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[2025] ZAFSHC 332
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Kwamanzi Investments (Pty) Ltd and Others v Jacob Jacobus Haasbroek and Others (5061/2025) [2025] ZAFSHC 332 (24 October 2025)
FLYNOTES:
CIVIL
LAW – Spoliation –
Public
road servitude
–
Bollards installed at edge of roadway – Peaceful and
undisturbed quasi-possession of entire servitude
– Erection
of bollards constituted a unilateral act of obstruction –
Deprived applicants and public of full access
– Conduct
undermined legal status of servitude and attempted to impose
private control over a public right –
Alternative access
could not negate spoliation – Remedy protects status quo
ante and not convenience or practicality
– Restoration of
full and undisturbed use of public road servitude granted.
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Not Reportable
Case
no:
5061/2025
In the matter between
KWAMANZI
INVESTMENTS (PTY) LTD
FIRST
APPLICANT
PLOT
2 MAXWELL FARM CC
SECOND
APPLICANT
AITKEN,
MICHAEL ANTHONY
THIRD
APPLICANT
and
HAASBROEK,
JACOB JACOBUS
FIRST
RESPONDENT
HAASBROEK,
JACOB JACOBUS N O
[In
his capacity as trustee of the Ceaser Trust
IT
1968/2000]
SECOND
RESPONDENT
ENGLISH,
JASON JOSEPH
THIRD
RESPONDENT
HENLEO
1072 (PTY) LTD
FOURTH
RESPONDENT
BRODWILL
CONSTRUCTION (PTY) LTD
FIFTH
RESPONDENT
Neutral
citation:
Kwamanzi
Investments (Pty) Ltd & Others v Jacob Jacobus Haasbroek &
Others
(5061/2025)
[2025] ZAFSHC 332
(
24 October 2025
)
Coram:
BOONZAAIER AJ
Heard:
9 October 2025
Delivered:
This judgment was handed down electronically by
circulation to the parties’ representatives by email and
released to SAFLII.
The date and time for hand-down is deemed to be
at 10h00 on 24 October 2025.
Summary:
Mandament van spolie
can
protect the ‘
qausi
-possession’
of a public servitude, but the applicant must prove they were
unlawfully deprived of their undisturbed possession.
The remedy
focuses on restoring the
status quo
by reinstating the person's possession before the
alleged spoliation, irrespective of who holds the underlying legal
right to the
servitude. This, demonstrating the remedy's robust
nature in protecting
quasi
-possessory
rights.
Plascon-Evans
rule
not applicable where there is no factual dispute.
ORDER
1
The first to fourth respondents are ordered to forthwith
restore to
the applicants and the general public the full and undisturbed use of
the public road servitude 25 meters wide, created
by Notarial Deed of
Right of Way No K809/1976S and shown on LG Diagram No 392/76 (the
Public Road Servitude), removing all barriers,
earth berms/heaps,
tree stumps, trees, bollards, brick columns, any other columns or
structure barricades, building extensions
(including any and all
extensions of entrances and entrance related paraphemalia erected
within the Public Road Servitude) and
any other obstructions placed
on or across the Public Road Servitude or in any way reducing,
impeding, frustrating or diverting
full and unrestricted access on
and across the Public Servitude Road.
2
In the event of the first to fourth respondents failing
or refusing
to comply with paragraph 1 above within 12 (twelve) hours of service
of this order, the Sheriff of this Court is authorised
and directed
to remove such obstructions forthwith, with the assistance of the
South African Police Service if required, and to
take any reasonable
steps necessary for such removal.
3
The first to fourth respondents are interdicted and restrained
from,
in any manner impeding, obstructing, narrowing, diverting, policing
or otherwise interfering, temporarily or permanently
and directly,
with the free and unimpeded use of the Public Road Servitude by the
applicants or any member of the general public,
including use by
heavy vehicles for the lawful transport of goods and materials.
4
The first to fourth respondents to pay the
applicants
costs on the scale as between attorney and client, jointly and
severally, the one paying the other to be absolved, including the
costs consequent to the employment of two counsel on scale C.
