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
EASTERN CAPE DIVISION, MTHATHA
Case No: 398/2025
In the matter between:
LINDELWA MANGALA Applicant
and
THE MUNICIPAL MANAGER FOR OR TAMBO DISTRICT
MUNICIPALITY First Respondent
O.R. TAMBO DISTRICT MUNICIPALITY Second Respondent
___________________________________________________________________
REASONS
___________________________________________________________________
APPELS AJ:
Introduction
[1] The issue the court was called upon to decide in this matter is whether the
applicant was entitled to a spoliation order when the second respondent (“the
Municipality”) disconnected the supply of water to the property where she resides.
[2] An interim order was issued in her favour on 28 January 2025 in which the
Municipality was ordered to reconnect the supply of water pending the final
determination of the dispute b etween the parties. On 30 October 2025 an order was
issued discharging the interim order and dismissing the application for final relief with
costs, with reasons to be provided on 13 November 2025. The reasons for the order
are set out below.
The Facts
[3] The applicant resides at the property known as 3 […] L[...] Street,
Ngangelizwe Township, Mthatha (“the property”). The property is owned by Ms
Ayanda Godlo (“Ms Godlo”). It is apparent from the deed of transfer of the property
that Ms Godlo became the registere d owner of the property pursuant to an
agreement of sale between herself and the executrix of the estate of the late Sarah
Sitiwe Xangayi (“the executrix”). The applicant is the granddaughter of the late Sarah
Sitiwe Xangayi. In her replying affidavit she made bald assertions, that the
agreement of sale between the Ms Godlo and the executrix was unlawful. It is not
necessary for the determination of this dispute to deal with these assertions.
[4] The applicant alleges that the Municipality unlawfully disconnect ed the water
supply to the property. She contends that since the Municipality was not in
possession of a court order authorising the disconnection, the disconnection was
unlawful and ought to be restored. In this regard, she alleges that she is the lawful
occupier of the property and accordingly, the Municipality had no right to disconnect
the water supply without due process. The factual or legal basis for the assertion that
she is the lawful occupier of the property is not clear from the papers. It is com mon
cause that she is not the registered owner of the property. She has also made it
clear in her papers that she does not occupy the property in terms of a lease
agreement with the owner or any other person who has a lawful right to let the
property.
agreement with the owner or any other person who has a lawful right to let the
property.
[5] Therefore, other than making the bald assertion that she has a clear right to
occupy the property she has not established the legal basis for the alleged lawful
possession of the property or the legal basis for the alleged right of supply of water
to the prop erty. She merely alleges that she was in peaceful and undisturbed
possession of the water supply when she was allegedly unlawfully deprived by the
Municipality and therefore relied on the mandament van spolie for the relief sought.
[6] The Municipality denies that the applicant has any right to be supplied with
water to the property or that the disconnection of the water supply was unlawful. In
support of this denial, the Municipality alleges that the right to be supplied with water
to the property at all material times belonged to Ms Godlo in terms of a contractual
arrangement with the Municipality which is governed by paragraphs 7.5 and 7.11 of
the Municipality’s Credit Control and Debt Collection Policy (“the policy”). In this
regard, in terms of the policy Ms Godlo as owner opened an account with the
Municipality for the provision of municipal services including the supply of water to
the property.
[7] The supply of water to the property is metered in accordance with
consumption and monthly accounts are rendered. Ms Godlo as owner and customer
was in terms of the policy obliged to pay for the services on the due date as reflected
in the monthly account. Customers such as Ms Godlo are entitled in terms of
paragraph 7.11 of the policy to app ly for the termination of the services. On 21
January 2025, Ms Godlo submitted a written request to the municipality for the
temporary termination of services at the property. Subsequently, on 22 January
2025, the Municipality disconnected the water to the property based on Ms Godlo’s
request. Accordingly, the Municipality contends that the disconnection of the water
supply was lawful and that the application ought to be dismissed.
