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
(NORTHERN CAPE DIVISION, KIMBERLEY)
Not Reportable
Case No: 155/2025
In the matter between:
NORTHERN CAPE HIGH SCHOOL APPLICANT
and
HANSEN ELITE WELLNESS (PTY) LTD FIRST RESPONDENT
HELGARD HANSEN SECOND RESPONDENT
Neutral citation: Northern Cape High School v Hansen Elite Wellness (Pty) Ltd and
Another (155/2025) (28 November 2025).
Heard:15 August 2025.
Delivered: 28 November 2025.
Summary: Law of Property – Mandament van spolie – quasi possession - alleged
unlawful dispossession of the gymnasium – spoliation order issued for the immediate
restoration of possession.
_____________________________________________________________________
ORDER
______________________________________________________________________
1. The first and second respondents are to forthwith restore to the applicant its
undisturbed possession and use of the gymnasium facility situated on Erf 1[...], a
portion of Erf 1[...], Kimberley, between 15h00 and 17h00 during the weekdays.
2. The first and second respondents are to pay costs of this application on party
and party scale; such costs are to include the fees of counsel on scale B in terms
of Rule 67A read with Rule 69 of the Uniform Rules of this Court.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
Phatshoane DJP
Introduction
[1] This is a spoliation application which was launched on an urgent basis on 23
January 2025. For reasons not apparent from the record , it was struck off the roll for
lack of urgency. The applicant, the Northern Cape High School (the school), a public
school established in terms of the South African Schools Act 84 of 1996, seeks an order
that the first respondent, Hansen Elite Wellness (Pty) Ltd (Hansen Elite) previously
styled Elite Nutrition (Pty) Ltd, alternatively, the second respondent, Mr Helgard Hansen
(Mr Hansen), alternatively, Hansen Elite and Mr Hansen (collectively referred to as the
respondents) jointly restore to it its undisturbed possession of the gymnasium facility
situated at Erf 1[...], a portion of Erf 1[...], Kimberley, Northern Cape Province (the
property). Further ancillary relief with regard to costs is also sought.
3
The application to strike out
[2] I first dispose of the application to strike out some specified paragraphs in the
founding affidavit. The respondents did not bring a formal application on this score .
Instead, they averred in their answering affidavit, without more, that 29 paragraphs in
the founding affidavit were irrelevant, scandalous and vexatious and that at least seven
paragraphs of that affidavit contained inadmissible hearsay evidence. These
paragraphs, it was submitted, ought to be stuck out. The respondents barely proffered
oral and written arguments in support of the point taken. It is nonetheless important to
determine whether the specified paragraphs are offensive and ought to be expunged.
[3] Two requirements must be satisfied before an application to strike out can
succeed in terms of rule 6(15) of the Uniform Rules of Court. First, the matter sought to
be struck out must be scandalous, vexatious or irrelevant; and secondly, the court must
be satisfied that if such a matter is not struck out , the party seeking such relief would be
prejudiced.1 The relevance of the impugned allegations in striking out applications has
to be tested with reference to the merits of the case. A consideration of the probative
force of the statements does not arise.2
[4] The impugned paragraphs: 13, 19 -20, 22, 27 -29, 31, 35 -37, 42 and 67 set out
the historical context, the current ownership and use of the property (sports ground)
which houses the gymnasium , and how this latter facility was established. They also
outline some historical disputes over the ownership of the sports ground and how these
were resolved. I am of the view that the specified paragraphs cannot be categori sed as
irrelevant. A trust , established by the school , the Adnitor Trust (the trust) , largely
features on some of the events and or transactions in relation to the ownership of the
property. To the extent that paragraphs 23, 25 -26, and 68-69 detail how the trust was
property. To the extent that paragraphs 23, 25 -26, and 68-69 detail how the trust was
established, its purpose and who its beneficiaries are, they also cannot be classified as
irrelevant.
1 Beinash v Wixley 1997 (3) SA 721 (SCA) at 733A-B; see also Helen Suzman Foundation v President of
the Republic of South Africa 2015 (2) SA 1 (CC) para 27.
2 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) para 25.
