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
GAUTENG DIVISION, JOHANNESBURG
APPEAL CASE NO: A2024/107540
COURT A QUO CASE NO: 2024/107540
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED:
Date: 2 December 2025
DATE: 2 December 2025
In the matter between:
ERVEN 1[…] WADEVILLE (PTY) LIMITED Appellant
and
JC IMPELLERS (PTY) LIMITED Respondent
Coram: Dippenaar et Yacoob JJ and M Van Nieuwenhuizen, AJ
Heard on: 29 October 2025
Delivered: 2 December 2025
Summary: Mootness - appeal having no practical effect - whether discrete
legal issue arises - general principles restated
JUDGMENT
2
M VAN NIEUWENHUIZEN, AJ (DIPPENAAR Et YACOOB JJ CONCURRING):
[1] This is an appeal against the judgment and substantive order of
Senyatsi J, sitting as court of first instance, granted in the urgent court
on the 2 nd of October 2024. The court a quo granted, inter alia , a
spoliation order directing the appellant to restore the electricity supply to
the leased premises situated at 1[ …] I[…] Road, W […] (“the leased
premises”). The court a quo granted leave to appeal. The respondent
opposes the appeal.
COMMON CAUSE
[2] The following facts and/or circumstances are common cause between
the parties:
[2.1] The respondent is a foundry which specialises in the
manufacturing of custom casings using a variety of materials
for a variety of clients.
[2.2] The respondent uses two electrical ly operated induction
furnaces to manufacture the custom casings.
[2.3] The parties concluded a written three-year lease agreement
pertaining to the leased premises on the 1
st of January 2022,
which expires on 31 December 2025.
[2.4] The respondent defaulted in making payment in respect of its
August 2024 rental invoice.
[2.5] On the 12
th of August 2024 the appellant issued a letter
demanding that the respondent pay s arrear rental and utilities
and followed this up with a letter on the 24 th of August 2024
3
cancelling the lease agreement and threatening ejectment
proceedings against the respondent.
[2.6] On or about the 9 th of September 2024, it came to the
respondent’s attention that the appellant had caused the
electricity to be disconnected.
ISSUES FOR DETERMINATION ON APPEAL
[3] The primary issue on appeal is whether the disconnection of electricity
by the appellant constituted spoliation. In this regard this court was inter
alia requested to determine:
[3.1] whether the respondent’s electricity supply was incidental to its
possession of the leased premises in question;
[3.2] whether spoliation in each case must be determined on its own
facts;
[3.3] whether the appellant resorted to self -help in terminating the
respondent’s supply of electricity without due process;
[3.4] whether the appellant wa s empowered by legislation to
terminate the electricity supply to the respondent without due
process and therefore the supply of electricity should not be
regarded as incidental possession of the leased premises, and
[3.5] whether the respondent discharged the onus f or proving
spoliation.
[4] Prior to the hearing of the appeal this court requested and received
supplementary written submissions from the parties on whether:
4
[4.1] the appeal has become moot;
[4.2] there remains a live controversy between the parties in this
appeal, and
[4.3] any order granted in this appeal will have a practical effect.
COMMON CAUSE FACTS REGARDING THE CURRENT STATE OF AFFAIRS
BETWEEN THE PARTIES1
[5] It is common cause between the parties that:
[5.1] The respondent remains in physical occupation of the leased
premises situated at Erven 1[…] and 1[…], W[…], G[…].
[5.2] The lease agreement was cancelled by the appellant on the
24th of August 2024, before the disconnection of electricity on
or about the 8 th of September 2024. The validity of the
cancellation is in dispute.
[5.3] The electricity supply has not been restored since i ts
disconnection, and the respondent continues to occupy the
leased premises without electricity.
[5.4] After the judgment of the court a quo, the respondent instituted
arbitration proceedings as envisaged in paragraph 25.3 of the
order of the court a quo.2 The arbitration proceedings have not
been finalised and remain pending.
[5.5] A rent interdict action instituted by the appellant in the
1 Joint Practice Note, CaseLines 0029-1 to 0029-6.
2 Vol 3, Judgment, p 215, para 25.3, CaseLines, 009-229.
5
Germiston Magistrate’s Court under case number 4925/2024 3
in respect of which the appellant seeks, inter alia , confirmation
of cancellation of the lease agreement as well as payment of
arrear rental and arrear utilities, has also not been finalised
and remains extant.
