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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: A48/2025
In the matter between:
CITRUSDAL BELEGGINGS (PTY) LTD Appellant
and
THE MINISTER OF WATER AND SANITATION Respondent
Coram: Saldanha J et Holderness J et Cooke AJ
Heard: 23 July 2025
Delivered: 24 October 2025
ORDER
[1] The appellant’s appeal is upheld.
[2] The respondent shall pay the costs of the appeal, including the costs of
the applications for leave to appeal , and also including the costs of two
counsel on scale C.
[3] The order of the court a quo is set aside and replaced with the following
order:
‘1. The respondent is ordered to immediately restore the applicant’s
possession of and access to the immovable property which is
officially described as the Remainder of the Farm Andriesgrond No.
204, situated in the Cederberg Municipality, Division Clanwillia m,
Province of the Western Cape (also known as Bokwater farm,
Clanwilliam), including the Spoliated Areas as referred to and/or
depicted in the founding affidavit dated 19 October 2022 and/or the
annexures thereto [ with the exception of the offices used by the
respondent’s Department since 2014].
2. In the event of the respondent failing to comply with paragraph 1
above and/or in the event of the Department and their agents
remaining in possession of the said Spoliated Areas or any other part
of the said immovable property, the Sheriff of the Honourable Court is
hereby authorised and ordered, with the support of the South African
Police Services or another company if necessary (who are likewise
authorised and ordered), to assist the applicant to regain possession
of the said Spoliated Areas or any other part of the immovable
property [excluding the said offices], including by means of towing
away any machinery and vehicles not belonging to the applicant or its
agents.
3. The respondent shall pay the costs of the application, including the
costs of two counsel on scale C.’
JUDGMENT
THE COURT
[1] This is an appeal against the dismissal of a spoliation application by
Wille, J sitting as the court of first instance. The appellant c laimed
that it had been in peaceful and undisturbed possession of farmland
when without its consent or without an order of court, the respondent
entered onto the land, uprooted citrus trees with the use of heavy
machinery such as a digger loader and excavator. The respondent for
its part sought to justify its conduct by claiming that it had lawfully
expropriated the appellant’s property (which included both the
farmland and a homestead) several years ago and that the appellant
having been financially compensated for the property , steadfastly
refused to vacate the property despite repeated requests to do so .
The respondent claimed that it was therefore entitled in law to have
counter-spoliated the appellant by tak ing possession of the
expropriated farmland. The central issue in the appeal was whether
the two requirements of the mandament van spolie were met; (i)
whether the appellant enjoyed peaceful and undisturbed de facto
possession of the farmland and whether; (ii) the respondent
unlawfully dispossessed the appellant of its farmland without its
consent or due process of the law. Needless to state, there can be no
lawful counter spoliation without a spoliation.
Context
[2] For the purpose of the appeal, no more than a brief background is
necessary. The p roperty that was the subject of the application lies
downstream from the picturesque Clanwilliam Dam, which is situated
just outside the town of Clanwilliam in the Western Cape. The dam was
constructed as far back as 1935 and is fed by amongst others, the
Olifants River. It is common knowledge that South Africa remains a
water scarce country and faces continued challenges in the delivery of
water and sanitation services c aused by several factors, including
insufficient water infrastructure, maintenance and investment, recurrent
droughts driven inter alia, by climate change, inequalities in access to
water and sanitation, deteriorating water quality and in regard to the
Clanwilliam Dam, the need to increase its yield and secure the safety of
the aging dam wall in the event of flooding . To carry out its mandate
through the Department of Water and Sanitation, the respondent as
provided for, in the National Water Act of 1998 and the Water Services
Act of 1997 has to ensure that the country's limited water resources are
protected, managed , used, developed, conserved and controlled by
regulating and supporting the delivery of effective water supply and
sanitation. That is done in accordance with the requirements of water-
related policies and legislation that are critical to delivering on people's
rights of access to sufficient food, water and to the growing of the
economy and eradicating poverty . In carrying out its mandate, the
respondent embarked on a process to raise the existing wall on the
Clanwilliam Dam and to secure its safety. In May 2020 , cabinet
approved, amongst others, the National Department of Water and
Sanitation Water Resource Prog ram, which amongst others , aimed to
rebuild the economy of which t he Clanwilliam Dam was made part of
the Olifants-Doorn River Water Resources Project. It is apparently one
of the biggest and long -standing infrastructure projects in the country. A
feasibility study was conducted in respect of the dam, which as already
indicated was constructed in 1935 and in 1962 was raised by 6.1
meters. The study found that the sandstone foundation of the dam was
fractured and that there was doubt about the effectiveness of p re-
stressed cables that had been in stalled during the 196 2 r aising and
there had also been concrete deterioration over time. The analysis of
these aspects indicated that the stability of the dam structure was not
adequate under extreme fl oods. It appeared also that almost two
decades ago, dam safety investigations identified the need for remedial
work to the existing dam . Such remedial work would involve major
construction work . T he feasibility study undertaken to consider the
implications of raising the dam wall was completed in October 2007 .
