IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case No: A290/2025
In the matter between:
JOHANNES VAN DER WESTHUIZEN Appellant
and
KOOS BOOYSEN Respondent
Coram: DA SILVA SALIE, J et MAYOSI, AJ
Heard on: 6 March 2026
Delivered on: 6 March 2026
Summary:
Civil procedure – Appealability – Mandament van spolie – Interim ex parte order
restoring access to immovable property pending return day of rule nisi – Appeal
noted before adjudication on return-day – Whether order appealable – Application of
Zweni v Minister of Law and Order 1993 (1) SA 523 (A) – Order expressly interim,
revisitable and susceptible to discharge or variation – No final determination of rights
by court a quo – Immediate restoration of access and authorisation of sheriff to
secure premises constitute practical consequences but not legal finality – Interests of
justice not warranting exceptional intervention – Policy against fragmented
interlocutory appeals reaffirmed – Appeal dismissed as incompetent for want of
jurisdiction – Ordinary costs ordered.
ORDER
1. The appeal is dismissed as incompetent for want of jurisdiction.
2. The appellant is ordered to pay the respondent’s costs of appeal.
3. The order of 23 October 2025 is herewith set aside and substituted
as follows:
(a) The applicant shall file his replying affidavit, if any, by Tuesday, 24 March
2026.
(b) The rule is extended for hearing on Monday, 30 March 2026.
4. The Chief Registrar of this Court is directed to serve a copy of this order (by
email) within three (3) days of date hereof on the Clerk of the Civil Court,
Stellenbosch Magistrates’ Court. The Clerk is directed to set the matter
down on the motion court roll as ordered in 3 above.
JUDGMENT
DA SILVA SALIE, J:
Introduction
[1] This is an appeal against an interim spoliation order granted by the
Stellenbosch Magistrates’ Court on 23 September 2025 on an urgent ex parte basis.
The order restored the respondent’s immediate access to immovable property
pending the return day of a rule nisi.
[2] On appeal, the appellant raises three (3) grounds of appeal:
(a) There was no basis for hearing the application as an ex parte one.
(b) There were no grounds for urgency, and the application should not
have
been heard on an urgent basis.
(c) The court a quo granted the spoliation order in circumstances where
the
respondent had not made out a case for such order.
Historical background and spoliation application:
[3] The respondent was employed on the Bonfoi Farm, Stellenbosch for the past
forty (40) years. He submitted that as part of his employment benefit, the appellant
had provided him with housing on the farm. He lived at the property with his late
spouse and daughter. During his hospitalization due to a serious medical condition,
his daughter moved in with her boyfriend. After being discharged from hospital, he
had been staying with relatives temporarily to facilitate his hospital follow -up
consultations and rehabilitation therapy sessions. When he returned to the house in
June 2025, he found that the locks of the premises have been changed. Upon
further investigation, he was advised by the appellant that he will not be allowed
access to the property. He pro ceeded to launch an ex parte application on 22
September 2025, seeking that the matter be heard as one of urgency to restore his
free and undisturbed access to his house on the farm immediately upon service on
the appellant by the sheriff of the interim or der. The relief was granted on 23
September 2025 as an interim order, pending the return date. The appellant was
called upon to give reasons why the order should not be made final.
[4] On 23 September 2025, the respondent’s attorney sent an email to th e
appellant attaching the spoliation order. The correspondence also requested that
the respondent’s attorney ensure that the house be unlocked for the respondent so
as to avoid further sheriff’s fees or costs. Notwithstanding the fact that the order was
interim in nature, the appellant filed the Notice of Appeal two (2) days later, on 25
September 2025, together with security for costs and a request for the court to
provide further reasons. The answering affidavit was filed on 20 October 2025 with a
supplementary affidavit filed by the appellant on 22 October 2025. On the return
day, 23 October 2025, the court a quo postponed the matter sine die pending the
outcome of this appeal.
Submissions on appeal:
[5] The appellant contends on appeal that the app lication was incorrectly
entertained as an ex parte matter as the founding affidavit does not deal with the
reasons why the application is brought on an ex parte basis nor is any allegation
made that notice would defeat the object of the application. Furt hermore, the
affidavit is alleged not to address urgency. T he respondent indicated that he was
sleeping over at the homes of family members, he could not access his belongings in
sleeping over at the homes of family members, he could not access his belongings in
the house and that he needed rest due to his medical circumstances. The appellant
submits that whilst the respondent claimed that he was evicted without due process,
the respondent had known about the spoliation for three (3) months before he took
action by way of th e spoliation application. The appellant also submitted that the
wrong party was cited as the property is owned by Bonfoi Wynlandgoed CC and
opposed the merits of the relief claimed.
[6] In short, the appellant submits that this Court , on appeal, must find that the
application should not have been entertained in the manner that it was, both ex parte
and urgent, and also find that the spoliation order was not correctly granted on the
merits.
[7] The respondent opposes the appeal and raises a point in limine that the order
is purely interim and not appealable. For the respondent it is submitted that as the
order is not final , the effect is susceptible to alteration by the court of first instance.
