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IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Reportable/Not Reportable
Case no: 2025-164852
In the matter between:
MOOI PLAATS SOLAR POWER (RF) (PTY) LTD Applicant
and
BOVLEI BOERDERY TRUST First Respondent
CAREL LINDO VAN DER MERWE Second Respondent
Neutral citation: Mooi Plaats Solar Power (RF) ( Pty) Ltd v Bovlei Boerdery Trust
and Another (2025-164852) (30 January 2026).
Coram: TYUTHUZA AJ.
Heard: 24 October 2025.
Delivered: 30 January 2026.
Summary:Law of Property – Mandament van spolie – urgency thereof – requirements – right of applicant to access to leased property through respondent’s private gate – applicant’s reliance on contractual obligations and rights in terms of lease agreement – applicant failed to prove undisturbed
and free possession.
2
ORDER
1. The application is dismissed with costs, which costs shall include counsel’s
costs on scale B.
___________________________________________________________________
JUDGMENT
Tyuthuza AJ
INTRODUCTION
1. The applicant approached th is Court for urgent relief based on the
mandament van spolie and in the alternative, a temporary interdict . During
oral argument counsel for the applicant indicated that , based on the
respondents’ version, it effectively abandon s the relief for a temporary
interdict.
2. The application was only confined to the mandament van spolie, wherein the
applicant seeks an order restoring access to the primary access gate
situated at the entrance to PV Area 1 on Remaining Extent of Portion 1
(Bovenvlei) Farm Leuwe Kop No. 1[...], U[...] Municipality, Hanover District
(the property).
3. The applicant basically seeks a final order that the status quo in respect of
its access to the private road and gate be restored to enable the applicant
and its contractors to have access the property.
BACKGROUND
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4. The applicant, Mooi Plaats Solar Power (RF) (Pty) Ltd, is a private company
with limited liability which is developing, constructing and operating a 240
MW (AC) Mooi Plaats Solar Facility on the property.
5. The first respondent, the Bovlei Boerdery Trust, is the owner of the property.
The second respondent, Carel Lindo Van Der Merwe, is a trustee of the first
respondent.
6. In December 2023, the parties executed a notarial lease agreement in terms
of which the applicant was granted unrestricted access to and use of the
property for the duration of the lease agreement.
7. A perpetual access servitude was registered in December 2023 which
granted the applicant the right of access along the existing gravel roads and
through the gates to the lease area.
Applicant’s version
8. The applicant seeks an order that the respondent unlock and keep unlocked
the primary access gate situated at the entrance to PV Area 1 and to restore
to it undisturbed possession of, and twenty -four-hour vehicular access
through the gate to the leased premises without any unilateral restriction or
limitation as to the class, nature, load, frequency or timing of vehicles. The
applicant alleges that the gate is the sole practical entrance to the
construction site.
9. The perpetual access servitude registered in December 2023 secured the
applicant’s right of access along the existing gravel road s and through the
gates to the leased area.
10. Until 2 August 2025, t he applicant had been making use of the entrance in
question for months and had free, unfettered access to the construction site
at all relevant times. It is common cause that the gate was locked on 2
August 2025 but was subsequently unlocked on 9 September 2025 and
remains unlocked.
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11. Since 10 September 2025 , the second respondent has implemented
unilateral and unlawful restrictions , which interfere with and frustrate the
applicant’s access and use, which it previously enjoyed. The applicant
argues that the respondents have curtailed access by way of these unilateral
restrictions.
Respondents’ version
12. The respondents submit that the applicant does not have a right to use the
gate, and for it to be kept unlocked, for purposes of giving twenty -four-hour
vehicular access, without any restriction or limitation as to the class, nature,
load, frequency or timing of vehicles passing through the gate. The
respondents submit that the applicant already has access through a bigger
gate, which serves as the main gate to the leased area and the project.
13. The respondents dispute that the applicant had use of the gate in the
manner which it seeks and denies that the applicant was deprived of the
possession at the time the application was launched. It is submitted that the
gate was securely locked from 18h00 to 06h00 every day and was not, as
the applicant avers, kept unlocked at all times.
14. The gate at the centre of the dispute is a private gate and ha s, save on
limited occasions, been used exclusively by the respondents . The applicant
only started using the gate in July 2025, upon permission being granted to
use the private gate and road on a temporar y basis and on strict conditions.
Such permission was granted to the applicant to set up a temporary concrete
batch on the respondents’ farm, outside the leased area for cement trucks to
transport the cement by way of the private road.
15. Permission was also asked and granted on strict conditions that only delivery
trucks may use the private road to transport raw materials from the public
road through the private gate to the new concrete batch plant. Further, that
the use of the private road was only for daytime as the gate would be
securely locked during the night.