4
[5] Paragraph 20 is to the effect that The Kimberley Pirates Club Ltd (the Pirates
Club), a non-profit company, was the registered owner of the property. This is to be read
in conjunction with para graphs 13 and 14. Para graph 13 addresses the historical
ownership of the property which I have already found to be admissible. Paragraph 14 on
the other hand, makes reference to a WinDeed property search drawn by Ms C Roules
and is attached to the founding affidavit as proof of ownership of the property. This
cannot be hearsay evidence. Ms Roules deposed to a confirmatory affidavit confirming
the role attributed to her in paragraph 14 of the founding affidavit . The averments
contained in paragraphs 21-22, 26-27 and 46-47, which also pertain to the historical use
and disputes over the ownership of the property , were confirmed by the school’s
headmaster, Mr O Du Plooy, as true. It bears emphasis that the principal held that
position at the time of such ownership, possession and use. He is best placed to verify
the historical context from the school’s records. Surely, insofar as the averments are
separately supported by him, these too cannot constitute hearsay evidence.
[6] The alleged offending paragraphs 38 -41 and 43 -49 concern mainly some loan
advanced by an entity styled Seasons Find to the trust to purchase a school bus; certain
alleged simulated transactions concluded between the school and the trust following the
advance; and other matters incidental thereto. In my view, the allegations contained in
these paragraphs have no bearing on the issues that are to be considered in this case.
However, the respondents did not mount an argument that they stood to suffer prejudice
should the specified paragraphs not be struck out. Neither could I find any prejudice. It
is well known that Judges disabuse their minds of any vexatious, scandalous or
irrelevant matters contained in the affidavits.3 The upshot of this is that the application to
strike out must fail and it is so ordered.
strike out must fail and it is so ordered.
The school’s version
[7] Prior to 2008 the Pirates Club was the registered owner of the property which
included a lawned sports field approximately the size of two rugby pitches, a squash
3 Beinash v Wixley Supra fn 1 at 733J-734B.
5
court, a small function hall, a pavilion and a clubhouse, all of which served as amenities
for the community and for sporting activities.
[8] Mr Jaco Nel, a member of the School Governing Body (SGB), deposed to the
founding affidavit. He stated that since 2000 the school had , for almost a decade , an
arrangement with the Pirates Club in terms of which it was allowed to utilise, inter alia,
the lawned sports field, the pavilion and other facilities situated on the property from
time to time. In due course the school commenced negotiations with the Pirates Club
regarding the possible purchase of the property. To this end, the school established the
trust, with Mr Andries Johannes Snyman , its former principal, as a founder , and some
former members of the SGB and educators as the trustees . The school , including its
learners, students or its trainees are the beneficiaries of the trust. The trust’s main
objectives are, inter alia:
‘To create a special fund in the Republic of South Africa to receive donations to be utilised
exclusively for educational and training purpose s, including , but not limited to , acquiring,
maintenance, improvement and development of educational facilities including buildings, land
and vehicles, and the appointment and provision of lecturers or other persons for the benefit of
the beneficiaries.
The collection and receiving of monies, funds, contributions an d donations by any legal means
with the help and assistance of and under the control of the trustees.
. . .’
According to Mr Nel, in general, the purpose of the trust was to safeguard the school’s
interest in the property and to be used when properties are purchased in future for the
school. Accordingly, the trust was established essentially with the primary objective of
serving as the commercial arm of the school.
[9] During 2008 a dispute arose between the Pirates Club and Sol Plaatje
Municipality (the municipality) in respect of the ownership of the property. This prompted
Municipality (the municipality) in respect of the ownership of the property. This prompted
the municipality to lodge an application in this Court in which it sought an order that the
ownership of the property be bestowed upon it. The school, the SGB and the trust were,
6
amongst others, cited as the respondents due to the school’ s continued use and
enjoyment of the facilities . That dispute was amicably resolved , resulting in a deed of
settlement which was noted and attached to this Court’s order of 31 October 2008.
Because of that deed, presently, the municipality is the registered owner of the property.
The deed further stipulated, subject to certain conditions being met, that the property
would be subdivided and certain portions thereof would be transferred to the Pirates
Club and to the trust , respectively. In particular, paragraph 10.1 thereof provided that
the trust would be entitled to remain in undisturbed possession of a certain portion of
the property from the date on which the deed of settlement was signed. Mr Nel stated
that in terms of this deed the trust had exclusive use of the portion of the property on
which the sports field and pavilion are located.
