REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REPORTABLE: NO
(2) OF INTERESTTO OTHER JUDGES: NO
(3)
30 March 2026
DATE
CAROLYN RUTH MARTIN
TUTTO VINO (PTY) LTD
and
CLUB SOCIALE ITALIANO DI PRETORIA NPC
JUDGMENT
Case No : 053528-2026
FIRST APPLICANT
SECOND APPLICANT
RESPONDENT
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[1] This is an application of spoliation for urgent relief to restore the agreement and
operational arrangement between the parties.
[2] The relationship between the Applicants and the Respondent is predicated upon
a contract and an operational arrangement. In terms of the agreement and
operational arrangements the parties had certain rights and responsibilities. The
Applicants are required to pay 5% of their turnover to the Respondent. Further,
the Applicants are entitled to order meals prepared by the Respondent's kitchen
for their patrons through a constant and uninterrupted point of sale system, a
sales code/point and access card to place orders.
[3] From at least 2019 until the 04th of March 2026, the Applicants enjoyed free and
undisturbed possession of the right to use the Respondent's point of sale system
and the Applicants' order code to order food from the Respondent's kitchen. An
implied term of the agreement is that the Respondent cannot act unilaterally and
take the law into its own hands by removing operational arrangements making it
impossible for the Applicant to trade and do business as usual. As a result, the
Applicant alleges that she is being forced out of business and cannot fully service
customers, resulting in a loss of revenue and customers.
[4] The Applicants admit that there exist other disputes with the Respondent.
However, the Applicant was in peaceful and undisturbed possession until the
Respondent opted to resort to self-help by removing the Applicants' ability to
order food for its customers from the Respondent's kitchen by means of its point
of-sale system and order code.
[5] The Respondent took this drastic action in the absence of a court order
authorizing it to take such action in an effort to cripple the Applicants' business -
resulting in irreparable harm and forcing them to vacate the oremises witho ut a
valid court order.
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[6] The Respondent avers that the Applicants are able to order food from the
Respondent's kitchen and therefore has not breached any operational
arrangement. However, it is not in dispute that the Respondent has taken the
access card and denied the sales code/point as set out in paragraph 49 of the
Founding Affidavit; -
"The Respondent's manager attended to the restaurant on 4 March 2026, after
I had already left for the day, and instructed the staff to hand over the sales card
and that no further orders were to be processed. "
[7] The Respondent further relies on Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5)
SA 309 (SCA); that the right to place orders is a personal right.
[8] The facts of the current matter materially differ with those set out in Xsinet . In
the present matter the Respondent's physical removal of the sales/ access card
and instruction to halt orders amounted to a direct interference with the
Applicants' possession and operational control justifying a spoliation order.
[9} By contrast in Xsinet there was no physical dispossession or interference with
property, but merely a disruption of service which the court found insufficient in
that case to constitute possession for purposes of spoliation.
(1 O] As a result, I am satisfied that on a balance of probabilities a case has been
made out for spoliation and direct that the status quo be restored.
[11] Court Order:
[11 .1] This matter is enrolled as urgent;
[11 .2] The Respondent is ordered to:
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[11 .2.1) Immediately return to the Applicants the sales card;
[11.2.2] Immediately restore the operational arrangements which
existed prior to 5 March 2026 between the Applicants and
the Respondent;
[11 .2.3.] Restore the Applicants' ability to place and process food
orders through the Respondent's kitchen and point-of-sale
system, including the use of the Tutto Vino sales code;
[11.2.4] Permit the preparation and serving of meals from the
Respondent's kitchen to patrons of the Tutto Vino
establishment in the same manner as occurred prior to
5 March 2026.
[11 .3] The Respondent is ordered to pay the costs of this application on a party
and party basis on scale B for Counsel's fees.
Hearing: 25 March 2026
Judgment: 25 March 2026
R. FRANICIS-SUBBIAH
Judge of the Gauteng High court: Pretoria
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Appearances
For Applicant:
Instructed by:
For Respondent :
Instructed by:
Adv . WC Carstens
Martin Attorneys
Adv EG Malherbe
LNP Beyond Legal
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