[8] In the matter of Blendrite (Pty) Ltd and Another v Moonisami and Another 1,
the Supreme Court of Appeal (“the SCA”) described the remedy of the mandament
van spolie with reference ( inter alia) to a decision by Innes CJ in Nino Bonino v De
Lange2 as follows:
“‘Spoliation is any illicit deprivation of another of the right of posses sion which he
“‘Spoliation is any illicit deprivation of another of the right of posses sion which he
has, whether in regard to movable or immovable property or even in regard to a legal
right.'
1 Blendrite (Pty) Ltd and Another v Moonisami and Another 2021 (5) SA 61 (SCA) at para 5.
2 Nino Bonino v De Lange 1906 TS 120 at p122
“The remedy is a possessory suit based on the maxim spoliatus ante omnia
restituendus est. In simple terms, this means that possession must be restored to the
dispossessed person before enquiring into anything else.”
[9] The mandament van spolie is thus designed to be a speedy remedy which
serves to prevent recourse to self -help.3 The dispossessed person must prove that
he or she had possession of a right which warrants the protection accorded by the
remedy, and that he was unlawfully deprived of that right.
[10] In relation to the supply of water it has been held that it is only prot ected in
limited circumstances by the mandament van spolie , and only where it has been
received as an incidence of possession of the property. 4 What this entails has been
made clear by the SCA in the matter of Eskom Holdings SOC Ltd v Masinda 5,
where th e court considered the types of rights that can be protected by
the mandament. In this regard it was held that in the context of a disconnection of
the supply of water, spoliation should be refused where the right to receive it is
purely personal in nature.6
[11] The mere fact that there has been a prior supply of water is in itself
insufficient to establish a right constituting an incident of possession of the property
to which it is delivered. The SCA held in Eskom Holdings SOC Ltd v Masinda that:
“In order to justify a spoliation order the right must be of such a nature that it vests in
the person in possession of the property as an incident of their possession. Rights
bestowed by servitude, registration or statute are obvious examples of this. On the
other hand, rights that flow from a contractual nexus between the parties are
insufficient as they are purely personal, and a spoliation order, in effect, would
amount to an order of specific performance in proceedings in which a respondent is
precluded from dis proving the merits of the applicant's claim for possession.
precluded from dis proving the merits of the applicant's claim for possession.
Consequently, insofar as previous cases may be construed as holding that such a
3 Blendrite (Pty) Ltd and Another v Moonisami and Another, supra at para 6.
4 Blendrite (Pty) Ltd and Another v Moonisami and Another, supra at para 16
5 Eskom Holdings SOC Ltd v Masinda 2019 (5) SA 386 (SCA)
6 Eskom Holdings SOC Ltd v Masinda, supra at para 20
supply is in itself an incident of the possession of property to which it is delivered,
they must be regarded as having been wrongly decided.”7
[12] In other words, the mere fact that the applicant resides on the property to
which there has been a supply of water prior to the disconnection, is not sufficient to
establish a right that warrants protection in terms of the mandament van spolie. Even
a right to water supply which is governed by a contract would not be sufficient to
make out a case for spoliation as that would only constitute a personal right which
would amount to an order for specific performance. Examples of right to water supply
which would be protected under spoliation as rights flowing from the incidence of
possession of the property are rights bestowed by registered servitudes and
statutory water rights.
[13] The applicant’s alleged right to supply of water appear s to be based solely
on the fact that she resides on the property to which there was a prior supply of
water. That is not sufficient to show that she had a right which vests in her by virtue
of the possession of the property. She has therefore failed to s how that she has a
right to water which warrants protection under the mandament van spolie.
[14] Accordingly, the interim order granted on 28 January 2025 was discharged
and the application was dismissed with costs.
________________________
G. APPELS
ACTING JUDGE OF THE HIGH COURT
Heard: 30 October 2025
Reasons made available on 13 November 2025.
7 Eskom Holdings SOC Ltd v Masinda, supra at para 22
APPEARANCES :
For the Applicant: Mr Mqokoza
Instructed by: ODWA BENTSWANA ATTORNEYS
7 Prestwich Street
MTHATHA
For Respondents: Mr. Zilwa
Instructed by: N Z MTSHABE INCORPORATED
62 Cumberland Street
MTHATHA