another
2013 (1) SA 323 (CC) at [19] and [24]
24
[66] The position on the papers is that the unknown men are individuals through
whom the appellants have gained possession and exercise possession of the
property. I agree with the respondents’ contention that the unknown men are
little more than the appellants’ “security guards”.
[67] Consequently, it is not objectively impossible for the appellants to cause the
unknown men to vacate the p roperty because they are in possession of the
property (in the loosest sense) through the appellants.
[68] It is in this context that the appellants ’ contentions surrounding joinder of the
unknown men as necessary parties to the spoliation application and their
occupation of the property as their home fall to be evaluated.
[69] Mlambo JA, in Gordon,
43 said:
“The issue in our matter, as it is in any non-joinder dispute, is whether the party sought to
be joined has a direct and substantial interest in the matter. The test is whether a party
that is alleged to be a necessary party, has a legal interest in the subject -matter, which
may be affected prejudicially by the judgment of the court in the proceedings concerned.
In the Amalgamated Engineering Union case (supra) it was found that 'the question of
joinder should . . . not depend on the nature of the subject -matter . . . but . . . on the
manner in which, and the extent to which, the court's order may affect the interests of
third parties'. The court formulated the approach as, first, to consider whether the third
party would have locus standi to claim relief concerning the same subject -matter, and
then to examine whether a situation could arise in which, because the third party had not
43 Gordon v Department of Health, KwaZulu- Natal 2008 (6) SA 522 (SCA) at [9]. The same test was
applied by the Constitutional Court in Zulu and Others v eThekwini Municipality and Others 2014
(4) SA 590 (CC) at [16]. In Zulu, the facts were quite different to those in this appeal (paragraphs
[21] to [29].
25
been joined, any order the court might make would not be res judicata against him,
entitling him to approach the courts again concerning the same subject -matter and
possibly obtain an order irreconcilable with the order made in the first instance. This has
been found to mean that if the order or 'judgment sought cannot be sustained and carried
into effect without necessarily prejudicing the interests' of a party or parties not joined in
the proceedings, then that party or parties have a legal interest in the matter and must be
joined.”
[70] In line with the approach in Gordon, we pose the rhetorical question whether
the unknown men would enjoy locus standi in a spoliation application
themselves?
[71] The full bench decision in Ness 44 deals with the “peaceful and undisturbed
possession” requirement of the spoliation remedy in the context of counter -
spoliation, as asking whether the possession is “sufficiently stable or durable
for the law to take cognizance of it”. The unknown men’s “possession” of the
property has never been stable – it has always been the subject of legal
challenge. It can also not be said to be durable, in the sense of having
endured for any period of time that would render it being established.
45
[72] The protection in PIE gives effect to the right in section 26(3) of the
Constitution. In order to be the bearer of this right, a person must occupy land,
or the building erected on the land for the purposes of being their “home”.
44 At 647 D/E
45 Marlboro Crisis Committee and Others v City of Johannesburg [2012] ZAGPJHC 187 (7
September 2012) at [57] to [62]
26
[73] In Barnett46 the Supreme Court of Appeal gave cogent guidance as to what
constitutes a "home", for purposes of section 26(3) of the Constitution. The
question before the Supreme Court of Appeal in Barnett concerned whether
cottages used for purposes of holidaying could be construed as “homes” for
purposes of PIE. It found that the concept of a “home”, whil st difficult to
define, requires the elements of a degree of regular occupation and
permanence. The principal in Barnett was applied by the Supreme Court of
Appeal in Stay At South Point 47 where the question was whether property let
for purposes of student accommodation constitutes a home. It held that the
features of student accommodation meant that this accommodation was not a
“home” as contemplated in section 26(3) of the Constitution and,
consequently, PIE did not apply where ejectment from such premises was
sought.
[74] In this case, the unknown men cannot claim that the have occupied the
property with any degree of regularity or permanence . Put differently, if the
unknown men would not succeed in demonstrating “possession” for purposes
of any spoliation application they may bring, they cannot establish that the
property is their home for purposes of PIE.
46 Barnett and Others v Minister of Land Affairs and Others 2007 (6) SA 313 (SCA) at [38]
47 Stay At South Point Properties (Pty) Ltd v Mqulwana and Others 2024 (2) SA 640 (SCA) at [9] to
[13]
27
[75] Correctly construed, PIE serves to protect the historic fact of the occupation of
land or a building erected on such land as one's home, rather than the
prospective of intention to occupy such land or buildings as one’s home.48
[76] As a consequence, and given the profound absence of any evidence to the
contrary, the unknown men have no right of occupation capable of being
independently enforced. Their rights, if any, are derived from the appellants'
unlawful conduct. In the circumstances, they are not bona fide occupiers of
the property and in the same way , the property is not their home and they do
not enjoy protection in terms of PIE. They were, consequently, not necessary
parties to the spoliation application.
[77] The notice given on behalf of the Standard Bank of South Africa in terms of
the National Credit Act, 2005 does not constitute irreparable harm to the
appellants as contemplated in section 18(3) of the Act.
[78] In order for this notice to constitute the sort of harm that the Act contemplates,
a causal nexus between the respondents being restored to the possession of
48 It is important to distinguish a spoliation application such as that before us from those in cases
such as City of Cape Town v SA Human Rights Commission and Others 2024 (5) SA 368 (SCA)
where one is dealing with extra-judicial counter-spoliation of “invaded” land at the instance of a
local authority. In such cases, the peculiar facts are of central importance. As Mocumie JA points
out at [16] , “… once a person had brought material onto the land to manifest their intention to
derive some benefit from it, they may have manifested their peaceful and undisturbed possession
of the land, and the original breach of the peace would have been completed. ” (emphasis added)
The point made by the Supreme Court of Appeal is that , in the circumstances of those cases,
counter-spoliation may not be an available remedy to a local authority.