JUDGMENT
Boonzaaier AJ
Introduction
[1]
The applicants approached this Court by way of urgency and relying on
the
mandament van spolie
,
claiming restoration of the full and undisturbed use of the right of
way pertaining to a registered Public Roads Servitude. This
servitude
is registered as a condition in the deeds of the parties’
respective properties.
The parties (save
for the fifth respondent) are all owners of portions of a farm
described as Farm Maxwell No 433, District Parys,
Free State Province
(the Farm Maxwell).
The applicants basically apply for a final
interdict that the
status
quo
in respect of
the servitude road be restored to enable them to utilise it.
[2]
This Court, in the exercise of its discretion, permitted the filing
of the replying
affidavit and further affidavits to ensure that the
issues raised were fully ventilated.
[3]
The purpose of this application is to restore to the applicants and
the general public,
the full and
undisturbed use of the Public Road Servitude 25 meters wide, created
by Notarial Deed of Right of Way No K809/1976S
and shown on LG
Diagram No 392/76
(the Public Road
Servitude)
. The Public Road Servitude is
registered as a condition in the titles deed of the parties’
respective properties.
[4]
As a result of the abovementioned servitude the restrictive condition
has the same
status and legal effect as a praedial servitude, which
can be enforced by any owner of the properties in the Farm Maxwell
against
any other owner who may be acting in breach of the
condition.
[1]
[5]
The fifth respondent was joined to these proceedings by virtue of its
interest in
the matter. No relief is sought against it, as it has not
opposed the application.
Undisputed facts
[6]
The uncontested evidence in the present matter is that the
parties are only able to access their respective
properties, by way of Public Servitude, created by Notarial Deed of
Right of way
No K809/1976S and registered on 30 November 1976 and
shown on LG diagram No 392/76. The Public Road Servitude, registered
in favour
of the general public, is 25 meters wide and runs parallel
to the boundary line adjacent to the properties of the applicants and
the first to fourth respondents. Part of the servitude road was paved
during August 2024 by first to fourth respondents. The servitude
road
comprises of a paved part and an unpaved part. The servitude road is
25 meters wide and the paved road is approximately
3 meters
wide.
[7]
On 16 September 2025, the respondents commenced constructing bollards
along the paved
section of the road, specifically at the boundary
between the paved and unpaved areas. Despite requests for
undertakings to cease
construction, the respondents continued with
the works. The respondents’ opposition to the relief sought is
based solely
on the contention that although the bollards have been
installed at the edge of the roadway, both the public and the
applicants
can still make use of the road. The applicants have used
the dirt part of the road and the paved road for various purposes
without
objection and without contributing to the construction or
maintenance thereof. The erection of these bollards has prompted this
application.
Applicants’
version
[8]
The central issue in the applicant’s case is the allegation
that the respondents
have obstructed the roadway by installing
bollards along the edge of the paved surface, within the roadway
itself. The respondents
claim, that the public and the applicants can
still use the road, does not constitute a valid defense to this
alleged obstruction.
The applicants deny that the bollards erected by
the respondents on the side of the paved road serve to reinforce and
stabilise
the paved road.
This claim was expressly rejected by
the engineer appointed by the applicants.
Counsel
for the applicants dismisses the applicability of the
Plascon-Evans
rule in the present case without providing any
argument on the issue.
Respondents’
version
[9]
The first to fourth respondents oppose the
application on various grounds, including, inter alia, the denial of
dispossession and
spoliation. The respondents submit that the
applicants' spoliation application concerns a
quasi
-possession
arising from the servitude right of way. The respondents further
submit that the applicants’
quasi
–
possession
prior to the alleged spoliation was limited solely to the actual use
of the servitutal road. The section of the servitutal
road utilised
by the applicants before the contested act—namely, the erection
of bollards alongside the paved road—remains
in use and is
still available to the applicants. The respondents argued that, in
spoliation proceedings, the applicants are not
entitled to enforce
the full right of way but are limited to the extent that their actual
quasi
-possession
was disturbed. The respondents argued further that the bollards which
they erected on the side of the paved road reinforce
and stabilise
the paved road.
[10]
The respondents contend that the applicants are pursuing relief and a
final order by way of motion
proceedings.
As
such, the applicants are bound by the evidentiary and procedural
rules applicable to motion proceedings.