The study found that raising the wa ll was both technically feasible and
economically viable and recommended that the dam wall be raised by
13 meters. The project involved ex tending the dam wall on the
downstream side and therefore r aising it to a higher level. The
objectives of the project were to improve the safety of the dam through
remedial work, increase its yield by about 70 million cubic meters per
annum, that would increase the water supplies to agriculture, domestic,
industrial and mining sectors in the north -western part of the Western
Cape Province. For these purposes, the department was required to
acquire certain properties and/or land and/or portions of properties that
were privately owned by members of the public . To that end, the
department resolved to invoke the provisions of section 64 of the
National Water Act .1 The section empowered the respondent to
1 Expropriation of Property –
(1) The Minister, or a water management institution authorized by the Minister in writing, may expropriate any
property for any purpose contemplated in this Act, if that purpose is a public purpose or is in the public
interest.
(2) Subject to this Act, the Expropriation Act, 1975 (Act No. 63 of 1975), applies to all expropriations in terms of
this Act.
expropriate any properties for any purposes contemplated in the Act i f
that purpose was a public purpose or in the public interest. Amongst the
properties expropriated was that described as a portion of the
remainder of Andr iesgrond No. 204 situated at Clanw illiam Division,
Western Cape Province in Exten t 1799.2484 ha , held under D eed of
Transfer T[...] dated 18 September 1995, in part, the subject property of
the appeal and then owned by the appellant. In fact, it was one of two
properties earmarked for expropriation related to the appellant.
[3] On 20 August 2013, the respondent issued a notice in compliance with
the Promotion of Administrative Justice Act of 2000 (PAJA) in respect of
the expropriation of the property . In the notice, the respondent stated
that the acquisition of the land was urgently required to implement the
raising of the Clanwilliam Dam and associated road realignment. The
effect of the proposed expropriation on owners and occupants and other
right holders would be that the owners would be divested of their
ownership rights which would terminate upon expropriation. Lessees or
other occupants would also be divested o f their rights to occupy which
would terminate upon occupation and that the expropriated land would
be released from any mortgage bond (s). The respondent stated further
that the contemplated date of exp ropriation was to be 12 September
2013 and the date of possession of the property as the same date. The
notice also stated that the owner and all occupants would be allowed to
remain on the property until the date of possession when the
(3) Where the Minister expropriates any property under this Act, any reference to “Minister” in the Expropriation
Act, 1975, must be construed as being a reference to the Minister.
Where any water management institution expropriates property under this Act, any reference to “Minister” and “State” in
the Expropriation Act, 1975, must be regarded as being a reference to that water management institution.
expropriated area had to be vacated. The app ellant was also informed
of its right to object, accept or reject the compensatio n that would be
offered.
[4] On 19 June 2014, the respondent issued out a notice of expropriation in
respect of the appellant’s property in which it recorded that the date of
expropriation was 1 October 2013 and that the respondent had taken
possession of the expropriated property as from the same da te. The
appellant was offered an amount of R13 746 326, including solatium of
R55 000 and interest of R632 409.
[5] In July 2014 and April / August 2017 the compensation was paid out to
the appellant.
[6] On 18 July 2019, the respondent through its Chief Director,
Infrastructure Development issued a notice to the appellant to vacate
the acquired portion of the farm. It s tated that the department required
the use of the property as the raising of the existing dam wall was
currently underway. The appellant was requested to vacate the property
by 1 September 2019. A further letter of similar content was sent on 18
September 2019, with the department requiring the appellant to vacate
the property by 1 November 2019 as it sought to make use of the
property.
[7] On 25 November 2020, the respondent issued a further notice of
expropriation (with an offer of compensation ) in respect of the
appellant’s property similar to the previous notice except with an
increase in the size of the property to be acquired. The date of
expropriation was set as 6 January 2021 and in which the respondent
claimed that the sta te would take possession of the acquired portion of
the property as from 13 January 2021.
[8] On 11 October 2022 the respondent again by letter sought the vacating
of the property by the appellant. However, that which precipitated the
spoliation proceedings in the court a quo, was when the respondent on
Friday, 14 October 2022 at 16h19 in an e-mail addressed to the
appellant by an official in the department of the respondent Mr Rohrs
Manfred, stated that the department intended to move on to the
property depicted on an attached map (part of the area occupied by the
appellant) on Monday, 17 October 2022. Manfred stated further, ‘please
can you remove anything before then that you were not paid out for
already (sic)’. On Saturday, 15 October 2022 at 14 h02, the appellant
responded by e -mail to the respondent in which it claimed that it had
been in legitimate possession of the indicated areas with the consent of
the department since the expropriation of the property. It also stated that
it had an invested interest in the property because of production
expenses on the property with a legitimate expectation that it would be
able to harvest the citrus on the property in return for its investment.