[10] According to Mr Nel in 2012 the trust acquired a double -decker bus for school -
related activities and to be leased to third parties to generate revenue when not in use
by the school. An open-sided metal-framed and roofed shed was constructed with funds
donated by parents of two pupils and used as a parking for the bus. Th is bus storage
was situated on the property which the school had exclusive use. The school’s
commercial ambition to generate income through the use of the bus did not materialise
due to a combination of practical and regulatory hurdles. The bus was eventually sold in
November 2017. There is presently a dispute, pending in this Court under a different
case number, between the school and the trust related to this transaction . In the
nutshell, that application concerns the eviction of the school from the property by the
trust. Mr Nel says that the transaction has increasingly strained relations between the
school and the trustees of the trust.
[11] Mr Nel intimated that the building in which the gymnasium is housed, did not form
[11] Mr Nel intimated that the building in which the gymnasium is housed, did not form
part of the original Pirates Club building complex. It was only constructed later by the
school itself with funds acquired inter alia from the National Lotter ies Commission
(NLC), by converting the bus storage referred to in the preceding paragraph or parking
into a gymnasium which came to be called the “NCH Muscle Jungle” and branded to
that effect. NCH is the acronym for Northern Cape High School.
7
[12] Mr Hansen is the only shareholder and director of Hansen Elite. He is a n
experienced personal trainer who previously worked at Virgin Active Gymnasium,
Kimberley, and provided personal training services to its various clients. The school
says that Mr Hansen is acquainted with Mr Zandré Swartz (Mr Swartz), an educator and
rugby coordinator at the school. Mr Swartz requested Mr Hansen to assist the school
and its pupils with training as and when required during 2020. However, prior to 2020,
pupils utilise d the gymnasium with or wi thout engaging the training services of Mr
Hansen. The school further explained that the written arrangement entailed that Mr
Hansen, either personally or through Hansen Elite, would provide personal training
services at the gymnasium between 15h30 and 17h00 on weekdays to specific school’s
sports teams at a fee which would be agreed upon between the teams’ coaches and Mr
Hansen. The relevant team and not the school would then be required to remunerate Mr
Hansen for his services. The school maintained that there was no contractual
relationship between itself and the respondents.
[13] The school further averred that the respondents unilaterally sought to impose
fees for the school’s use of the gymnasium facility , which were never p ayable by the
school nor its pupils. It says that on 1 October 2024 Mr Hansen informed Mr Swartz that
the respondents had concluded a lease agreement with the trust in terms of which the
respondents would be entitled to utilise the gymnasium facilities situated on the property
and to provide personal training services to his private clients. During October 2024 Mr
Hansen directed, what he referred to as a “pricing document”, on behalf of Exclusive
Nutrition, his company, to the school in which he set out the prices which he would
charge for providing personal training services to pupils at the gymnasium. On 13
January 2025 Mr Swartz addressed a document entitled “Gym program vir HNK Rugby
January 2025 Mr Swartz addressed a document entitled “Gym program vir HNK Rugby
2025” to Mr Hansen which recorded the times during which the various age groups of
pupils, who participate in rugby, would utilise the gymnasium and contained a request
that the previous year’s times be amended to 15h00 - 17h00.
8
[14] On 15 January 2025 , Mr Ha nsen informed Mr Swartz through a Whats App
message that the school’s rugby teams and coaches no longer had “his permission” to
utilise the gymnasium, which he referred to as “his facility”, and that he would contact
the police in the event the school’s rugby pupils attended the gymnasium. In so doing,
the school submitted that it was despoiled of possession and use of the gymnasium.
[15] The school argued that by virtue of the 2008 deed of settlement , the trust had
exclusive use of the portion of the property on which the sports field and pavilion are
located. It contended that the respondents jointly and separately deprived it of its
undisturbed possession of the gymnasium situated on the property. The right of the
school to occupy the sports ground, inclusive of the gymnasium, does not derive from
the purported lease agreements with the trust. It derives from the trust having acquired
the use of the sports ground from the municipality , specifically for the use by the school
in consonance with the very purpose and objective for which the trust was established.
Whether expressly, tacitly or impl iedly, this arrangement was to endure for as long as
the trust retained permission from the municipality to use the sports ground. The trust’s
primary purpose is to benefit the school, and central to the purpose has always been
the provision of the sports ground for the school’s use.