Consequently,
the facts relevant to
quasi
-possession
and the alleged deprivation thereof must be assessed in terms of the
Plascon-Evans
rule.
[2]
In
support of this position the respondents rely on the judgment of
Van
Rhyn & Others NNO v Fleurbaix Farm (Pty) Ltd
,
[3]
which
addresses the issue of spoliation and the principle is succinctly
stated as follows
:
‘
The
Plascon-Evans
rule
falls to be applied to resolve any factual dispute on the papers
pertaining to the issue of dispossession.’
Accordingly, the
respondents submit that the facts as stated by the respondents,
together with those facts admitted by the applicants
must be
considered in determining whether the applicants are entitled to the
relief sought.
Issues for
determination
[11]
The main issues to consider are: firstly, whether the
Plascon-Evans
rule applies or must be applied in
mandament van spolie
cases;
secondly, whether access or alternative access constitutes a valid
defense to spoliation where a public servitude is registered;
and
thirdly, if the applicants’
quasi
–possession prior
to the alleged spoliation was limited solely to the actual use of the
servitutal road.
Legal principles
pertaining to spoliation
[12]
According to the law, the
mandament
van spolie
is
a remedy which purpose is to restore possession
before
anything else
(
ante
omnia
)
to someone who has been unlawfully dispossessed of property—movable
or immovable—or
quasi
possession
of a certain incorporeal right. It is a possessory remedy, not asking
the court first to determine the underlying right,
but rather to
restore the
status
quo ante
so
that disputes over the right can be litigated properly.
[4]
It is
trite that in a spoliation application, an applicant must comply with
two requirements namely: firstly, peaceful and undisturbed
possession
(or
quasi
-possession
immediately prior to the alleged spoliation; and secondly, that they
were unlawfully deprived of that possession (without
their consent,
by wrongful act).
[5]
[13]
Wrongful or unlawful deprivation refers to dispossession without the
applicant’s consent
or without due legal process.
[6]
The
applicant must show that the use was open, peaceful, undisturbed
(i.e. without having to ask permission, or being subject to
control/interference) up to the moment of the alleged spoliation.
Once possession (even
quasi
-possession)
is established, the act of deprivation (e.g. locking gates, blocking
road, erecting obstruction) must be wrongful (i.e.
without legal
justification, without consent).
Quasi
possession
refers to possession of some incorporeal rights (rights that are not
physical things) by virtue of using or exercising
them in relation to
landed property. Examples are servitudes (rights of way, access,
etc.), rights of use, etc.
[14]
In
Eskom
Holdings SOC Ltd v Masinda
,
[7]
the Supreme Court of Appeal (SCA) considered whether a person whose
electricity supply was disconnected could use the
mandament
van spolie
to
force reconnection (i.e.
quasi
possession
of the supply). The SCA decided (among other things), that the
mandament
van spolie
historically
protected physical possession, but over time the courts have extended
it to certain incorporeal rights (e.g. rights
of use, servitude).
[15]
In
Oosthuizen
v Terblanche
,
[8]
the court affirmed that
the right to use a road or route is included in the concept of
(
quasi )
possession, and that
locking gates across such a route can constitute spoliation. The
question was whether the applicant had
de facto
possession of the route,
and whether there was wrongful deprivation. Daffue J thus
concluded:
‘
I dealt with the
requirements in order to succeed with the mandament van spolie quite
recently in
Kymdell
v Kymdell
as
follows:
“
The requirements
to be proven by an applicant relying on the mandament van spolie are
well-known.
All
that the despoiled person needs to prove is that—
(a)
he/she was in peaceful and undisturbed possession
of the property; and
(b)
he/she was deprived of possession unlawfully, ie
forcibly or wrongfully against his consent.”
The
remedy was quite recently discussed in
Ngqukumba
v Minister of Safety and Security and Others.
The
Constitutional court held that
:
“
The
essence of the
mandament
van spolie
is
the
restoration
before
all else of unlawfully deprived possession to
the
possessor
.
It finds expression in the maxim
spoliatus
ante omnia restituendus est
(the
despoiled
person must be restored to possession
before
all else)
.
The
spoliation order is meant to prevent the taking of possession
otherwise than in accordance with the law.