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16. The respondents locked the gate in order to restore the status quo that
existed prior to July 2025 . Thereafter, the applicant and its contractors
resumed the use of the other roads along which they maintained unfettered
access to the leased area.
17. The r elief sought by the applicant goes far beyond the restoration of the
status quo ante.
18. It was submitted that the spol iation implies a deprivation of use and not a
mere annoyance or disturbance of possession.
URGENCY
19. It is trite, as enunciated by the Court in the matter of Mfuniselwa v
Mfuniselwa and Others ,1 that a spoliation remedy is designed as a “speedy
remedy” which provides summary relief . This is because of its underlying
purpose – to ensure the respect of the rule of law so that no resort to self -
help should be tolerated.2
20. In Mangala v Mangala3, the Court held that an applicant seeking a spoliation
remedy must either comply with the Uniform Rules of Court in the normal
way or make out a case for urgency in accordance with the provisions of
Rule 6(12)(b). This position has been affirmed in Mans v Mans 4 wherein the
issue of urgency in the context of spoliation proceedings was discussed as
follows:
‘[6] … it is trite that a litigant who relies on urgency in order to justify a departure
from the strict provisions of the Rules is required in terms of Rule 6(12)(b) to
“set forth explicitly the circumstances which he avers render the matter
urgent and the reasons he claims that he could not be afforded substantial
redress at a hearing in due course ”. It is also true that there are numerous
examples in our case law where applications have been dismissed because
a party has failed to comply with these provisions.’
1 (2818/2022) [2022] ZAECQBHC 47 (13 December 2022) para 10.
2 Bisschoff and Others v Welbeplan Boerdery (Pty) Ltd 2021 (5) SA 54 (SCA) para 5.
3 1967 (2) SA 415 (E) at 415G.
4 1999 JDR 0450 (C) paras 6 -10; see also Du Preez v Du Preez (597/2025) [2025] ZANCHC 28
4 1999 JDR 0450 (C) paras 6 -10; see also Du Preez v Du Preez (597/2025) [2025] ZANCHC 28
(28 March 2025) para 14.
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21. It is incumbent upon the litigant wishing to dispense with the ordinary rules of
procedure of this Court to stipulate the reasons why the matter is indeed
urgent, and further to stipulate specifically why it will not be afforded redress
in due course should the ordinary procedures be followed.5
22. The respondents contend that the application is not urgent, or that the
urgency is self-created, and that the applicant has been using an alternative
route and/or entering through the main gate.
23. The applicant submits that this is a spoliation application and by its very
nature, is urgent and that the restoration of the status quo should be ordered
without delay. Nonetheless, the applicant proceeds with submissions to
make out a case for urgency in terms of Rule 6(12).
24. The applicant submits that every additional day of restricted access
compounds substantial and potentially irrecoverable loss of time and money.
The alternative route is said to be commercially untenable as it yield s
additional costs of R600 000 per day. Further , the delay imperils national -
grid connection milestones.
25. Commercial interests have been found to be equally worthy of protection to
justify reliance on Rule 6(12). 6 Based on the facts as a whole and the
chronology of events since August 2025, I am of the view that the matter is
urgent.
SPOLIATION
Legal principles
26. In Du Preez v Du Preez 7, Mamosebo ADJP discussed the spoliation remedy
in the following terms:
5 Rule 6(12)(b) stipulates that: “ In every affidavit or petition filed in support of any application under
paragraph (a) of the subrule, the applicant shall set forth explicitly the circumstances which he avers
render the matter urgent and the reasons why he claims that he cannot be afforded substantial
redress at a hearing in due course.”
6 Twentieth Century Fox Film Corporation and Another v Anthony Black Films (Pty) Ltd 1982 (3) SA
582 (W) at 586F-G; see also Avis Southern Africa (Pty) Ltd and Others v Porteous and Another 2024
(2) SA 386 (GJ) paras 17-21.
7 (597/2025) [2025] ZANCHC 28 (28 March 2025) para 16 ; see also Van Rhyn and Others NNO v
Fleurbaix Farm (Pty) Ltd 2013 (5) SA 521 (WCC) para 7.
7
‘In Nino Bonino v De Lange8 Innes CJ explained the nature of spoliation:
“Spoliation is any illicit deprivation of another of the right of possession which he has,
whether in regard to movable or immovable property or even in regard to a legal right.”
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. The mandament van
spolie is designed to be a robust, speedy remedy which serves to prevent recourse
to self-help.’