28
the property that they had previously enjoyed and the appellants’ failure to
maintain their (distinct) contractual obligations to their mortgagor is required.
[79] If I were permitted to infer, notwithstanding that the appellants did not make
out such a case, that their failure to have paid the mortgagor is as a result of
the respondents’ occupation of the p roperty and that the respondents are
unlawful occupiers of the p roperty as contemplated in PIE , the appellants are
not without a remedy . It is the availability of remedies that results in any
potential harm to the appellants not being “irreparable” for purposes of the
Act.
[80] In the present instance it cannot be concluded that the appellants would suffer
any irreparable harm if the order i s enforced pending their application for
leave to appeal and any subsequent appeal.
[81] To sum up:
[81.1] The respondents have established irreparable harm to themselves
and the absence of irreparable harm to the appellants. The
circumstances in which the respondents find themselves are truly
exceptional; they arise from constitutionally impermissible conduct
that in itself, is likely an offence. The Rule of Law principle,
considered together with the right in section 34 of the Constitution,
have been egregiously trammelled upon by the appellants.
29
[81.2] The appellants ’ contrivance to defeat the myriad of constitutional
rights enjoyed by the respondents is deplorable. The unknown men
do not occupy the p roperty as bona fide or innocent third parties.
They were part and parcel of, and the instruments of, the appellants ’
unlawful conduct. They do not have a direct and substantial interest
in this matter. They are not the bearers of the right protected by PIE.
Discretion
[82] Returning to the question of discretion, Binns-Ward J, in Justice Alliance ,
49
considered the court ’s discretion under section 18(3) to be that hitherto
exercised by a court at common law. The learned judge refers to the following
passage from South Cape Corporation50 where Corbett JA said:
“The Court to which application for leave to execute is made has a wide general
discretion to grant or refuse leave and, if leave be granted, to determine the conditions
upon which the right to execute shall be exercised This discretion is part and parcel of
the inherent jurisdiction which the Court has to control its own judgments. In exercising
this discretion the Court should, in my view, determine what is just and equitable in all
the circumstances , and, in doing so, would normally have regard, inter alia , to the
following factors:
…
(3) the prospects of success on appeal, including more particularly the question as to
whether the appeal is frivolous or vexatious or has been noted not with the bona
49 At [27]
50 At 545 E
30
fide intention of seeking to reverse the judgment but for some indirect purpose,
e.g., to gain time or harass the other party…”
[83] The authorities reviewed above indicate that there is no just and equitable
enquiry to be undertaken under section 18(3) of the Act and, the power
exercised by a court in terms thereof is now a statutory power distinct from the
inherent jurisdiction to control its own judgments. This power can only be
exercised where the requirements of section 18(3) read with section 18(1) are
satisfied.
[84] As I see the current position, the consideration of prospects of success on
appeal are wrapped up in the “irreparable harm” enquiry under section 18(3).
In circumstances where a court is able to assess the prospects of success on
appeal, and those prospects are poor, the irreparable harm to the party
seeking to have the order made effective is all the more acute. Conversely, it
is difficult for an applicant to contend for irreparable harm where the prospects
of success on appeal are good.
[85] Put differently, the discretion enjoyed by the court is the weight to be
accorded to the prospects of success on appeal seen through the prism of the
Act’s purpose.
51 Seen in this way, prospects of success on appeal ought to
result in an application in terms of section 18(3) being dismissed where they
are strong.
51 Discussed in paragraph [33] above
31
[86] On this construction, there is little room to argue that a court confronted with
an application in terms of section 18(3) of the Act enjoys the discretion it did
under the common law.
[87] In any event , even if this conclusion may prove to be incorrect in time, the
factual and legal issues raised in the spoliation application were also
canvassed in the papers in the section 18(3) application. I have been able to
assess the appellants’ prospects of success on appeal
52 and consider them to
be weak.
CONCLUSION
[88] On a proper application of the principles applicable to application
proceedings, the respondents have proved the elements for relief in terms of
section 18(3) of the Act . The court a quo found, as I have, that the
respondents’ case was effectively unanswered, regard being had to the
absence of evidentiary material placed before court in the appellants'
answering affidavit.
[89] The appellants sought to manipulate the Rule of Law principal by contriving to
place the unknown men in the property to found a defence of impossibility and
then rely on their contrivance to contend for the unknown men being
52 Consider Justice Alliance at [2] and Knoop at [49] and [50]. In the present case, the papers in the
respondents’ spoliation application are before us. The factual and legal issues that feature in the
spoliation application and the section 18(3) applications and before us are identical.
32
necessary parties to the spoliation application on the strength of them being
entitled to protection under PIE.
[90] A conspectus of the appellants’ conduct strongly suggests that the application
for leave to appeal is a dilatory stratagem to force the respondents into
accepting the status quo engineered by the appellants.
[91] It follows that the court a quo did not misdirect itself and that its conclusion
that the requirements of section 18(3) were met, cannot be faulted. The
appeal must thus fail. As the respondents have been successful, costs should
follow.
[92] In the result, the following order is granted:
1. The appeal is dismissed;
2. The appellants are directed to pay the respondent’s costs, with the costs
of counsel to be taxed on scale B.
A W PULLINGER
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
DATE OF HEARING: 04 SEPTEMBER 2025
DATE OF JUDGMENT: 02 OCTOBER 2025
33
APPEARANCES:
COUNSEL FOR THE APPELLANTS: M X MFEKA
ATTORNEY FOR THE APPELLANTS: MADITSI M ATTORNEYS
COUNSEL FOR THE RESPONDENTS: F MISSI
ATTORNEY FOR THE RESPONDENTS: P P MOKOENA ATTORNEYS