Its
underlying philosophy is that no one should resort to self-help to
obtain or regain possession. The main purpose of the
mandament
van spolie
is
to preserve public order by restraining persons from taking the law
into their own hands and by inducing them to follow due process.
(Emphasis
added).”
A co-possessor such as a
spouse or partner, or even a person entitled to partial possession
only, is entitled to rely on the
mandament van spolie
in the
event of an infringement of his or her rights.
The
mandament van
spolie
is an extraordinary and robust remedy. Few defences
may be raised and once an applicant has discharged the onus to prove
the
aforesaid requisites and none of the recognized defences have
been raised with success, the court is bound to grant relief,
notwithstanding
the merits of the dispute between the parties.
It is also a speedy remedy and restoration should take place
immediately or “dadelik.”
I shall later show that
this principle does not entail that each and every spoliation
application shall automatically be deemed
urgent, or even extremely
urgent, requiring a flouting of the Uniform Rules of Court.’
[16]
It is important to keep in mind that the rights of the parties and
the lawfulness or not of the
applicant’s possession are not
considered by the court during a spoliation application.
[9]
Therefore
the applicant does not even have to show that he was entitled to be
in possession, but that he was in
de facto
possession
at the time of being despoiled as explained in
Malan
an Another v Green Valley Farm Portion 7 Holt Hill 434 CC and
Others
.
[10]
In
the case of
De
Beer v Zimbali Estate Management Association (Pty) Ltd and
Another
,
[11]
it was
held as follows:
‘
A
summary of the above cases would seem to me to indicate that the
mandament
is
there to protect possession, not access.’
[17]
In the case of
Viljoen
and
Another v Bekker
(
Viljoen
)
[12]
the court found that:
‘
The use of an
alternative route has, in my opinion, no relevance to the exercise of
peaceful and undisturbed possession of the servitude
road.
Furthermore, it is not a defence to the unlawful deprivation of the
thing possessed.’
[18]
In
Viljoen
above,
[13]
the court also found the following:
‘
[12]
It is the respondent’s submission that this application for
spoliation be dismissed as the applicants
had an alternative route
that they could use or were using and that the applicants never used
the servitude road. In my view, this
is a collateral issue which
cannot be raised as a defence against spoliation. It has been
recognised that the use of a servitude
can be protected by
the
mandament
without
proof of the existence or otherwise of the servitude.
[13]
As mentioned above, the applicants need only show two grounds,
peaceful and undisturbed possession
of the thing or in this case, the
road and that they have been unlawfully deprived of that possession.
The respondent is generally
not allowed to contest the spoliated
applicant’s title to the property because good title is
irrelevant. The claim to relief
under the mandament arises solely
from deprivation of possession without following legal procedure.’
Discussion of the law
[19]
In a case involving a public road servitude or right of way and
access, if the user has been
using the road or servitude openly,
peacefully, without disturbance, and that use amounts to
quasi
possession, then an unlawful obstruction or
interruption could give rise to a
mandament van spolie
.
[20]
Given the above, if someone was using a route as a right of way
(servitude) in an undisturbed
manner, without asking permission, that
use can amount to
quasi
possession of that route. The
relevant test is whether the use was peaceful, undisturbed, and the
route was exercised as right
of use, not a mere license or a
contract.
[21]
In the more recent case of
Salcarb
KZN (Pty) Ltd v Ikwezi Mining (Pty) Ltd
,
[14]
the court clarified that
in spoliation proceedings, exclusive possession is
not
required. The applicant
can have
quasi
possession,
such as the exercise of a right (eg to enter upon property), and
wrongful deprivation of those right amounts to spoliation.
The nature
of the right matters: rights to use of property, incidents
(
gebruiksregte
)
etc. But the court will not immediately adjudicate the merits
(ownership, contract, etc.) in spoliation proceedings; rather, it
will restore
status
quo ante
if
spoliation proved.
[22]
In the case of
Jigger
Properties CC v Maynard NO and Others
,
[15]
a servitude (right of
way/ access) and whether the
quasi
possession
of that servitude is protected by
mandament
van spolie
were
addressed. The court emphasised that mere contractual rights are not
enough; the right must be of a nature that is incidental
to
possession/control (a
gebruiksreg
)
such as rights of way, gates, etc.
