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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NUMBER: 2025-206231
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 18 November 2025
SIGNATURE:
In the matter between:
TARIO 535 (PTY) LTD 1ST APPLICANT
REGISTRATION NUMBER: 2014/222548/07
BENJAMIN JEWELLERS CC 2ND APPLICANT
REGISTRATION NUMBER: 2007/237055/23
PIETER GIDEON BENJAMIN REYNECKE 3RD APPLICANT
IDENTITY NUMBER: 8[...]
ANGELIQUE REYNECKE 4TH APPLICANT
IDENTITY NUMBER: 8[...]
-and-
VONANI STANLEY MAKONDO 1ST RESPONDENT
IDENTITY NUMBER: 6[...]
POLOKWANE TRACTORS (PTY) LTD 2ND RESPONDENT
REGISTRATION NUMBER: 2010.476806/07
DURANDT EIENDOMME (PTY) LTD 3RD RESPONDENT
REGISTRATION NUMBER: 2024/476806/07
HENDRIK RUDOLF DURANT 4TH RESPONDENT
IDENTITY NUMBER: 7[...]
Delivered : 18 November 2025
This judgment was handed down electronically by circulation to
the parties' legal representatives by e-mail. The date and time
for hand down of the judgment is deemed to be 18 November
2025 at 10:00 am.
Date heard : 11 November 2025
Coram : Bresler AJ
JUDGMENT
BRESLER AJ:
Introduction:
[1] The Applicant applies on an urgent basis for an order inter alia:
1.1 Interdicting from keeping the premises locked or relocking it before th e
1st Applicant has vacated the premises;
1.2 Interdicting and denying access or restricting access to the premises;
1.3 Interdicting from stopping the Applicants from removing all movable
assets from the premises;
1.4 Directing the 3 rd and 4 th Respondent to provide access to the
Applicants
1.5 Ordering the 1 st and 2 nd Applicant to restore the premises to the
satisfaction of the landlord
[2] The application is opposed by the 1 st and 2 nd Respondent only. A notice to
abide was delivered by the 5th Respondent.
[3] On the Applicant's version, the 3 rd and 4th Respondents are the owners of the
premises. The 1 st and 2 nd Respondents, without the consent of the owner of the
premises, have now pr esumably taken the law into their own hands and decided to
refuse the Applicants access to the premises. The Applicants also submit that the 1st
and 2nd Respondent's right to occupy the premises has since been terminated and
that eviction is probably imminent should they not vacate the premises.
[4] In opposition to the proceedings, the 1 st and 2 nd Applicant denied that the
matter is urgent. If was furthermore pertinently stated that any restriction to access
the premises was done in accordance with the le ase agreement and with the
knowledge of the 3 rd Applicant as he was repeatedly warned that if the rent was not
paid, access will be prohibited. Reference is also made to an acknowledgement of
debt in terms whereof the 3 rd Applicant, representing the 1st Applicant, undertook not
to remove all his equipment from the premises until the rent was paid in full.
Issues that require determination:
[5] This Court is only called upon to determine if the Applicant is entitled to the
relief as set out in the Notice of Motion on an urgent basis.
The Applicable Legal Principles:
Urgency:
[6] The In the often -quoted decision of East Rock Trading 7(Pty) Ltd v Eagle
Valley Granite (Pty) Ltd 1 the court once again enu nciated the test that needs to be
applied in urgent matters. In paragraph [8], the following is stated:
'[8] In my view the delay in instituting proceedings is not, on its own, a ground
for refusing to regard the matter as urgent. A court is obliged to co nsider the
circumstances of the case and the explanation given. The important issue is
whether, despite the delay, the applicant can or cannot be afforded
substantial redress at a hearing in due course. A delay might be an indication
that the matter is not as urgent as the applicant would want the court to
believe. On the other hand a delay may have been caused by the fact that the
Applicant was attempting to settle the matter or collect more facts with regard
thereto.'
[7] This matter, being a spoliation application by nature, is sufficiently urgent to
warrant the hearing on the urgent roll. Moreover, for purposes of urgency the Court
must assume that the Applicants' case has merits. If this is accepted, then the
landlord will in all probability soon evict the 1st and 2nd Respondent, which will have
as a result the removal of the Applicants' goods from the premises. This is a
perceivable and considerable risk. On this basis, substantial redress will accordingly
not be afforded if the matter is to be enrolled on the normal roll in due course.
[8] The parties were consequently requested to address the court on the merits
at the hearing of the matter as well.
Merits:
[9] In The 1st and 2nd Respondent raised several preliminary issues.