Interim relief by its very nature is de signed to operate quickly, should be revisited by
the court a quo and prevent irreparable harm pending final determination. The
spoliation order granted herein preserves a temporary position and an appeal
undermines the purpose of interim relief.
[8] In my view, the in limine issue regarding appealability must be determined
first, for if successful, it would be dispositive of the appeal.
Applicable legal principles:
[9] It is trite that appeals ordinarily lie only against final decisions.
[10] In Zweni v Minister of Law and Order 1993 (1) SA 523 (A) , the Appellate
Division held that an order is generally appealable if it:
(a) Is final in effect and not susceptible to alteration by the court of first
instance.
(b) Is definitive of the rights of the parties; and
(c) Disposes of at least a substantial portion of the relief claimed.
[11] Our courts have repeatedly emphasised the policy against piecemeal
appeals, particularly in relation to interim relief designed to operate pending
reconsideration on a return day. Appeals are generally impermissible unless
exceptional circumstances exist w hich warrant consideration of the appeal in the
interests of justice.
[12] However, the “interests of justice” approach does not render every
interlocutory order appealable. Exceptional circumstances must be shown.
Application of the law to these facts:
[13] The order appealed against was granted ex parte and expressly operates
pending the return day of a rule nisi, by restoring the respondent’s possession of the
property. However, this is not a final order and by its nature and structure, it is
susceptible to discharge, variation or confirmation on the return day once the
affected party is heard. The interim order is not a final pronouncement that the
respondent had been in peaceful and undisturbed possession of the property and
that he had been dispossessed.
[14] The appellant contends that the order had immediate practical consequences,
including the restoration of access to the property. The appellant’s factual disputes
of the claims made by the respondent in support of spoliation and the opposition
thereto is h owever sub judice and must be determined by the court a quo so as to
make a final determination of the parties’ rights and dispose of the final relief.
Likewise, the court a quo would consider the submissions by the appellant whether
sufficient facts were correctly placed before the court to warrant granting the order ex
parte, as it did . On that basis alone the interim order may be discharged and set
aside if so determined by the court a quo. That is , however, not the jurisdiction of
this Court.
[15] It must be born in mind that interim interdicts and spoliation orders commonly
have immediate practical effect. That feature does not, without more, convert such
relief into a final, appealable order. The retur n-day procedure provides the built -in
mechanism through which the interim order may be challenged, discharged or
varied.
[16] The effect of the interim order is that the appellant would be required to give
possession to the respondent of the home he had been resident in, on the farm , as
an employee. This is , however, not a case where the interim order produces
irreversible consequences incapable of correction by the court a quo, nor one where
immediate appellate intervention is required to prevent irreparable injustice.
[17] To entertain the appeal at this stage would undermine the established
principle against fragmented interlocutory appeals. The interests of justice do not
justify exceptional appealability in the present circumstances. I am of the vi ew that
the order is interlocutory in nature and not appealable.
[18] At the time the appeal was noted, no determination on the return day had
been made. Instead, it was postponed by agreement sine die pending this appeal.
Accordingly, there has been no final adjudication of rights by the court a quo.
[19] The postponement sine die on 23 October 2025 was a misdirection in that an
interim order cannot exist without a return day. Given my conclusion that the matter
is not capable of appeal , it would be appropriate for the court a quo’s postponement
sine die of the return day to be set aside and substituted with a provision that the
interim order be heard by the court a quo on a specified date . In the circumstances,
the order below will provide for the further conduct of the matter.
Costs:
[20] The respondent seeks punitive costs on the basis that the appeal is
premature. Whilst I find that the appeal is incompetent, I am not persuaded that the
appellant’s conduct warrants a departure from the ordinary rule as to costs.
Accordingly, there is no basis for an attorney-and-client costs order.
Order:
[21] For the reasons set out herein, the appeal must fail and, in the premise s, I
order as follows:
[21.1] The appeal is dismissed as incompetent for want of jurisdiction.
[21.2] The appellant is ordered to pay the respondent’s costs of appeal.
[21.3] The order of 23 October 2025 is herewith set aside and substituted as
follows:
(a) The applicant shall file his replying affidavit, if any, by Tuesday,
24 March 2026.
(b) The rule is extended for hearing on Monday, 30 March 2026.
[21.4] The Chief Registrar of this Court is directed to serve a copy of this
order (by email) within three (3) days of date hereof on the Clerk of the Civil
Court, Stellenbosch Magistrates’ Court . The Clerk is directed to set the
matter down on the motion court roll as ordered in 21.3 above.
_____________________________
G. DA SILVA SALIE
JUDGE OF THE HIGH COURT
WESTERN CAPE DIVISION
I AGREE:
_____________________________
N. MAYOSI
ACTING JUDGE OF THE HIGH
COURT
WESTERN CAPE DIVISION
Appearances
For Appellant: Adv. J Williams
Instructed by: Cluver Markotter Inc.
For Respondent: Adv. D Filand
Instructed by: September & Associates