[5.6] In addition, following the order and judgment of the court a
quo, the appellant instituted an eviction application in this court
under case number 115868/2024.
[5.7] The eviction application was set down for hearing on 24
November 2025.
[5.8] Accordingly, excluding this appeal, there are three disputes
between the parties which remain extant.
POSITION OF THE PARTIES REGARDING MOOTNESS
[6] The appellant’s position is that the respondent’s continued occupation
without electricity confirms that no dispossession occurred, the appeal
remains live and justifiable, and the judgment of the court a quo
continues to have practical and financial consequences.
[7] The respondent’s position is that given that the lease agreement lapses
on the 31
st of December 2025 and that the justi ciable disputes between
the parties remain extant and are to be determined in other forums , the
appeal has become moot and any order granted in respect of this
appeal would not have any practical effect – in other words , should the
appeal succeed, any order restoring electricity w ould have no continuing
relevance beyond the life of the lease.
4 The respondent emphasises
that the lease between the parties expires on the 31 st of December
3 Vol 2, Appellant’s AA, Annexure “AB1”, pp 164-165, CaseLines 009-175 to 009-176.
4 Para 17 and 18, Supplementary Joint Practice Note, CaseLines 029-4 to 029-5.
6
2025, and that the appellant has, in any event, cancelled the lease.
Accordingly, so it is submitted, any order or judgment in respect of this
appeal will not alter these facts. The respondent submits that the appeal
should be dismissed on this ground alone.
STATUTORY FRAMEWORK AND LEGAL PRINCIPLES OF MOOTNESS
[8] Section 16(2)(a)(i)5 reads as follows:
“When at the hearing of an appeal the issues are of such a nature that
the decision sought will have no practical effect or result, the appeal may
be dismissed on this ground alone.”
[9] This provision codifies the mootness doctrine, reflecting the principle
that courts exist to resolve live controversies, not academic,
hypothetical, or absurd disputes.6
[10] The law on mootness is well-established.7 A case is moot where there is
no longer a live dispute or controversy between the parties, and the
court’s judgment will have no practical effect on them.
8 Mootness is,
however, not an absolute bar to determining an appeal. An appeal court
has the discretion to determine an issue that is moot where it is in the
interests of justice to do so. In Independent Electoral Commission v
5 Superior Courts Act 10 of 2013 (as amended).
6 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC)
at para 21.
7 Normandien Farms (Pty) Ltd v South African Agency for Promotion of Petroleum Exportation
and Exploration (SOC) Ltd and Others [2020] ZACC 5, 2020 (6) BCLR 748 (CC); 2020 (4) SA
409 (CC) para 47 (Normandien Farms) ; Aptitude Trading Enterprise (Pty) Ltd v The City of
Tshwane Metropolitan Municipality and Another [2025] ZASCA 72; 2025 JDR 2395 (SCA)
(Aptitude), paras 14 -16, quoting Solidariteit Helpende Hand NPC v Minister of Co- Operative
Governance and Traditional Affairs [2023] ZASCA 35, para 12; Centre for Child Law v The
Governing Body of Hoërskool Fochville 2015 ZASCA 155; [2015] 4 All SA 571 (SCA); 2016
Governing Body of Hoërskool Fochville 2015 ZASCA 155; [2015] 4 All SA 571 (SCA); 2016
(2) SA 121 (SCA) (Centre for Child Law ), para 11; Western Cape Provincial Government and
Others v DC Security (Pty) Ltd t/a DC Security and Others [2025] ZASCA 35; [2025] JOL
68755 (SCA) paras 18-20.
8 National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs [1999]
ZACC 17; 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC), para 21; Normandien Farms, para 47.
7
Langeberg Municipality,9 the Constitutional Court held:
“A prerequisite for the exercise of the discretion is that any order which
[the court] may make will have some practical effect either on the parties
or on others. Other factors that may be relevant will include the nature
and extent of the practical effect that any possible order might have, the
importance of the issue, its complexity, and the fullness or otherwise of
the argument advanced.”