Apart from that, the appellant stated that the notice was only sen t to it
on Friday, 14 October 2022 expecting it to vacate over a weekend. It
claimed that it was entitled to proper and reasonable notification taking
into account the relevant circumstances. The appellant also informed
the respondent that it had been advised by its legal representatives that
the respondent could not take possession of the property without its
permission which it thereby ‘formally refuse(d)’ and that any attempt by
the respondent to take possession without its permission would amount
to self-help and an unlawful spoilation of the property. It threatened that
an urgent application for spoliation would be brought against the
respondent if it moved onto the property. The respondent replied on
Sunday,16 October 2022, to the claims made by the appellant. The
appellant recorded that the response by the respondent dealt with the
alleged merits of the department ’s claim to be in possession of the
property and was not relevant to the spoliation proceedings. On
Monday, 17 October 2022 at 08h22 the legal representatives of the
appellant sent an e -mail to the respondent, copied to the office of the
State Attorney, in which they recorded that the respondent had
threatened to take possession of their client’s property and t hat their
client refused to give the respondent its consent to do so. It further
pointed out that should the respondent proceed to do so without due
process, it would be regarded as self-help and its actions would amount
to an unlawful spoliation. In such an event their instructions were to
bring an urgent spoliation application.
[9] In the f ounding affidavit of the appellant deposed to by Mr. Gerard
Johannes Stone, the director of the appellant, he described that on
Monday, 17 October 2022 at approximately 07h00 he personally
observed heavy machinery, including a digger loader and excavator
moving on to the property where citrus trees were uprooted and
removed.
The urgent application and the relief sought by the appellant
[10] On 19 October 2022 the appellant issued out an urgent a pplication
against the respondent in the court a quo . It sought urgent relief and a
rule nisi in the following terms:
‘2.1. That the Respondent be ordered to immediately restore th e Applicant’s
possession of and access to the immovable property which is officially described as
the Remainder of the Farm Andriesgrond No. 20, situated in the Cederberg
Municipality, Division Clan william, Province o f the Western Cape (also known as
Bokwater farm, Clanwilliam), includin g the Spoliated Areas as referred to and/or
depicted in the founding affidavi t dated 19 October 2022 and/or the annexures
thereto [ with the exception o f the office s used by the Respondent’s Department
since 2014];
2.2. That in the event of the Respondent failing to comply with paragraph 2.1 hereof
above and /or in the even t o f his Department and the ir agents remaining in
possession of the s aid S poliated Areas or any other part of the said immo vable
property, the Sher iff of the Honorable Court is hereby authori sed and ordered to,
with the support of th e South African Police Services or another company if
necessary (who are likewise so authori sed and ordered ), assist the Applicant to
regain possession of the said Spoliated Areas or any other part of the immovable
property [excluding the said offices], including by means of towing away any
machinery and vehicles not belonging to the Applicant or its agents;
2.3. That the R espondent, including his Department and agents, is prohibited from
interfering with the Applicant’s and/or its lawful agents ’ farming activities or its/their
possession of the aforesaid S poliated Areas o r any other part of the aforesaid
immovable property and/or from removing therefrom any plants, irrigation system or
movable assets of the Applicant or its lawful agents;
2.4. That the Respondent be ordered to pay the Applicant’s cost s of this
application, including any cost s associated with regaining possession of the
aforesaid Spoliated Areas or any other part of the aforesaid immovable property
(which latter costs shall include the actual cost s of the Sheriff as well as any third
party used by the Sheriff).’
The remainder of the relief related to the return date, together with a
prayer for further and alternative relief and an order of costs against the
respondent.