[10] The first issue is the authority of the Applicants' deponent. The 1 st and 2 nd
Respondent submitted that the wording of the resolution is inadequate to convey that
the deponent has the required authority to represent the 1 st and 2 nd Applicant in
1 2011 JDR 1832 (GSJ)
these proceedings. The parties were invited to submit supplementary Heads of
Argument on the applicability of Rule 7 in this instance.
[11] Uniform Rule 7(1) states the following:
'(1) Subject to the provisions of subrules (2) and (3) a power of attorney to act
need not be filed, but the authority of anyone acting on behalf of a party may,
within 10 days after it has come to the notice o f a party that such person is so
acting, or with the leave of the court on good cause shown at any time before
judgment, be disputed, whereafter such person may no longer act unless he
satisfied the court that he is authorised so to act, and to enable him to do so
the court may postpone the hearing of the action or application.'
[12] According to Van Loggerenberg2:
'On reconsideration, and in the light of the ca ses referred to in the notes to
rule 7 s v 'General' above, in which it was held that rule 7(1) is now the
appropriate remedy available to a party (in both action and application
proceedings) who wishes to raise the issue of authority, it would rather seem
that the challenge in terms of rule 7(1) should be raised by means of a notice
or letter, or orally, with or without supporting evidence, depending on the
circumstances and the stage of the proceedings, and not in pleadings or
application papers.'
[13] Regardless of the aforesaid, this Court is of the view that any challenge to a
party's authority must be substantiated fully and must be bona fide. Save for their
interpretation of the wording of the said resolution, the 1 st and 2nd Respondent raises
no other factual ground to challenge the authority of the deponent. They, in fact,
concomitantly with their denial of authority, wish to argue that the very same
deponent indeed had authority to bind the 1 st Applicant in the alleged
acknowledgement of debt.
2 DE Van Loggerenberg, Erasmus Superior Court Practice, Volume 2, Juta 2025 on page Rule 7 - 7
[14] Even if one regards the wording of the resolution, this Court is satisfied that
the Company resolved to institute spoliation proceedings. It is, after all, the institution
and prosecution of the proceedings that must be authorized and not the person. This
much appears fully from the resolution and the Founding affidavit.
[15] On this basis this in limine argument is unfounded and stands to be dismissed.
[16] The 1st and 2nd Respondents also submit that there is a dispute of fact and
that action proceedings should have been instituted. As to the elements of spoliation,
being possession and deprivation, there is no factual dispute that cannot be
determined on the papers before court. Spoliation is after all aimed at a swift and
cost-effective remedy to restore the status quo ante.
[17] The 1st and 2nd Respondents furthermore highlighted that the Applicants failed
to ask for condonation for their non -compliance with Rules 6(5) and 6(12). Equally,
this objection holds no water. The Court has the power to regulate its own
proceedings in terms of Section 173 of the Constitution, 1996. Equally, Rule 6(12)
specifically is aimed at regulating the process to ensure that justice is done between
the parties. It is often stated that the Rules are for the court and not the other way
around. The rules ensure that legal proceedings are conducted in an orderly and
efficient manner but should not be utilized to prohibit reasonable access to the courts.
[18] This in limine argument is consequently also rejected.
[19] As to the spoliation, the 1 st and 2nd Respondents submit that the Applicants
possession and occupation was no longer peaceful and undisturbed. The Applicants
were in arrears which rendered their position unlaw ful. Any restriction of access was
done in terms of the lease agreement and the several warnings to the Applicants that
they are going to be restricted in their access if they don't pay.
[20] Spoliation is defined as the wrongful deprivation of another's right of
[20] Spoliation is defined as the wrongful deprivation of another's right of
possession. A person who has been dispossessed of property without due legal
procedure may apply to court to have the property returned to him.
[21] The nature of a mandament van spolie is described in the seminal case of
Nino Bonino v de Lange3, where the Learned Innes CJ at p.22 stated that:
'Spoliation is any illicit deprivation of another of the right of possession which
he has whether in regard to movable or immovable properly or even in regard
to a legal right'.
[22] In the case of Yeko v Qana 4, it was held that an applicant for spoliation
remedy must satisfy the court that -
22.1 he was in possession or had quasi possession of the property; and
22.2 that the respondent deprived him of the possessio n forcibly or
wrongfully against his consent.
[23] In Ngqukumba v Minister of Safety and Security 5 at 118 B this sentiment
was expressed as follows:
'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.'
[24] The first requisite for the grant of a mandament van spolie is proof that an
applicant possessed the spoliated thing. Possession need not be possessi on in the
legal sense. It suffices if the applicant factually held ( detentio) the thing with the
intention (animus) of securing some benefit for himself 6. Both elements, viz detentio
and animus, must be present.7
[25] Two elements are thus essential for the possession which is protected against
spoliation namely detentio (the physical holding of and control of the thing) and
animus (the intention of securing some benefit for oneself).