[23]
A claim by the respondents that the applicants have ‘access’
by some other way or
route does not necessarily make the deprivation
lawful. Courts have held that having an alternative route is not
always a defence
to spoliation if the applicant had previously used
the servitude/route in a manner amounting to possession, and then was
deprived
of that use.
[24]
In essence the applicants were using a servitude road (whether paved
or not) and were in peaceful,
undisturbed possession or
quasi
-possession of access via that specific route. The
respondents then erected bollards, restricting that specific use —
even
if an alternative dirt road is available. The respondents argue:
‘[y]ou can still access the area via a dirt road, so you're
not
really dispossessed’.
[25]
In regard to
unlawful deprivation,
erecting
bollards to restrict access likely counts, if applicant did not
consent to that restriction and no lawful basis exists.
The
respondents’ claim that the applicants ‘have access’
through some other way is not per se lawful deprivation
avoidance —
what matters is if the applicants’ access via the paved,
previously usable road was taken away. If that
route was used, then
blocking it is a deprivation. If the ‘access’ the
respondents refer to is inferior, burdensome,
or not the route
previously used, that might be relevant in assessing harm.
[26]
Therefore the reason why I regard the
respondents' version as
legally irrelevant: In
spoliation
, it is the
act of
dispossession
itself that is unlawful, not whether the
dispossessed person still has another way to exercise their rights.
In
Viljoen
,
a servitude road was registered in favour of the applicants, and the
respondent erected barriers and blocked it. The court granted
a
spoliation order even though respondent argued an alternative route
existed.
[27]
If I have regard to whether I need to apply the
Plascon-Evans
rule
,
the
only factual dispute is about whether the applicants can still get
access via another road, that dispute is not material for purposes
of
the spoliation remedy. Therefore,
Plascon-Evans
need not be
applied, because the dispute doesn't go to a material factual issue
under the
mandament
. This is a key legal distinction in the
mandament van spolie
.
[28]
The respondents’ argument that the
applicants ‘has alternative access’ does not justify
putting up bollards or
blocking an existing access route that was
being used. That’s a classic form of unlawful self-help, which
is exactly what
the
mandament van spolie
is designed to prevent. The remedy is about
restoring the
status quo ante
—
i.e., giving back what was taken —
and letting any legal dispute about the route be resolved
afterwards
.
Findings
[29]
A servitude like
in casu
is for the general public an
easement. This is a public right vs a private right of individuals: A
public servitude is a right
of way granted for public use—individuals
cannot obstruct or limit access to it. Even if only part of it is in
use (eg 3m
paved), the entire 25m is protected, and barriers are
typically not allowed. Interference with a servitude by erecting
bollards,
barriers or structures that limit or hinder access amount
to unlawful interference. The fact that ‘some access’
remains
(like a gravel road) does not justify partial obstruction.
The servitude must allow full and proper enjoyment of the right, not
merely ‘some’ access. The respondent has unilaterally
reduced the public’s right by paving only 3m and erecting
bollards, the respondents are unilaterally redefining the scope of a
public servitude, which they are not entitled to do.
Conclusion
[30]
The respondent intentionally and deliberately decided to erect the
bollards. It is a fundamental
principle that no man is allowed to
take the law into his own hands; no-one is permitted to dispossess
another forcibly or wrongfully
and without his consent for the
possession of property whether movable or immovable. If he does so,
the court will summarily restore
the
status
quo ante
and
will do that as a preliminary to any inquiry or investigation into
the merits of the dispute.
[16]
[31]
Having considered the submissions made, I am of the view that the
Plascon-Evans
rule
does not find application due to the fact that
in
casu
no dispute of fact exists. I am
also of the view that the respondents cannot lawfully restrict access
to a public servitude by limiting
it to a 3m paved road and blocking
the rest.