27. Gilbert AJ in Merveille IMP and EXP (Pty) Limited and Others v Apple INC
and Others9 explained the requirements for a mandament as follows:
‘The requirements for a spoliation order are clear: an applicant must prove that he
was in peaceful and undisturbed possession (occupation) of the property and that
the respondent deprived him of his possession (occupation) forcibly or wrongfully or
against his consent. Bristowe J in Burnham v Neumeyer 10 is typically cited as
authority:
“Where the applicant asks for spoliation he must make out not only a prima facie case,
but he must prove the facts necessary to justify a final order – that is, the things alleged
to have been spoliated were in his possession and they were removed from his
possession forcibly or wrongfully or against his consent.”’11
28. Accordingly, to succeed with an application for the mandament van spolie ,
the applicant must prove two requirements:12
27.1. First, peaceful and undisturbed possession at the time of
dispossession: Generally, possession is established by physical
control and the intention to possess. Nonetheless, continuous
physical contact or use is not necessary for the retention of
possession once it has been acquired, the degree of continuity
8 1906 TS 120 at 122.
9 (2025/198671) [2025] ZAGPJHC 1139 (10 November 2025) para 31.
10 1917 TPD 630 at 633.
9 (2025/198671) [2025] ZAGPJHC 1139 (10 November 2025) para 31.
10 1917 TPD 630 at 633.
11 See also Nienaber v Stuckey 1946 AD 1049 at 1053 and Painter v Strauss 1951 (3) SA 307 (O) at
311H-312C.
12 Yeko v Qana 1973 (4) SA 735 (A) at 739E-G.
8
required depends, inter alia, upon the nature of the thing possessed
and the type of use to which it is put.13
27.2. Second, unlawful deprivation of possession by the respondents:
Spoliation occurs when dispossession happens without the consent
of the possessor or recourse to law , regardless of how it is effected
(for example, by force, deceit, or stealth).
29. In Blendrite (Pty) Ltd and Another v Moonisami and Another ,14 the Supreme
Court of Appeal (SCA) held that possession is ‘(m)ost commonly defined as
the combination of a factual situation and of a mental state consisting in the
factual control or detention of a thing ( corpus) coupled with the will to
possess the thing ( animus possidendi )’. Quasi possession refers to
possession of some incorporeal rights by virtue of using or exercising them
in relation to landed property such as servitudes (rights of way, access, etc.)
and rights of use.15
30. The party alleging dispossession must show that its use of the property in
question was open, peaceful, undisturbed (i.e. without having to ask for
permission, or being subject to control/interference) up to the moment of the
alleged spoliation. 16 Having established possession/ quasi possession,
deprivation (e.g. locking gates, blocking a road, erecting an obstruction)
must be wrongful/unlawful.
31. Possession is an important juristic fact because it has legal consequences,
one of which is that the party dispossessed is afforded the remedy of the
mandament in addition to remedies such as an interdict or a possessory
action.17
13 Badenhorst et al Silberberg and Schoeman’s The Law of property 6 ed (2019) LexisNexis at 314.
See also Northern Cape High School v Hansen Elite Wellness (Pty) Ltd and Another (155/2025)
[2025] ZANCHC 117 (28 November 2025) para 35.
14 2021 (5) SA 61 (SCA) para 5.
15 Kwamanzi Investments (Pty) Ltd v Jacob Jacobus Haasbroek and Others (5061/2025) [2025]
ZAFSHC 332 para 13.
16 Ibid.
ZAFSHC 332 para 13.
16 Ibid.
17 Shoprite Checkers Ltd v Pangbourne Properties (Pty) Ltd 1994 (1) SA 616 (W) at 619E-F.
9
32. In Kwamanzi Investments (Pty) Ltd v Jacob Jacobus Haasbroek and
Others,18 the Court affirmed that the right to use a road or route is included in
the concept of quasi possession, and that locking gates across such a route
can constitute spoliation. It stated:
‘In a case involving a public road servitude or right of way and access, if the user
has been using the road or servitude openly, peacefully, without disturbance, and
that use amounts to quasi possession, then an unlawful obstruction or interruption
could give rise to a mandament van spolie.
Given the above, if someone was using a route as a right of way (servitude) in an
undisturbed manner, without asking permission, that use can amount to quasi
possession of that route. The relevant test is whether the use was peaceful,
undisturbed, and the route was exercised as right of use, not a mere license or a
contract.’
33. It is therefore trite law that , although the professed rights upon which the
mandament is premised need not be proven in spoliation proceedings; the
nature of the rights must be established to determine the appropriateness or
applicability of a spoliation remedy.19
34. In First Rand Ltd t/a Rand Merchant Bank and Another v Scholtz NO and
Others20, the SCA confirmed that the mandament van spoli e is not the
appropriate remedy where contractual rights are in dispute, or where specific
performance of contractual obligations is claimed. Its purpose is the
protection of possession or quasi possession of certain rights.
35. Similarly, the SCA held in Telkom SA Ltd v Xsinet (Pty) Ltd 21 where an order
was sought essentially to compel specific performance of a contractual right
to resolve a contractual dispute, that the mandament is not available.22
18 Supra fn 15 paras 19 and 20.
19 First Rand Ltd t/a Rand Merchant Bank and Another v Scholtz NO and Others 2008 (2) SA 503
(SCA) para 13; see also Dotcom Trading 849 CC V Rand Water (16980/15) [2015] ZAGPPHC 166
para 16.
para 16.