[11] On 21 October 2022 an order was taken by agreement between the
parties that the matter was to be postponed to the urgent roll together
with a time -table for the filing of further papers by both sides on the
following basis:
‘1. …
2. That pending the hearing as referred to in paragraph 1 hereof above, the
Respondent and his Department (including their employees) shall cease operations
and removals on the areas where the Applicant alleges spoliation had taken place
[i.e. the “Spoliated Areas” as referred to and/or depicted in the founding affidavit
herein dated 19 October 2022 and/or the annexures thereto], or any other portion of
the Remainder of the Farm Andriesgrond No. 204, situated in the Cederberg
Municipality, Division Clanwilliam, Province of the Western Ca pe (also known as
Bokwater farm, Clanwilliam ), and further that the Respondent shall not commit any
other act of spoliation not yet complained of by the Applicant.’ …
[12] In the founding affidavit, the appellant emphasized that it was seeking
no more than spol iatory relief against the respondent and sought to
confine its claims based on the requirements for such relief . It claimed
that part of the remaining relief sought was no more than ancillary to
any spoliatory relief granted under paragr aph 2.1 of the Notice of
Motion. However, with reference to its emails to the respondent of the
15 October 2022 and the respondent`s reply of the 16 October 2022
wherein various issues were raised by the parties about the appellant’s
occupation of the property and the respondent ’s respon ses, the
appellant elected in the concluding paragraphs of the founding affidavit
under the heading “Full Disclosure” to deal briefly with what it referred to
as the various negotiations with the respondent’s officials with regard to
its continued occupation of the property, and the alleged ostensible
agreements it had entered into with the respondent and SANRAL in
respect of the property. The appellant nonetheless maintained that none
of these issues were relevant for the purposes of the spo liatory relief it
sought against the respondent.
[13] The respondent i n its answering affidavit dealt extensively with the
background to the need for the expropriation of the appellant’s property,
its legislative mandate, the expropriation of the property, the payment of
compensation to the appellant and what it referred to as the various
attempts by the appellant to secure agreements for its continued
occupation of the property . The respondent also sought that the court
develop the common law on the mandament van spolie in the interests
of justice to allow the respondent and the court to deal with the merits of
the respondent `s ownership and possession of the expropriated
property. The respondent claimed the circumstances of the matter were
unique and given the exigencies of the responsibilities of the
respondent to increase the height of the dam wall and secure its
stability and safety and so prevent the risk of harm to people living
downstream of the dam and damage to property in the event of a
flooding disaster . In that regard, it refer red to a Fifth Dam Safety
Evaluation commissioned by the Department in April 2020 and procured
in terms of the various enabling legislation and government notices .2
The respondent likewise referred to Emergency Plans compiled by it in
November 2019 . The respondent attached the elaborate Safety
Evaluation and the Emergency Plan s to it s answering affidavit. The
respondent also raised as a defense to what it regarded as the unlawful
spoliation by the appellant of the expropriated property by refusing to
vacate notwithstanding the various notices and letters sent by the
respondent to do so , that it was entitled in law , to have cou nter-
spoliated the appellant when moving on to the farmland to restore what
it regarded as its possession of the property.
[14] The court a quo did not deal at all in its judgment with the
development of the common law and it appears not to have been
pursued by the respondent. Neither did it attempt to do so on appeal.
The appellant, for its part, had in its replying papers vehemently resisted
the invitation to the court to dev elop the common law . It nonetheless
responded extensively to the merits of what was raised as both the
ownership and alleged possession of the property by the respondent. It
raised, amongst others, the lack of any necessity by the respondent to
have expr opriated the property when it could merely have obtained a
servitude over the land , that it intended to challenge the compensation
2 The Fifth Dam Safety Regulations promulgated in the Government Gazette and by Government Notice read
together with the National Water Act.
paid to it , that it had an agreement with the respondent that it was
entitled to remain on the property until the dam wall was inundated with
water, but more importantly it steadfastly resisted that the re was any
basis both in fact and law, for the respondent to have counter-spoliated
the appellant`s occupation and possession of the property.
[15] We are mindful that an appeal does not lie against the reasoning of a
court a quo save for the order made (see in this regard , Cape
Empowerment Trust Ltd v Fisher Hoffmann Sithole 2013 (5) SA 183
(SCA) para 39). I t would appear, however, that the court a quo was
wholly persuaded by the defense raised by the respondent of having
resorted to a counter-spoliation, which the court a quo regarded as what
the matter was really all about and dealt with the merits of the
respondent`s ownership and possession of the expropriated property.
The law
[16] It is trite, that an applicant in seeking to invoke the remedy of the
possessory interdict of the mandament van spolie , is only required to
demonstrate two things ; (i) that he/she was in peaceful and
undisturbed de facto possession of the relevant property at the time of
spoliation, and (ii) that a respondent had without recourse to law or
consent dispossessed her or him and in so doing took the law into its
own hands. In essence the remedy seeks to protect the rule of law , a
founding principle and value of our Constitution.3 The authority for the
requirements for the mandament are legion. Van Blerk, JA in the oft
3 Supremacy of the constitution and the rule of law.
recited matter of Yeko v Qana 1973 (4) 735 at 739D-F succinctly stated
that; ‘The very essence of the remedy against spoliation is that the
possession enjoyed by the party who asks for the spoliation order must
be established. As has so often been said by our Courts, the
possession which must be proved is not possession in the juridical
sense; it may be enough if the holding by the applicant was with the
intention of securing so me benefit for himself . In order to obtain a
spoliation order, the onus is on the applicant to prove th e r equired
possession and that he was unlawfully deprived of such possession .