I am satisfied that the
applicants have on a balance of probabilities
proven the
requirements for spoliation and are thus entitled to the relief
sought in the application
[32]
Consequently, the following order is made:
1
The first to fourth respondents are ordered to forthwith restore to
the
applicants and the general public the full and undisturbed use of
the public road servitude 25 meters wide, created by Notarial
Deed of
Right of Way No K809/1976S and shown on LG Diagram No 392/76 (The
Public Road Servitude), removing all barriers, earth
berms/heaps,
tree stumps, trees, bollards, brick columns, any other columns or
structure barricades, building extensions (including
any and all
extensions of entrances and entrance related paraphemalia erected
within the Public Road Servitude) and any other obstructions
placed
on or across the Public Road Servitude or in any way reducing,
impeding, frustrating or diverting full and unrestricted
access on
and across the Public Servitude Road.
2
In the event of the first to fourth respondents failing or refusing
to comply
with paragraph 1 above within 12 (twelve) hours of service
of this order, the Sheriff of this Court is authorised and directed
to remove such obstructions forthwith, with the assistance of the
South African Police Service if required, and to take any reasonable
steps necessary for such removal.
3
The first to fourth respondents are interdicted and restrained from,
in
any manner impeding, obstructing, narrowing, diverting, policing
or otherwise interfering, temporarily or permanently and directly,
with the free and unimpeded use of the Public Road Servitude by the
applicants or any member of the general public, including use
by
heavy vehicles for the lawful transport of goods and materials.
4
The first to fourth respondents to pay the applicants costs on the
scale
as between attorney and client, jointly and severally, the one
paying the other to be absolved, including the costs consequent to
the employment of two counsel on scale C.
S BOONZAAIER
ACTING JUDGE OF THE
HIGH COURT
Appearances
For
the appellants:
J
G Wasserman SC with C L Robertson
Instructed
by:
Cliffe Decker
Hofmeyer
,
Johannesburg
c/o
Webbers
Attorneys Inc,
Bloemfontein
For
the 1
st
to 4
th
respondents:
S Reinders
Instructed
by:
Henk Scheepers
Inc
, Van Der
Byl
c/o
Rosendorff
Reitz and Barry
Bloemfontein.
[1]
Camps
Bay Ratepayers and Residence Association and Others v Minister of
Planning, Culture and Administration, Western Cape and
Others
2001
(4) SA 294
(C) at 324I-325A.
[2]
Plascon
– Evans Paint Ltd v van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-I.
[3]
Van
Rhyn & Others NNO v Fleurbaix Farm (Pty) Ltd
[2013] ZAWCHC 106
;
2013
(5) SA 521
(WCC)
[2013]
4 All SA 236
(WCC)
para
23.
[4]
Abrahams N.O and
Others v Geldenhuys N.O and Others (Reasons)
[2025] ZAWCHC 78
;
[2025]
2 All SA 388
(WCC) paras 4-5.
[5]
LAWSA
volume
11 para 342.,
Oosthuizen
v Terblanche
(
Oosthuizen
)
[2022] ZAFSHC 81
para 34.
[6]
Harms
Amler’s
Precedents of Pleadings
7 ed
at 358.
[7]
Eskom Holdings SOC
Limited v Masinda
[2019]
ZASCA 98
;
2019 (5) SA 386
(SCA) para 14.
[8]
Oosthuizen
in 5 para 34.
[9]
Rosenbuch
v Rosenbuch and Another
1975
(1) SA 181
at 183A-B and
Painter
v Strauss
1951
(3) SA 307
(O) at 131H.
[10]
Malan
an Another v Green Valley Farm Portion 7 Holt Hill 434 CC and Others
2007
5 SA 114
(E) para 25.
[11]
De
Beer v Zimbali Estate Management Association (Pty) Ltd and Another
2007(3)
SA 254 (N) para 54. See also
Vital
Sales Cape Town (Pty) Ltd v Vital Engineering (Pty) Ltd and Others
[2021] ZAWCHC 67
;
2021 (6) SA 309
(WCC); [2021] HIPR 168 (WCC) para
23.
[12]
Viljoen
and Another v Bekker
[2015]
ZAGPPHC 161 para 14.
[13]
Ibid paras 12-13.
[14]
Salcarb KZN (Pty) Ltd
v Ikwezi Mining (Pty) Ltd
[2024]
ZAGPJHC 434 para 31.
[15]
Jigger Properties CC
v Maynard NO and Others
(2017)
ZAKZPHC 9
;
2017
(4) SA 569
(KZP) para 17.
[16]
Nino
Bonino
v De Lange
1906
TS 120
at
122.