3 1906 T. S. 120
4 1973 (4) SA 735 (A)
5 2014 (5) SA 112 (CC)
6 Nienaber v Stuckey 1946 AD 1049 1053; Yeko v Oana 1973 (4) SA 735 (A).
7 Meyer v Glendinning 1939 CPD 84. See also Engling v Bosiel 1994 (2) SA 388 (B); Du Randt v Du
Randt 1995 (1) SA 401 (O)
[26] The conventional description of the animus is to hold the thing in question is
for 'own benefit'. The definition of possession most relied upon comes from Wil le's
Principles of South African Law, 8ed, at 262:
'Possession is the physical control by a person of a corporeal thing with the
intention of keeping the control of it for his own benefit.'
[27] In casu , it is common cause between the parties that the Ap plicants had
access to the premises and to the equipment held on the premises. Although
substantial reliance was placed on the alleged Acknowledgement of Debt, this
document only related to the removal of 'all of the equipment' from the premises. It
does n ot state that the 1 st and 2 nd Respondent may unilaterally deprive the
Applicants of access to the premises or to remove some of the equipment -
especially insofar as it is alleged that the equipment does not belong to the 1 st
Applicant.
[28] The second element that must be present is the element of deprivation.
[29] The deprivation must be actual and physical. Interference with possession (for
instance damage to property) or repudiation of contractual obligations relating to
possession does not amount to spoliation. The Applicants must proof that the
deprivation of possession was unlawful. In this context unlawful means without the
Applicants' consent or due legal process.8
[30] More recently the Supreme Court of Appeal in the case of Eskom Holdings
SOC Ltd v Masinda9 again defined spoliation as thus:
'[8] The ma ndament van spolie (spoliation) is a remedy of ancient origin,
based upon the fundamental principle that persons should not be permitted to
take the law into their own hands to seize property in the possession of others
without their consent. Spoliation pr ovides a remedy in such a situation by
8 See in this regard Sillo v Naude 1929 AD 21 and George Municipality v Vena 1989 (2) SA 579 (A)
9 2019 (5) SA 386 (SCA)
requiring the status quo preceding the dispossession to be restored by
returning the property 'as a preliminary to any enquiry or investigation into the
merits of the dispute' as to which of the parties is entitled to possession. Thus
a court hearing a spoliation application does not require proof of a claimant's
existing right to property, as opposed to their possession of it, in order to grant
relief'
[31] Having said the aforesaid, this court is of the view that th e Applicants were in
possession of the premises and the movable goods contained on the premises. This
possession was disturbed by the 1st and 2nd Respondent without the consent of the
Applicant and without recourse to due legal process.
[32] On this basis the application must succeed.
Costs:
[33] Having regard to the nature of the dispute, the level of complexity and the
importance of these proceedings to the parties, costs to counsel on Scale B are
warranted.
Order:
[34] In the result the following order is made:
34.1 The application is heard on an urgent basis as contemplated in
Uniform Rule 6(12);
34.2 The 1st and 2nd Respondent, and/or any one acting on their behalf
or under their direct or indirect instruction is interdicted from havi ng or
keeping the business premises used by the 1 st Applicant, including the
main building, parking area and amenities used by the business known
as Tyre Express Polokwane, which business premises is situated at 3 […]
C[...] Street, Futura Polokwane, locked or from relocking it before the
Applicants have completel y vacated the building on the premises and
moved all of the 1 st and 2 nd Applicant's movable property from the
building;
34.3 The 1st and 2nd Respondents, and/ or anyone acting on their behalf
or under their direct or indirect instruction is interdicting fr om denying
or restricting access, in any way whatsoever, of any of the 4 (four)
Applicants, or anyone acting on their behalf or under their instructions,
to the Tyre Express business premises in any way whatsoever,
including access to the main building or any portion thereof, the parking
area and any amenities used by the business known as Tyre Express
Polokwane;
34.4 That the 1 st and 2nd Respondents, and/or anyone acting on their
behalf or under their direct or indirect instruction, is interdicted from
stopping or trying to stop, or hindering in any way whatsoever, the 1 st,
2nd and 3rd Applicant and/or anyone acting on their behalf or under their
direct or indirect instruction, from removing or causing to remove from
the Tyre Express Polokwane business prem ises, situated at 3 […] C[...]