...whether this occupation was acquired secretly, as appellant alleged,
or even fraudulently is not the enquiry. For, as Voet, 41.2.16, says the
injustice of the possession of the person despoiled is irrelevant as he is
entitled to a spoliation order even if he is a thief or a r obber. The
fundamental principle of the remedy is that no one is allowed to take the
law into his own hands. All that the spoliatus has to prove, is possession
of a kind which warrants the protection accorded by the remedy, and
that, he was unlawfully ousted’ (our emphasis). The nature of the relief
that the court is required to restore the status quo ante, was set out as
long ago in Nino Bonino v De Lange 1906 T. S. at page 122.
Application of the law to the facts
[17] It is indisputable that the appellant remained in physical and
continued occupation of the property after the expropriation and
continued its farming operations on part of the pr operty. Moreover, the
dwelling on the property was occupied by the director and his family .
That, despite the various letters of demand and notices requiring the
appellant to vacate the property, it steadfastly refused to do so .
Needless to state, that was simply indisputable otherwise there would
have been no need for the respondent to have continuously demanded
that the appellant vacate the property. Moreover, the respondent itself at
various instances in its answering affidavit conceded that even after the
expropriation of th e property, the appellant remained in ‘continued
possession’ of the property. That puts paid to the respondent’s
contention and the finding by the court a quo that the appellant was not
in de facto possession of the property. Moreover, that undermines any
other claims raised by the respondent t hat it was entitled to what it
regarded as legitimately counter spoliating the appellant of the property.
Simply stated , given that the very remedy of counter -spoliation is
defensive in nature, there can be no lawful counter-spoliation without a
spoliation. Moreover, the respondent contended that given the repeated
refusals by the appellant, literally over several years in refusing to
vacate the expropriated property amounted to a continued spoliation of
the property and it was therefore entitled to counter -spoliate the
appellant. That in our view was wholly without any merit. Van Blerk, J.A.
in Yeko v Qana (above, at C -D) in dealing with the defense of counter
spoliation stated ‘Similarly there may be circumstances justifying self -
help if it concerns contra spoliation which is instanter resorted to, thus
forming part of the res gestae in regard to the despoiler’s appropriation
of possession, as would be the immediate dispossession of a thief of
stolen goods when he was caught flagrante delicto (Cf. Meyer v. Le
Grange and Another , 1952 (2) S.A. 55 (N). T he respondent ’s
possession was , however, not of such a kind. ’ In respect of the
requirement of instanter both the respondent and the court a quo
sought to rely on the decision of South African Human Rights
Commission and Others v City of Cape Town and Others 2022 (6) SA
508 (WCC) (since upheld on appeal) 4 where at para 44 the following is
stated:
‘As stated above, counter spoliation is not a stand -alone remedy but is used as a
defense to counter an act of spoliation and for this reason has to be used at the
stage where it can be considered as being part of the act of spoliation. This stage is
known as instanter. This would mean that it was a mere co ntinuation of the existing
breach, it sought to remedy , was not a new breach and consequently, is condoned
by the law. If the first victim d ispossessed proceeds to take the law into his /her own
hands after the original breach is completed and possession is perfected by the
despoiler, it would amount to a separate act of spoliation which would not be
condoned by the law. What would amount to instanter is dependent upon the facts
of each case and is inherently flexible but the act of counter spoliation must take
place immediately in response to the act of spoliation.’ (our emphasis)
[18] The respondent sought to suggest that given the peculiar facts of this
matter, that its conduct amounted to an instanter counter spoliation. The
respondent and so did the court a quo, failed to appreciate the proviso
that the counter-spoliation must take place ‘immediately in response to
the act of spo liation’. On the facts of this matter , the conduct of the
respondent could not have amounted to instanter and, with respect, it is
inconceivable how s uch remedy could have been resorted to where
after a period of not only months but years in which the appellant
continued to occupy and de facto possess the expropriated property.
4 2024 (5) SA 368 (SCA).
[19] Moreover, there was much debate at the hearing of the appeal in
respect of the manner in which the respondent sought to enter into the
merits of its ownership and possession of the expropriated property. A
position affirmed by the court a quo. In fact, in heads of argument the
respondent contended that unlike the dwelling unit on the expropriated
property, the remainder thereof was “unoccupied.” Needless to say,
such a hopelessly incorrect assertion was made blinded to the fact that
there w ere citrus trees and grazing sheep on the property which the
appellant was farming at the time of the spol iation. Moreover, in heads
of argument the respondent contended that in the light of the threat and
risk of flooding and damage to properties below the dam and possible
injury and disaster to people thereon, the court should exercise its
discretion in dismissing the appeal . Counsel for both the appellant and
respondent correctly accepted though that the court enjoyed no such
discretion. Moreover, the respondent’s own dilatory conduct over many
years undermined the urgency which the respondent sought to act upon
on that Monday morning in October 2022 . T here was no evidence of
any immediate threat of flooding and that anybody or property was in
danger that would not have enabled the respondent to have obtained
an appropriate court order for the eviction of the appellant from the
subject property. The reliance on the exigencies of the respondent’s
conduct in the interest of life and property was no more than
opportunistic. If anything , it demonstrated on the respondent’s own
version, that if any such exigencies existed there was a woeful and
unexplained dereliction on the respondent’s part in failing to have
obtained an appropriate court order to have properly and lawfully
secured the expropriated property for use in the extension and remedial
work on the dam wall.