20 First Rand Ltd t/a Rand Merchant Bank and Another v Scholtz NO and Others (Supra).
21 2003 (5) SA 309 (SCA) para 14.
22 See also ATM Solution v Okru Handelaars CC 2009 (4) SA 337 (SCA) para 2.
10
36. Finally, Gilbert AJ in Merveille IMP and EXP (Pty) Limited and Others v
Apple INC and Others 23 also explained the applicable standard of proof in
spoliation proceedings as follows:
‘Greenberg JA in what is perhaps the locus classicus of Nienaber v Stuckey agreed
as to the level of the proof required:
“Although a spoliation order does not decide what, apart from possession, the rights of
the parties to the property spoliated were before the act of spoliation and merely orders
that the status quo be restored, it is to that extent a final order and the same amount of
proof is required as for the granting of a final interdict, and not of a temporary interdict.”’
What this means is that if there are two bona fide but conflicting factual versions,
the respondent’s version is effectively to be preferred in terms of the usual Plascon-
Evans approach.’
Analysis
37. In its founding affidavit, the applicant at paragraphs 60.1 and 60.2 makes the
following averments:
‘60.1. The provisions of the Lease as cited above confer on the applicant (and all
of its contractors, subcontractors and invitees) an unequivocal,
“unrestricted” right of ingress and egress to the Lease Area for purposes of
constructing, operating and maintaining the Energy Facility. In parallel, the
Servitude grants the applicant a perpetual real right to traverse the existing
gravel road and any gates on the Property. These rights are not contingent
on the respondents’ precarious consent and arbitrarily exercised review on
a day-to-day basis and are enforceable irrespective and the applicant has
(at the very least) a prima facie right in accordance with the Lease and the
Servitude;
60.2. By padlocking the Gate on 2 August 2025 and subsequently re -imposing
restrictions from 10 September 2025 notwithstanding assurances given on
8 September 2025 and the unlocking on 9 September 2025, the
respondents are persistently and deliberately violating the applicant ’s
contractual and servitudal rights.’
contractual and servitudal rights.’
23 Supra fn 9 paras 32-33.
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38. It is clear from the papers that the applicant has approached this Court to
enforce rights that it has in terms of the lease agreement which it concluded
with the respondents . The applicant is seeking specific performance based
on the rights and obligations in terms of the lease agreement. However, it
cannot be said that the applicant is seeking to enforce personal rights in the
same sense as in Telkom SA Ltd v Xsinet (Pty) Ltd ,24 for example. This is
because in casu the notarial lease agreement and the servitude also give
rise to real limited rights more than mere personal rights.
39. On the other hand, t he mere fact that the applicant was granted permission
to use the private gate from time to time does not amount to undisturbed
quasi possession. According to the applicant, it had such possession from
April 2025, it used the gate during the daytime and the gate would be closed
and secured in the evenings. On this version alone, it is clear that the
applicant never had twenty-four-hour vehicular access through the gate as
the gate was not kept unlocked during all hours of the day . Thus, I am of the
view that the applicant did not exercise free and unfettered use of and
access through the gate.
40. According to the minutes of a meeting held on 26 August 2025, the purpose
of th at meeting between the applicant’s representatives and the second
respondent was to “negotiate access to PV1 through the farmer’s private
gate”. The applicant avers that negotiation was only necessary because the
respondents refused to grant access on the terms agreed to in the lease .
This submission does not take the applicant’s case any further. The fact that
access through the private gate had to be negotiated in itself is
demonstrative that the applicant did not have free and unfettered use of and
access through to the gate . For the same reason, the applicant’ s averment
that the rights of access are not limited to a single route or gate and that it
that the rights of access are not limited to a single route or gate and that it
requires unfettered access as and when needed for the project is unhelpful.
41. In these circumstances, I am of the view that the applicant failed to prove
that it had had peaceful and undisturbed possession of the property at the
24 Supra fn 21.
12
relevant time. Consequently, the applicant failed to prove the requirements
for the mandament van spolie and the application falls to be dismissed.
COSTS
42. The respondents have successfully opposed this application. There is no
reason why costs should not follow the result.
43. As a result, I make the following order:
1. The application is dismissed with costs, which costs shall include
counsel’s costs on scale B.
_______________________
T TYUTHUZA
ACTING JUDGE, HIGH COURT
NORTHERN CAPE DIVISION
Appearances
On behalf of Applicant: Adv AJ Daniels SC
Instructed by: Bowman Gilfillan Inc.
c/o Elliott Maris
On behalf of Respondents: Adv RB Engela
Instructed by: Vanderspuy Cape Inc.
c/o Haarhoffs Attorneys