[16] The school submitted that the type of possession implicated in this application is
quasi possession. It further contended that the respondents never had exclusive use of
the gymnasium. What the respondents cannot gainsay, the school submitted, is the fact
that the school and its pupils had access to the gymnasium facility and were entitled to
the undisturbed possession thereof until 15 January 2025. It seeks only restoration of its
undisturbed possession of the gymnasium between 15h00 and 17h00 on weekdays and
undisturbed possession of the gymnasium between 15h00 and 17h00 on weekdays and
does not seek to deprive the respondents of the historically use which they claim to
have had of the facility.
The respondents’ version
[17] Mr Hansen s tated that at the end of 2020 he consulted and agreed with Messrs
Gerrit Myburgh and Deon Carney , the employees of the school involved in sports
9
coaching, who represented the Northern s Rugby Academy (NPO), a non-profit
company registered by the said employees, to transform the old bus storage facility into
a gymnasium. He therefore denied that he had an arrangement with Mr Swartz in 2020.
He says that Mr Swartz was recently appointed the school’ s rugby organizer after
Mr Carney’s resignation during 2024.
[18] According to Mr Hansen , Messrs Myburgh and Carney, with his inputs,
approached several donors to assist with the construction of the gymnasium . After its
completion, the gym nasium was equipped with his fitness equipment, and that which
the trust and the NPO purchased with funds received from the N LC. He says that he
agreed with the NPO, which was represented by Messrs Myburgh and Carney, that he
would utilise the facilities for his own benefit on condition that he would “pay rent” to the
NPO for the use of the gymnasium equipment. Furthermore, Mr Hansen intimated, in
exchange for such use, he would supply services in the form of strength and
conditioning sessions to the NPO for which he would be reimbursed. The rent payable
by Mr Hansen would be set off against his professional service account , and the NPO
would pay the remaining balance to him monthly.
[19] Mr Hansen stated that on 2 October 2024 he had a discussion with Mr Swartz
and Mr Du Plooy, the school’s headmaster, regarding his services and fees . He agreed
to assist Mr Swartz with the school’s under 19 rugby team free of charge but only for the
month of October 2024 . Further arrangements regarding his services and fees beyond
October 2024 were to be made by Mr Swartz prior to 1 N ovember 2024. As time went
by, he extended the “free of charge” courtesy to Mr Swa rtz until December 2024 when
the school would be in recess.
[20] He further intimat ed that the 2020 agreement between himself and the school ,
regarding his services and fees, was later confirmed by means of a letter dated 4 March
regarding his services and fees, was later confirmed by means of a letter dated 4 March
2021 (FA12), and later in the meeting of 2 October 2024, referred to in the preceding
paragraph, between himself, Mr Swartz and Mr Du Plooy . The agreement was also
reaffirmed through his letter to the school and Mr Swartz during October 2024, that each
10
sports coach would make separate arrangements with the respondents for the use of Mr
Hansen’s services and or the gymnasium on agreed payment terms.
[21] Mr Hansen intimated that since the opening of the gymnasium he had been in
possession and exclusive control thereof. He disputed that the school was ever in
undisturbed possession of the gymnasium. According to him, no person has had access
to the gymnasium without his consent and or assistance. On the evenings he would lock
up the gymnasium and would open it the next morning. Mr Hansen further says that at
no stage did individual learners turn up to utilise the gym nasium. All learners who
attended the gymnasium’s sessions did so with their sport teams and after proper
arrangements had been made with the respondents regarding the payment of fees. He
further denied that the respondents refused the school access. He says that he
indicated to the school that ‘[his] permission is needed to enter’ the facility.
[22] Mr Frankel Engelbrecht and Mr Hendrik Johannes Brand, both the trustees of the
trust, attested to the supporting affidavits for the respondents. They confirmed that the
trust received money from the NLC which was used to purchase , inter alia , the gym
equipment currently utilised by the respondents at the gymnasium. They denied that the
municipality ever indicated that the sports ground, purportedly sold to the trust, w as for
the sole purpose of being u sed by the school. Mr Myburgh also attested to a supporting
affidavit for the respondents. He says that since the building of the gymnasium, Mr
Hansen has been in total control and possession of the gymnasium. He indicated that at
no stage during his tenure at the school, did the school control and or possess the
gymnasium.
The discussion
[23] Essentially, the question that arises for consideration is whether the school had
been despoiled. The mandament van spolie restores unlawfully deprived possession at
been despoiled. The mandament van spolie restores unlawfully deprived possession at
once (ante onia). It is a speedy remedy which is not aimed at the restoration of rights .