10
[11] An added consideration is whether the issue is a discrete legal one of
public interest that w ill affect matters in the future on which the
adjudication of the court is required.11
[12] In Akani Retirement Fund Administrators (Pty) Ltd and Others v Moropa
and Others,12 the Supreme Court of Appeal stated the following:13
“The principles and authorities on mootness and the court’s discretion to
hear appeals despite mootness, are settled, and are conveniently
collated in Legal Aid South Africa v Magidiwana. 14 Key among the
principles is that courts ought not to decide issues of academic interest
only. Accordingly, where the outcome of an appeal would have no
practical effect, the appeal would be dismissed on that basis alone. T he
other is that, notwithstanding the mootness of the appeal as between the
parties to the litigation, the court has a discretion to deal with the merits
of an appeal. In this regard reference was made to Qoboshiyane v
9 Independent Electoral Commission v Langeberg Municipality [2001] ZACC 23; 2001 (3) SA
925 (CC); 2001 (9) BCLR 883 (CC) (IEC). See also Road Traffic Management Corporation v
Tasima (Pty) Ltd; Tasima (Pty) Ltd [2020] 12 BLLR 1173 (CC); 2021 (1) SA 589 (CC), para
127.
10 IEC para 11.
11 Centre for Child Law paras 14.
12 (1125/2022 and 1129/2022) [2025] ZASCA 13 (21 February 2025).
13 Ibid para 14.
14 Legal Aid South Africa v Magidiwana and Others 2014 ZASCA 141; 2015 (2) SA 568 (SCA);
[2014] 4 All SA 570 (SCA). Confirmed on appeal in Legal Aid South Africa v Magidiwana and
[2014] 4 All SA 570 (SCA). Confirmed on appeal in Legal Aid South Africa v Magidiwana and
Others [2015] ZACC 28; 2015 (6) SA 494 (CC); 2015 (11) BCLR 1346 (CC).
8
Avusa (Qoboshiyane)15 where the following was said:
‘The court has a discretion in that regard and there are a number of
cases where, notwithstanding the mootness of the issue as between the
parties to the litigation, it has dealt with the merits of an appeal. With
those cases must be contrasted a number where the court has refused
to deal with the merits. The broad distinction between the two classes is
that in the former a discrete legal issue of public importance arose that
would affect matters in the future and on which the adjudication of this
court was required, whilst in the latter no such issue arose. ’”
16
(Emphasis added)
The aforesaid legal principles were recently reaffirmed by the Supreme
Court of Appeal in Lopes and Another v Executive Major of the Knysna
Local Municipality and Others.17
[13] In Minister of Tourism v Afriforum NPC 18 the Constitutional Court stated
as follows:
“[23] A case is moot when there is no longer a live dispute or
controversy between the parties which would be practically
affected in one way or another by a court’s decision or which
would be resolved by a court’s decision. A case is also moot
when a court’s decision would be of academic interest only .”
(Emphasis added)
[14] Mootness plays a critical role in ensuring judicial economy, which refers
to the efficient use of court resources. Courts are overburdened with
15 Qoboshiyane NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others [2012]
ZASCA 166; 2013 (3) SA 315 (SCA).
16 Ibid, para 5; Akani Retirement Fund Administrators (Pty) Ltd and Others v Moropa and Others
(1125/2022 and 1129/2022) [2025] ZASCA 13 (21 February 2025).
17 (345/2024) [2025] ZASCA 157 (20 October 2025) at para 13
18 Minister of Tourism and Others v Afriforum NPC and Another 2023 ZACC 7 (CC) para 23
dated 8 February 2023 and also dealing with the effects of the Covid-19 pandemic
9
cases, and the principle of mootness helps ensure that only disputes
that require resolution are brought before the judiciary. By filtering out
cases that no longer present a live issue, the doctrine of mootness
prevents the judiciary from expending time and resources on academic
or irrelevant matters. This, in turn, allows the courts to focus on cases
that have practical significance and require immediate adjudication.