The Expropriation Act
[20] For the purposes of our findings in the appeal , it is, in our view, not
necessary for any detailed examination of the interpretation to be
accorded to various provisions of the Exp ropriation Act on which the
respondent sought to rely. Suffice to say, the de facto possession of the
property by the appellant had not as a matter of law ‘been euthanized’
by the provisions of the Expropriation Act nor to hold otherwise ‘ would
violate the expropriation legislation’. There is in our view simply no basis
for such a contention in the Expropriation Act.
[21] In the respondent’s heads of argument, it was submitted that in terms
of the Expropriation Act the respondent was placed in possession of the
expropriated area retrospectively t o 1 October 2013. Therefore, so the
argument ran, when the heavy machinery moved onto this area on 17
October 2022, ownership and possession had vested in the State by
operation of law. It was also submitted that in so far as the appellant
remained in poss ession of the area, it did so for and on behalf of the
respondent. In oral argument it was contended that the respondent had
not resorted to self -help as he invoked the provisions of the
Expropriation Act. Counsel sought to draw an analogy with legislation
which allows for the seizure of stolen property. There are several
difficulties with these arguments, both factual and legal.
[22] Section 8(3) of the Expropriation Act provides that: ‘The State shall
take possession of any property expropriated on the date stated in
terms of section 7(2)(b) or such other date as may be agreed upon
between the owner concerned and the Minister’. In terms of section
7(2)(b), the notice of expropriation must ‘state the date
of expropriation or, as the case may be, the date as from which the
property will be used, as well as the period during which it will be used,
and also state the date upon which the State will take possession of the
property’.
[23] In this matter the notice of expropriation was dated 19 June 2014 and
stated: ‘The date of expropriation was 1 October 2013 and the State
took possession of the expropriated property as from 1 October 2013 ’
(the bold is in the notice). The Expropriation Act contemplates notice
being given of a prospective date when possession will be taken. It
does not contemplate a retrospective taking of possession.
Furthermore, notwithstanding the statement in the notice, the State did
not take factual possession of the property from 1 October 2013, nor
from any other time before 17 October 2022. In fact, in 2013 the
expropriated property was leased back to the appellant for an indefinite
period.
[24] Nor did the appellant possess the property on behalf of the
respondent. The appellant used the property for its own purposes. On
the date of the spoliation the property was being used by the appellant
to graze sheep and grow citrus trees for its own profit. Plainly the
respondent did not benefit from these farming operations, and there
was no agency relationship between the respondent and the appellant.
[25] There is a further, more fundamental problem. Even if the notice of
expropriation had stated that the State would take possession on 17
October 2022, or if this had been the date agreed by the parties, the
State would still not be entitled to take possession of the property
without either the consent of the appellant, or the sanction of a court. In
Sithole v Native Resettlement Board 1959 (4) SA (WLD) 115 at 118H ,
the court held that if a statute confers a right to enter upon certain
property, it is implicit that if the proposed action is not acquiesced in by
the person in possession, then the process of law must be sought in
order that the action may be carried out. It is not implied that any official
or bo dy or anybody else can take the law into their own hands (See
also A Gildenhuys Onteieningsreg 2 ed (2001) at 122) . The court in
Sithole observed that Parliament may alter the ordinary principle of law
that a person entitled to property is not entitled to enter upon it and take
possession by force. But the right to do so must be conferred in clear
language (at 117C -D, confirmed in George Municipality v Vena and
Another 1989 (2) SA 263 (A) at 271F -G). Although this judgment was
delivered in the p re-constitutional era, we consider that it accords
entirely with constitutional norms, specifically the rule of law which is
one of the founding principles of our democracy (South African Human
Rights Commission above para 25), as well as sections 25(1) and 34 of
the Constitution (see in this regard African Billboard Advertising (Pty)
Ltd v North and South Central Local Councils, Durban 2004 (3) SA 223
(N) at 228A-D).
[26] In this instance, we do not consider that the Extradition Act may be
construed to authorise the State to take possession by force. Granted,
the Extradition Act provides that the State ‘shall’ take possession,
whereas Sithole concerns a statute which used the word ‘may’.