Its purpose is to protect possession without first having to embark upon an enquiry, for
11
example, into the question of the ownership of the person dispossessed .4 Put
otherwise, it provides a temporary solution and sets the scene for the subsequent
determination of rights in relation to property. 5 It is rooted in the rule of law and its main
purpose is to preserve public order by preventing persons from taking the law into their
own hands .6 In order to obtain a spoliation order , two allegations must be made and
proved:(a) that the applicant was in possession of the property; and (b) that the
respondent deprived it of possession forcibly or wrongfully against its consent.7 The
onus is on the applicant to prove the required possession and that it was unlawfully
deprived of such possession.8
[24] To buttress their argument that the school’s possession is unsustainable, the
respondents rely on Blendrite (Pty) Ltd and Another v Moonisami and Another
(Blendrite)9 where the Supreme Court of Appeal (SCA), held that:
‘In the present matter, the prior use of the email address and server was not an incident of
possession of movable or immovable property on the part of the first respondent. This was not
even alleged. The first respondent did not possess any movable or immovable property in
relation to his erstwhile use of the server or email address. Any entitlement to use the server
and email address is wrapped up in the contested issue of whether the first respondent remains
a director of Blendrite , and might relate to the terms of his contract of employment. It is a
personal right enforceable, if at all, against Blendrite. . .’
[25] The facts in Blendrite are distinguishable from the present . There, a dispute
arose between the two directors of the appellant as to whether the respondent had
resigned as a director of the appellant. The appellant, on the instructions of its
controlling director, then effected the termination of the respondent’s access to the
appellant’s email address and server. It was on these bases that the SCA concluded as
appellant’s email address and server. It was on these bases that the SCA concluded as
set out in the preceding paragraph.
4 Shoprite Checkers Ltd v Pangbourne Properties Ltd 1994 (1) SA 616 (W) at 619E-F.
5 See Schubart Park Residents' Association and Others v City of Tshwane Metropolitan Municipality and
Another 2013 (1) SA 323 (CC) para 29.
6 Bisschoff and Others v Welbeplan Boerdery (Pty) Ltd 2021 (5) SA 54 (SCA) para 5.
7 Ivanov v North West Gambling Board and Others 2012 (6) SA 67 (SCA) para 19.
8 Yeko v Qana 1973 (4) SA 735 (A) at 739E-F.
9 2021 (5) SA 61 (SCA) para 20.
12
[26] It was contended for the respondents that irrespective of the type of possession
the school alleges it had, such possession and /or use was exercised along with the
broader public and not exclusive because the respondents’ clients had access to and
use of the equipment in the gymnasium. As support for their argument t he respondents
referred to the following dictum in De Beer v Zimbali Estate Management Association
(Pty) Ltd and Another (De Beer)10:
‘A summary of the above cases would seem to me to indicate that the mandament is there to
protect possession, not access. Such possession must be exclusive in the sense of being to the
exclusion of others. The possession of keys by a multiplicity of parties waters down the
possession, and in the present case it becomes so dilute that it ceases to be the sort of
possession that is required to achieve the protection of the mandament. It must be recalled that
the real purpose of the mandament was to prevent breaches of the peace. If someone is in
exclusive possession and exercises such possession, then deprivation thereof can, and often
does, lead to a breach of the peace. No such breach would in the ordinary course of events take
place where a large number of persons have access, rather than possession, of the property in
question.’11
[27] The facts in De Beer were briefly thi s. After having exercised peaceful and
undisturbed access to a ce rtain residential and resort property development for more
than two years, the disc with which the applicant had been issued , in order to gain
access to the development , was disabled. She sought a spoliation order to restore her
access to the development. It appeared, inter alia, that the individual owners of units in
the development and visitors to the development were all issued with discs as the
applicant. The Court held that the disc issued to the applicant was analogous to a key
by which access was gained to the development.12 Further, that the mandament van
by which access was gained to the development.12 Further, that the mandament van
spolie protected possession, not access. 13 The possession sought to be protected had
to be exclusive in the sense of being to the exclusion of others . This is an entirely
different situation to that which confronts this Court in this case.
10 2007 (3) SA 254 (N).