Street, all movable assets, business stock, signage, branding, tools,
equipment, furniture, computer equipment, shelving, shopfitting and
improvements effected by or on behalf of the business known as Tyre
Express Polokwane to the business premises, including the main
building, parking area and amenities used by the business known as
Tyre Express Polokwane, which business premises is situated at 3 […]
C[...] Street, Futura Park Polokwane;
34.5 That the 3 rd and/or 4th Respondent (Durant Eiendomme (Pty) Ltd
and/or Mr. H Durant), or anyone acting on their behalf and/ or under their
instructions, with or without the assistance of the South African Police
Service ('SAPS'), shall be mandated and authorized, in their respective
capacities as the landlord and landlord's representative, to grant the
Applicants full access to the Tyre Express Polokwane business
premises, so as to inter a lia allow the 1 st, 2 nd and 3 rd Applicants, or
premises, so as to inter a lia allow the 1 st, 2 nd and 3 rd Applicants, or
anyone acting on their behalf, to remove or causing to be removed from
the Tyre Express Polokwane business premises, all assets, business
stock, signage, branding, tools, equipment, furniture, computer
equipment, shelving, shopfitting and im provements effected by or on
behalf of the business known as Tyre Express Polokwane to the
business premises, including the main building, parking area and
amenities used by the business known as Tyre Express Polokwane;
34.6 That the Applicants are author ized, for purposes of gaining
access to the business premises and building to which the Applicants
should have access to for purposes of removing the 1 st and 2 nd
Applicants' movable property, to cut any locks and/or to remove any
physical barriers or hindr ances necessary so as to be able to gain
access to the building and premises, in the event that none of the 1st to
4th Respondents restore the Applicants' access within 6 (six) hours of
the court order being serviced upon the 1 st to 4th Respondents, provided
that the Applicants shall replace all locks cut and/or removed with
similar locks and the keys thereof to be provided to the 3 rd and 4 th
Respondent once the 1st Applicant has vacated the premises;
34.7 The 1st and 2nd Applicants are ordered to restore the Tyre Express
Polokwane business premises to the satisfaction of the landlord (owner)
of the immovable property situated at 3 […] C[...] Street, Futura
Polokwane, to wit the 3rd Respondent, to the condition the premises was
in before th is application was launched but for the removal of all
movable assets, business stock, signage, branding, tools, equipment,
furniture, computer equipment, shelving, shopfitting and improvements
as envisaged in the prayers above, and to specifically repair and make
good all glass which might have to be broken, security measures over
doors, windows and other access points which might have to be
removed, padlocks or other locks which might have to be removed in
order for the Applicants to gain access to the bu siness premises and
building occupied by Tyre Express Polokwane in order to give effect to
prayers 34.2 to 34.6 above;
34.8 This order is to be served by the relevant sheriff or her appointed
deputy sheriff upon the 1 st and 2 nd Respondents at the business
deputy sheriff upon the 1 st and 2 nd Respondents at the business
premises of Polokwane Tractors, situated at 3 […] C[...] Street, Futura,
Polokwane, alternatively at an address and / or in a manner selected,
identified and agreed to by the 1st and 2nd Respondents in writing;
34.9 That this order is to be served by the re levant sheriff or her
appointed deputy sheriff upon the 3rd Respondent at the registered
address of the 3rd Respondent, situated at c/o CJ Accountants, Unit 1[…],
JCJ Corner Building, […] B[...] Street, Polokwane alternatively at an
address and / or in a manner selected, identified and agreed to by the 3 rd
Respondent in writing;
34.10 That this order be served by the relevant sheriff or her appointed
deputy sheriff upon the 4 th Respondent at his residential address,
situated at […] C[...] Street, Bendor Village, Bendor, Polokwane
alternatively at an address and/ or in a manner selected, identified and
agreed to by the 4th Respondent in writing;
34.11 That this order be served by the relevant sheri ff or her appointed
deputy sheriff upon the 5 th Respondent's at its main place of business,
situated at Unit 1 [...], K [...] Business Park, 1 [...] V[...] Avenue, Spartan
Extension 7, Sebenza, Kempton Park, Gauteng Province alternatively at
an address and/ or in a manner selected, identified and agreed to by the
5th Respondent in writing;
34.12 The 1st and 2nd Respondents, jointly and severally, the one paying
the other to be absolved, are ordered to pay the Applicants' costs
including costs to counsel on Scale B.
M BRESLER AJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
FOR THE APPLICANTS : Mr. GH Ehlers
INSTRUCTED BY : Ehlers Law
Polokwane
ge@ehlerslaw.org
info@ehlerslaw.org
FOR THE 1ST AND 2ND : Adv. GG Mashimbye
RESPONDENTS
INSTRUCTED BY : Maboku Mangena Attorneys
Polokwane
admin@mmattorneys.co.za
Adv@gmashimbyelaw.co.za