19
[15] Mootness need not always be raised formally in affidavits. Indeed, it
may not always be possible to raise the question on affidavit, particularly
where the issues raised for consideration have been overtaken by
subsequent events that either arise after the filing of, or are not
foreshadowed in, the earlier affidavits. There can be no absolute
procedural bar to mootness being raised for the first time in the heads of
argument filed on appeal. If anything, it has come to be raised, not
infrequently, mero motu by courts.20
THE APPELLANT’S CONTENTIONS
[16] The appellant contends that the appeal is not moot for the following
reasons:
[16.1] The respondent remains in occupation of the leased premises
without electricity. The dispute between the parties as to the
lawfulness of the disconnection and the effect of the lease
cancellation persists in fact and in law.
[16.2] The order of the c ourt a quo continues to have tangible
consequences: It declared the appellant’s conduct unlawful,
imposed a costs order, and impliedly limits the appellant’s
19 Boyosinyane v Maroga and Others (UM 197/2022) [2024] ZANWHC 221; [2024] 4 All SA 378
(NWM) (23 August 2024) at para 36. Also see Normandien Farms (Pty) Ltd v South African
Agency for Promotion of Petroleum Exportation and Exploitation SOC Ltd and Others Ibid at
para 47
20 Akani supra at para 30
10
ability to exercise contractual rights in similar future matters.
[16.3] The ongoing arbitration proceedings and eviction application
underscore that the parties remain in dispute over their
respective rights and obligations. The controversy has not
been extinguished.
[16.4] Even apart from the direct effect between the parties, the
appeal raises a question of law of general and recurring
significance, namely, whether a landlord’s disconnection of
electricity after lawful cancellation of a lease constitutes
spoliation.
21
[17] The appellant argues that a determination by this court will have direct
and substantial practical effect in that:
[17.1] it will reverse the adverse costs order imposed by the court a
quo;
[17.2] it will clarify the appellant’s legal position and remove the
stigma being branded a “spoliator”, and
[17.3] it will provide authoritative guidance to lower courts and
practitioners on the intersection between contractual rights and
the possessory remedy of spoliation.
[18] These consequences the appellant submits meet the “practical effect”
requirement articulated in Qoboshiyane NO v Avusa Publishing Eastern
Cape (Pty) Ltd.
22
21 Appellant’s supplementary heads of argument on mootness, CaseLines, 002- 58 to 002 -59,
para 11
22 Qoboshiyane NO v Avusa Publishing Eastern Cape (Pty) Ltd (supra)
11
DELIBERATION
No practical effect
[19] Having regard to the common cause facts as set out in paragraph 5 , no
practical effect will be served by the outcome of this appeal.
[20] The respondent approached the court a quo for a direction to forthwith,
upon granting of the order of the court a quo, restore the electricity
supply at the leased property . A further order was sought by the
respondent interdicting and restraining the appellant from disconnecting
the supply of electricity or any other services from the property pending
finalisation of the arbitration proceedings which were to be initiated by
the respondent.
23
[21] Due to the effluxion of time, the respondent will not achieve the end
sought to be achieved by approaching the court a quo. On the other
hand, e ven if the order of the court a quo were to be set aside on
appeal, such order w ould have no practical effect or result for the
appellant because the appellant never complied with the order of the
court a quo.
[22] It is clear from the appellant’s supplementary heads of argument that it
seeks this court’s judgment to determine the course of future litigation. It
is not within the purview of courts to give advisory opinions about future
events on the notional or hypothetical possibility that they could occur in
the future.
24 As recently held in Akani Retirement Fund Administrators
23 Order of Senyatsi J, CaseLines, section 009-282 to 009-229.
24 JT Publishing (Pty) Ltd v Minister of Safety and Security 1997 (3) SA 514 (CC); Police and
Prisons Civil Righ ts Union v South African Commercial Services Workers Union and Others
2018 ZACC 24; 2018 (11) BLLR 1035 (CC); 2018 (11) BCLR 1411 (CC); 2018 (39) ILJ 2646
(CC); 2019 (1) SA 73 (CC), para 43.