11 Ibid para 54.
12 Supra fn 10 para 33.
13 Ibid para 54.
13
[28] The respondents also relied on Abrahams NO and Others v Geldenhuys NO and
Others14. In that case , the applicants had been members of the club’s committee that
managed the operations of the club’s squash section . T hey were suspended as club
members and therefore lost their memberships. They submitted that spoliation occurred
when the respondents locked the squash facilities and refused them access thereto. It
was there held that the rights associated with membership (including access to the
club’s facilities) are personal rights, purely contractual in nature. That the applicants
were not seeking the restoration of possession, but specific performance which relief fell
outside the ambit of a spoliatory order .15 The present case is wholly different . The
possession and use the school asserts is not founded in a contract.
[29] A deprivation of possession may find a spoliation order with regard to movables,
immovables and quasi-possession of an incorporeal right. 16 It is not available to the
exercise of the rights in a wide sense such as the right of performance of a contractual
obligation. Leach J explained it as follows in Eskom Holdings SOC Ltd v Masinda:17
‘It is necessary to undertake a more detailed examination of the principles applicable to the
mandament. Although it originally protected only the physical possession of movable or
immovable property, this court pointed out in Telkom v Xsinet [2003 (5) SA 309 (SCA) para 9]
that in the course of scientific development it was extended to provide a remedy to protect so -
called “quasi-possession” of certain incorporeal rights, such as those of servitude. But not all
incorporeal rights may be the subject of spoliation. As was explained in FirstRand v Scholtz
[2008 (2) SA 503 (SCA) para 13]:
'The mandament van spolie does not have a catch -all function to protect the quasi-possessio of
all kinds of rights irrespective of their nature. In cases such as where a purported servitude is
concerned the mandament is obviously the appropriate remedy, but not where contractual rights
are in dispute or specific performance of contractual obligations is claimed: its purpose is the
protection of quasi-possessio of certain rights. It follows that the nature of the professed right,
even if it need not be proved, must be determined or the right characterised to establish whether
14 [2025] 2 AII SA 388 (WCC).
15 Ibid para 22.
16 Nino Bonino v De Lange 1906 TS 120 at 122.
17 2019 (5) SA 386 (SCA) para 14.
14
its quasi-possessio is deserving of protection by the mandament. Kleyn seeks to limit the rights
concerned to gebruiksregte such as rights of way, a right of access through a gate or the right to
affix a nameplate to a wall regardless of whether the alleged right is real or personal. That
explains why possession of mere personal rights (or their exercise) is not protected by the
mandament. The right held in quasi-possessio must be a [right of use] or an incident of the
possession or control of the property.'
[30] The respondents argued that the school’s belated claim, to have been only in
possession of the use of the gymnasium, should be rejected, as this was not a case that
they were called to answer. They argued that nowhere in the founding affidavit do the
words “quasi possession” or “use” appear. This entirely different form of possession, it
was argued, was impermissibly raised for the first time in the replying affidavit. Th is
argument is devoid of any merit. The founding affidavit is replete with statements to the
effect that the school enjoyed uninterrupted and free use of the sports ground through
the “deliberate conduit of the trust”. The school further stated that its occupation of the
property arises by virtue of its longstanding use which originated before the trust was
established; and as a beneficiary of the trust which acquired rights in respect of the
property under the 2008 settlement agreement.
[31] I am unpersuaded that there exist genuine material disputes of fact on the
affidavits as the respondents sought to argue. In my view, this case concerns an
incorporeal right of a non-servitutal character . The aerial photograph attached to the
founding papers show that the sports ground is situated adjacent to the school. The
origins of the school ’s possession of the property were not cogently challenged by the
respondents. Additionally, the y did not dispute that the sports ground serve s not as
respondents. Additionally, the y did not dispute that the sports ground serve s not as
“mere track of land but as the heartbeat of the schools’ sporting life”. The sports ground
has been transformed into a vital space of recreation, competition and community
engagement, and has become inseparable from the life and identity of the school. It was
also not gainsaid that from 2008 to 2012 the school enjoyed uninterrupted and free use
of the sports ground through the trust , which was an extension of the school’s
operational framework.
15
[32] Apparent from a document dated 4 March 2021, which is admitted by the
respondents, titled “ WITH REFERENCE TO: THE USE OF THE GYM AT PIRATES”
(FA12), signed by the acting principal and head of sports and marketing, the school was
entitled, to utilise the gymnasium with or without engaging the services of the
respondents. The document states in its concluding paragraph: “These terms, as well
as the other general “rules” for the use of the gym, will be put together in a document
which will have to be signed by the head of each sporting code.’