Nonetheless, in our view the language employed in the Expropriatio n
Act does not suffice to show, clearly, that the State may take possession
by force (for legislation which uses the word ‘shall’, see Sterling and
Mockford NO v Bensusan 1930 WLD 236) . As pointed out in African
Billboard, were this the intention of Parliament, it would be a simple
matter to say that no court order would be required (at 228E-F).
[27] As to legislation concerning the seizure of stolen property, we agree
with the finding in Sithole that different considerations of interpretation
apply in connection with such legislation (at 118H-119A).
[28] Therefore, the effect of section 8(3) of the Expropriation Act is that the
State shall take possession of the expropriated property on the
applicable date only in the sense that it is entitled to compel the
possessor to hand over possession on this date. This section does not
authorise the State to take the property by force (compare Sterling
above at 241) . If not given, the State ‘shall take possession’ by
instituting legal process to obtain possession.
[29] Thus, the respondent was not placed in possession of the
expropriated area retrospectively to 1 October 2013. Nor did the
appellant possess the property f or and on behalf of the respondent.
When the heavy machinery rolled onto the property on 17 October
2022, factual possession had not vested in the State by operation of
law, and no law or court order authorised the respondent to take
possession against the wishes of the appellant.
The question as to the merits of the conflicting rights of the parties
[30] The respondent contended that, by seeking relief additional to the
spoliation order in the proceedings a quo, the appellant enjoined the
court to consider the merits of the parties’ competing rights, and of the
appellant’s claim.
[31] Reliance in this regard was placed on the judgment of Selikowitz J in
City of Cape Town v Rudolph and Others 2004 (5) SA 39 (C) at 86E -G
where it was held that as the City of Cape Town, the applicant, had
introduced a wide range of issues and sought various orders, including
declaratory relief to define its rights, in the alternative to relief in terms of
the mandament, it had opened the door to the court considering the
further relief on the merits.
[32] In the counter-application in Rudolph, the respondents, the occupiers
of the property, sought inter alia an order declaring that the housing
programme of the City of Cape Town failed to comply with their
constitutional and stat utory obligations, by not making short -term
provision for people in crisis living in Valhalla Park, and interdicting the
City of Cape Town, from evicting the applicants from the property until
such time as suitable alternative accommodation or land was ava ilable
to them. The applicant argued that the respondents' counterapplication
was not competent, because the main application was for spoliatory
relief.
[33] It is well-established that the court in determining such relief ordinarily
avoids engaging with complex issues regarding the merits or legal rights
of the parties. The sole question to be determined in such matters is
whether the applicant was unlawfully dispossessed.
[34] However, the court in Rudolph found that the applicant did not limit
itself t o spoliation relief alone. The application also includes a
restraining interdict to prevent respondents from occupying the
municipality’s property, a declaratory order confirming the applicant's
right to possess the park as the owner thereof, an interim ev iction order
under section 5 of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act (the PIE Act), and a request to have parts of the
PIE Act declared unconstitutional.
[35] The court found that by claiming such relief, even in the alte rnative,
the applicant expanded the scope of the application to include
declaratory and eviction relief, and in so doing opened the door to legal
arguments about the merits of the case, including the lawfulness of the
respondents' occupation.
[36] In casu the respondent contended that as was found by the court a
quo in the application for leave to appeal, the appellant did not merely
seek spoliatory relief, and in so doing opened the door to the court
considering the merits of the parties’ respective rights to possess the
property. The appellant, in addition to the spoliatory relief, sought an
order interdicting the respondent from interfering with its farming
activities and / or removing any plants, irrigation system or movable
assets. It also sought an order t hat the costs associated with regaining
possession of the spoliated areas or any part of the immovable property
be paid by the respondent.
[37] It is apposite to note that the court a quo in the present matter only
sought to justify that it entered into the me rits of the matter on the basis
of the prohibitory interdict, as was the case in Rudolph, in the
application for leave to appeal, where the court found that as the
appellant sought an ‘additional interdict’ against the respondent and its
agents, the appell ant ‘put the merits of its alleged peaceful and
undisturbed possession “on the table” by seeking this additional
interdictory relief’.
[38] The appellant criticised the court a quo for delving into the merits and
determining that the respondent lawfully moved onto parts of the
expropriated land (having revoked the appellant’s permission to
occupy). The court a quo concluded that the respondent therefore did
not dispossess the appellant of property in its possession.
[39] The court a quo held that possession of the property ‘as a matter of
law had passed to the Respondent’ by virtue of expropriation. The
appellants contend, correctly in our view, that the court erred in this
regard as it introduced the merits into a spoliation application and it was
common cause that the respondent had, for many years following the
expropriation, allowed the appellant to remain in possession.