12
(Pty) Ltd and Others v Moropa and Others:25
“… What the parties seek is this Court’s opinion as to possible future
litigation prospects. This we decline to provide. As pointed out in Radio
Pretoria v Chairperson ICASA, 26 courts of appeal ‘do not give advice
gratuitously. They decide real disputes and do not speculate or theorise
...’27 In addition, the doctrine of ripeness stands in the way of
considering prospective litigation. As was put by the Constitutional Court
in Ferreira v Levin:28
‘[T]he doctrine of ripeness serves the useful purpose of highlighting that
the business of a court is generally retrospective; it deals with situations
or problems that have already ripened or crystallized, and not with
prospective or hypothetical ones.29’”30
The appeal is not relevant to the eviction and lease disputes
[23] The parallel proceedings will determine the parties’ respective rights.
The outcome of the appeal is not relevant to the eviction and lease
disputes which remain extant.
[24] The eviction, rental dispute and arbitration proceedings are independent
and self-contained. These proceedings turn on questions of ownership,
lease compliance and contractual breach, not on possession at the time
of the spoliation.
25 Ibid, para 26
26 Radio Pretoria v Chairperson of the Independent Communications Authority of South Africa
and Another [2004] ZASCA 69; [2004] All SA 16 (SCA); 2005 (1) SA 47 [SCA].
27 Ibid, para 41.
28 Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others [1995] ZACC
13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC).
29 Ferreira v Levin NO and Others para 199. Also see the recent matter of Lopes and Another v
Executive Mayor of the Knysna Local Municipality and Others (345/2024); [2025] ZASCA 157
(20 October 2025) at para 13
30 Ibid, para 26.
13
[25] The outcome of this appeal will not affect whether the respondent
lawfully occupies the leased premises – that is for the court considering
the eviction to determine.
[26] Further, the outcome of this appeal will not affect the rental dispute
between the parties – this will be determined by the Germiston
Magistrate’s Court and the arbitration proceedings.
[27] The existence of parallel proceedings does not preserve moot litigation
where the issue is self -contained and has no practical bearing on those
disputes.
[28] Whether or not the appeal is heard, the aforesaid proceedings will
continue independently, rendering the outcome of the appeal
inconsequential to the live disputes between the parties.
[29] In any event, even if the abovementioned parallel proceedings turn on
the existence and/or absence of the spoliation order, that is not the test
for determining the question of mootness.
31 The test is whether or not
there will be a practical effect or result. The appeal thus fails to meet the
positive test set out in section 16(2)(a)(i) of the Act.
[30] Insofar as the appellant argues that the c ourt a quo’s judgment and
order limit the appellant’s ability to exercise contractual rights in similar
future matters, it is not the remit of the court to deal with hypothetical or
prospective situations or problems that have not already ripened or
crystallised.32
[31] It is furthermore apposite to mention that the appeal process is not a
31 Premier Provincial Mpumalanga v Groblersdal se Stadsraad 1998 (2) SA 113 (6) SA at
1141D-F; Dormell Properties 282 CC v Renasa Insurance Co Ltd and Others NNO 2011 (1)
SA 70 (SCA) at 91E-93C; ABSA Bank Ltd v Van Rensburg 2014 (4) SA 626 (SCA) at 629D-E;
City Capital SA Property Holdings Ltd v Chavonnes Badenhorst and St Clair Cooper 2018 (4)
SA 71 (SCA) at 65B-D.
32 Ferreira v Levin Ibid para 199.
14
forum for reputational rehabilitation.33
Costs order in the court a quo
[32] The existing costs order, while incidental, does not justify the appeal
being entertained.
[33] In any event, section 16(2)(a)(ii) provides as follows:
“Save in exceptional circumstances, the question whether the decision
would have no practical effect or result is to be determined without
reference to any consideration of costs.”
[34] Where the only remaining issue upon appeal is costs and the
substantive relief is moot, an appeal may be dismissed on that ground
unless the costs order has some additional practical effect or the
discretion was not judicially exercised.
34
[35] In terms of this subsection the question whether the judgment or order of
the court of appeal w ill have a practical effect or result could be
determined with reference to considerations of costs in exceptional
circumstances: for example, where considerable costs have been
incurred in the case, the judgment of the court of appeal will indeed have
a practical effect or result and the appeal should not be dismissed in
terms of section 16(2)(a)(i) of the Act.