[33] Mr Hansen requires the school to make payment to the respondents in order for
it to gain access to the gymnasium . He intimates that ‘for periods that the gymnasium
will be occupied by the [school’s] rugby players [he] will also not be able to earn income
from other clients.’ In my view, this was not reason enough to deny the school access to
the gymnasium which it had over the years. A document dated 4 March 2021 (FA12),
which Mr Hansen claimed it confirmed an agreement between himself and the school ,
makes it plain that the appointment of Mr Hansen as conditioning coach for the school’s
sports teams was not accepted by the SGB ; sporting co des were given a leeway to
make arrangements with Mr Hansen with regard to payment for training. The document
categorically states that ‘the school will not be held liable for any non -compliance with
regard to financial arrangements made with Mr Hansen or any other “outsourced ”
trainers’. It also provides for the learners to utilise the gymnasium without soliciting the
services of the respondents. It is not necessary at this stage to determine whether the
respondents were entitled to the payment of fees.
[34] It is significant that Mr Myburgh, in his supporting affidavit, states that the NPO
was registered to obtain funding to support rugby at the school. The NPO applied for
and received funds from the N LC which were used to purchase the gymnasium
and received funds from the N LC which were used to purchase the gymnasium
equipment. If all these were done by the NPO to support the school’s rugby , then it is
problematic for the respondents to lay claim to exclusive use of the gym nasium and its
equipment. How the NPO or the trust was able to agree with the respondents on the
latter’s possession and use of the property was not clarified by the respondents. They
have also failed to produce the lease between themselves and the trust. However,
16
nothing turns on this aspect because the determination of rights or good title to property
does not arise at this stage of the enquiry. I am of the view that the respondents did not
make out a case that they were ever in exclusive possession of the gymnasium. It is not
the school’s case that the gymnasium was solely in its possession. It acknowledged that
the respondents were also in quasi-possession of the facility and do not move for relief
that would deprive them of their possession. Shared control (joint possession) is quite
possible.18
[35] It is so that the nature of the thing possessed, the gymnasium, was not in
continuous use by the school and its learners. Continuous physical contact, occupation
or use is not necessary for the retention of possession once it has been acquired, the
degree of continuity required depend s, amongst others, upon the nature of the thing
possessed and the type of use to which it is put.19
[36] As already alluded to, the gymnasium is situated on the sports ground which the
school, through the trust, for years had permission or right to occupy. Therefore, access
and use of the gymnasium formed an incident of possession of corporeal property. It
bears repeating that t he incorporeal non–servitutal right of use of the gymnasium or
access to the facility , which the school asserts, is not connected to any contractual
relationship between the school and the respondents. In my view , there is no reason
why an incorporeal right of this nature should not form the subject of spoliation
proceedings capable of protection by the mandament van spolie.
[37] The respondents failed to produce credible evidence to demonstrate that the
school was never in possession of the gymnasium. The evidence demonstrates that the
school utilised the gymnasium from 2020 on an unhindered basis until 15 January 2025,
when Mr Hansen directed a WhatsApp message to Mr Swartz in which he unlawfully
when Mr Hansen directed a WhatsApp message to Mr Swartz in which he unlawfully
prohibited the school from gaining access to and use of the facility. By so doing, the
respondents effectively resorted to self -help. On a conspectus of all the evidence that
18 Badenhorst and others Silberberg and Schoeman’s The Law of property 6 ed (2019) LexisNexis at 316
and 334.
19 Ibid at 314.
17
bear upon the issue , the restoration of the peaceful and undisturbed quasi-possession
must be ordered. In the result, I make the following order.
Order
1. The first and second respondents are to forthwith restore to the applicant its
undisturbed possession and use of the gymnasium facility situated on Erf 1[...], a
portion of Erf 1[...], Kimberley, between 15h00 and 17h00 during the weekdays.
2. The first and second respondents are to pay costs of this application on party
and party scale; such costs are to include the fees of counsel on scale B in terms
of Rule 67A read with Rule 69 of the Uniform Rules of this Court.
________________
M V PHATSHOANE
DEPUTY JUDGE PRESIDENT
NORTHERN CAPE DIVISION
Appearances
For the applicant: R Van Der Merwe
Instructed by: Kramer Weihmann Inc, Bloemfontein
Duncan & Rothman Inc, Kimberley
For the respondents: A Botha
Instructed by: Haarhoffs Attorneys, Kimberley.