[40] The respondent in its answering affidavit in the proceedings a quo
conceded that the appellant had remained in ‘co ntinued possession’ of
the property after the expropriation and had refused to vacate same.
[41] The court held that the appellant’s continued occupation of the
property constituted a spoliation, and that the respondent had thus
lawfully and instanter counter-spoliated the appellant. The respondent
argued that this once again encroaches upon the merits of their existing
dispute.
[42] In Street Pole Ads Durban (Pty) Ltd and Another v Ethekwini
Municipality 2008 (5) SA 290 (SCA) ( Street Pole Ads ) the Supreme
Court of Appeal referred to the principle that an offending respondent in
a spoliation application is generally not allowed to contest the spoliated
applicant's title to the property:
‘That is because good title is irrelevant: the claim to spoliatory reli ef arises solely
from an unprocedural deprivation of possession. There is a qualification,
however, if the applicant goes further and claims a substantive right to
possession, whether based on title of ownership or on contract. In that case 'the
respondent may answer such additional claim of right and may demonstrate, if he
can, that applicant does not have the right to possession which it claims'. This is
because such an applicant 'in effect forces an investigation of the issues relevant
to the further rel ief he claims. Once he does this, the respondent's defence in
regard thereto has to be considered.' (at para 15 and the authorities there cited).
[43] This case is , however, distinguishable from Street Pole Ads . The
applicants in Street Pole Ads sought classic ally spoliatory relief in
demanding the restoration of the posters the municipality had
despoiled; however, it further claimed an interdict, not directed only to
the despoiled property, but in wide terms embracing all the various
street poles in the Ethekw ini metropolitan area covered by the disputed
agreements. As pointed out by Nicholson J, that claim spoiled for a fight
about its title to those poles, and it was this fight in which the
municipality was entitled to and did engage.
[44] The relief sought by th e appellants in this matter, for an order
prohibiting the respondent from interfering with the appellant’s farming
activities or its possession of the spoliated areas or any other part of the
aforesaid immovable property and / or removing any plants, irrig ation
system or movable assets of the applicant, was ancillary to the
spoliation relief and did not require the court a quo to engage with the
merits of the appellant’s right to possession.
[45] The appellant did not claim a substantive right to possession, based
on title of ownership or on contract. The court a quo was accordingly not
required to consider the merits as it did. Put differently, the court need
not have decided whether the responde nt had a stronger claim to
possession, by virtue of the expropriation, than the appellant. In Ivanov
v Northwest Gambling Board and Others 2012 (6) SA 67 (SCA) , the
SCA noted that the ‘principle is simple: possession must first be
restored to the person spoliated, irrespective of the parties’ actual rights
to possession’.
[46] Even if the alternative claims sought by the appellant justified the
respondent in adducing evidence in relation to the lawfulness of the
appellant’s possession, such evidence would only have been relevant to
the interdictory relief. It would not have been relevant to the spoliatory
relief. For this reason also , the court a quo should not have had regard
to the merits of the appellant’s possession in dec iding whether to grant
the spoliatory relief.
[47] In as much as the respondent invited the court to enter into the merits
of its ownership and alleged possession o f the expropriated property,
that even if the court did so , it would not, in our view, lead to any
justification of the respondent`s c onduct of the 18 October 2022, in
spoliating t he property on which the appellant had been farming . Any
debate on the merits of the matter and a finding would and could not
have justified the conduct of the respondent in having taken the law into
its own hands.
Relief
[48] For the reasons set out above we conclude that the appellant was
entitled to the relief described in paragraphs 2.1 and 2.2 of the notice of
motion, and the court a quo therefore ought to have granted this relief.
To this extent the appeal falls to be upheld.
[49] At the hearing counsel for the appellant correctly accepted that the
appellant had not established a claim for an interdict, as requested in
paragraph 2.3 of the notice of motion. In addition, he submitted that this
relief was meaningless and went too far. Counsel also agreed that the
appellant was not entitled to an order for the costs ‘associated with
regaining possession of the aforesaid Spoliated Areas or any other part
of the aforesaid immovable property’, as sought in paragraph 2.4 of the
notice of motion.
[50] Both parties employed two counsel , and both sought costs of both
counsel to be taxed on scale C. In our view , the nature of the matter
warranted two counsel, and w e are satisfied that the appellant is
entitled to costs of two counsel on scale C for the proceedings a quo, as
well as the proceedings on appeal.
_____________________________
V SALDANHA
JUDGE OF THE HIGH COURT
____________________________
M HOLDERNESS
JUDGE OF THE HIGH COURT
_____________________________
D COOKE
ACTING JUDGE OF THE HIGH COURT
Appearances
For appellant: R van Riet SC and C Burke
Instructed by: Tiaan de Jager Attorneys
For respondent: MC Erasmus SC and HA Mpshe
Instructed by: State Attorney