35 The costs referred to in this
subsection are the costs incurred in the court against whose decision
33 Akani Retirement Fund Administrators (Pty) Ltd and Others v Moropa and Others supra.
34 Minister of Justice and Others v Estate Stransham-Ford 2017 (3) SA 152 (SCA) at para 21
35 Oudebaaskraal (Edms) Bpk v Jansen van Vuuren 2001 (2) SA 806 (SCA) at 812C -F; John
Walker Pools v Consolidated Aone Trade and Invest 6 (Pty) Ltd (In Liquidation) 2018 (4) SA
433 (SCA) at 436C -F and see Minister of Rural Development and Land Reform v Phillips
[2017] 2 All SA 33 (SCA) at para 37
15
the appellant is seeking to appeal, not the costs in the appeal.36
[36] The Supreme Court of Appeal has held that when interpreting the
concept “exceptional circumstances”, courts “will best give effect to the
intention of the legislature by taking a stricter rather than a liberal view of
applications for exemption, and by carefully examining any special
circumstances relied upon” .
37 A failure to exercise judicial discretion
constitutes an exceptional circumstance for purposes of this
subsection.38 So too where the exercising of a true (i.e. strict) discretion
was affected by a misdirection.39
[37] In Radio Pretoria v Chairman, Independent Communications Authority of
South Africa and Another40 the court found that there may be rare cases
where the court considers it in the interests of justice to clarify or adjust
the costs order. This is not one of those instances.
[38] In casu, the discretion of the court a quo in granting costs against the
appellant cannot be interfered with as there are no exceptional
circumstances justifying this extraordinary measure, nor has any been
alleged.
The interests of justice
[39] It is trite that despite the absence of a practical effect, the matter may
36 John Walker Pools v Consolidated Aone Trade and Invest 6 (Pty) Ltd (In Liquidation) 2018 (4)
SA 433 (SCA) at 436D-E
37 Ngwenya NO v Kruger (Unreported SCA case number 1060/16 dated 6 September 2017) at
para 8, citing Norwich Union Life Insurance Society v Dobbs 1912 AD 395 at 399, Zuma v
Office of the Public Protector (Unreported, SCA case number 1447/2018 dated 30 October
2020) at para 20.
38 Van Staden and Others NNO v Pro-Wiz (Pty) Ltd 2019 (4) SA 532 (SCA) at para 8; Roadmac
Surfacing (Pty) Ltd v MEC for the Department of Police, Roads and Transport (Unreported,
SCA case number 462/2023 dated 14 November 2024) at para 16.
39 Fidelity Security Services (Pty) Ltd v The City of Cape Town (Unreported, WCC case number
39 Fidelity Security Services (Pty) Ltd v The City of Cape Town (Unreported, WCC case number
A250/2018 dated 6 February 2019) at para 15 and see Kwafel CC v KwaDukuza Municipality
(Unreported, KZD case number AR691/2017 dated 16 October 2020) at para 29.
40 Radio Pretoria v Chairman, Independent Communications Authority of South Africa and
Another 2005 (1) SA 47 (SCA).
16
still be heard if it would be in the interests of justice to do so.41
[40] Mr Carstens on behalf of the appellant argues that even apart from the
direct effect between the parties, the appeal raises a question of law of
general and recurring significance, namely, whether a landlord’s
disconnection of electricity after lawful cancellation of a lease constitutes
spoliation.
[41] Mr Carstens argues that the interests of justice strongly favour that this
court determine the merits of the appeal. He submits that the judgment
of the court a quo has created uncertainty as to whether the electricity
supply under a lease (commercial lease) is an incident of possession
capable of protection by the mandament and that the correct delineation
of this principle has implications far beyond the present litigants. In this
regard Mr Carstens places reliance for his contentions on the matters of
Eskom Holdings SOC Ltd v Metchem Steelpoort CC
42 and Zungu v
Nilgra Flats CC.43
[42] Mr Carstens argues that the decision in Eskom Holdings SOC Ltd v
Masinda44 read with the judgment of Van der Linde J in Metchem
Steelpoort CC v Eskom Holdings SOC Ltd ,45 underscores that spoliation
relief operates as an interim restoration of possession, not as a
mechanism for enforcing contractual performance. He submits that
clarifying this remains of pressing doctrinal importance.
[43] In developing the appellant’s argument , Mr Carstens argues that
contrastingly, conflicting rulings have emerged from the judgment in
Eskom Holdings SOC Ltd v Masinda.
46 Mr Carstens argues that these
judgments, amongst other things, have determined that although the
41 Qoboshiyane NO v Avusa Publishing Eastern Cape (Pty) Ltd supra at para 6
42 (A5049/2019) [2020] ZAGPJHC 31 (19 February 2020), at paras 22-25 and 35
43 (2017/44199) [2017] ZAGPJHC 417 (23 November 2017), para 11
44 2019 (5) SA 386 (SCA)
45 GJ, 2019
46 Eskom Holdings SOC Ltd v Masinda 2019 (5) SA 386 (SCA)
17
purported right to electricity supply is a personal right, they still
acknowledged the availability of the mandament van spolie’s protection.
[44] Specific reference was made to Wilrus Trading CC and Another v Dey
Street Properties and Others 47 where the court stated that the
authorities in Masinda can be divided into three categories. 48 In this, the
court relied on the decision of Makeshift 1190 (Pty) Ltd v Cilliers.49
[45] The respondent correctly contends that the Makeshift matter is not as
controversial as the appellant makes it out to be.
[46] The appellant contends that the matter raises a legal issue of general
importance, namely whether a landlord may lawfully disconnect
electricity where a tenant defaults. The issue articulated by the appellant
is too broadly stated, given that each case is fact specific.
[47] The law on this point is well -settled – a spoliation order is competent
where there has been unlawful deprivation of possession or quasi -
possession, including interference with electricity supply.50
[48] This appeal does not raise any novel and/or constitutional questions –
the existing jurisprudence provides sufficient clarity. The interests of
justice exception applies only in exceptional circumstances typically
where the issue affects the public at large, has recurring implications, or
where the clarification of law is urgently needed.
51
[49] This is not such a case. The present matter concerns a private dispute,
there is no recurring public controversy, no constitutional dimension, and
no gap in the law requiring clarification. In addition, each matter ought to
47 2021 ZAGPPHC (9 February 2021)
48 Appellant’s authority bundle, 004(2-29), para 32
49 2020 (5) SA 538 (WCC), para 32-35
50 Impala Water Users Association v Lourens NO 2008 (2) SA 495 (SCA) at paras 19-20; Telkom
SA Ltd v Xsinet (Pty) Ltd [2003] ZASCA 35; 2003 (5) SA 309 (SCA) (31 March 2003) at para 9
51 Qoboshiyane NO v Avusa Publishing Eastern Cape (Pty) Ltd supra at para 6
18
be determined on its own facts/merits. Courts do not provide legal
advice in a vacuum.
[50] For all the reasons stated above we find that this matter does not meet
the threshold for interests of justice.
[51] There is no discrete live issue before this court. In the circumstances, it
was not necessary to go into the merits of the matter.
CONCLUSION
[52] The appeal has become moot within the meaning of section 16(2)(a)(i)
of the Act 52 as the lease is nearing expiry. There exists no live
controversy for this court to resolve. The outcome will have no effect on
the pending eviction, arbitration, or rental proceedings. There are no
interests of justice considerations that warrant us to overlook the
mootness of this case. It follows that the appeal falls to be dismissed on
this basis. Costs follow the result.
ORDER
[53] In the result, the following order is made:
The appeal is dismissed with costs on Scale B , including the
costs of two counsel.
52 Superior Courts Act 10 of 2013 (as amended)
19
______________________________________
M VAN NIEUWENHUIZEN
Acting Judge of the High Court of South Africa
Gauteng Division, Johannesburg
Delivered:
This judgment was prepared and authored by the Judges whose names
are reflected and is handed down electronically by circulation to the
Parties/their legal representatives by email and by uploading it to the
electronic file of this matter on CaseLines. The date for hand-down is
deemed to be on 2 December 2025.
HEARD ON: 29 October 2025
DATE OF JUDGMENT: 2 December 2025
FOR APPELLANT:
J C Carstens
K M Carstens
INSTRUCTED BY: Martin Attorneys
E-mail: jason@martinattorneys.co.za
FOR RESPONDENT:
S R Mabaso
C V Beukes
INSTRUCTED BY: Mota Africa Incorporated
E-mail: thabo@motamota.africa.com