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2026
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[2026] ZAFSHC 235
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Whitten v Oppermansgronde Community Property Association and Another (486/2025) [2026] ZAFSHC 235 (10 April 2026)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: 486/2025
In
the matter between
WALMA
URSULA WHITTEN
APPLICANT
And
OPPERMANSGRONDE
COMMUNAL PROPERTY
ASSOCIATION
[Registration
No: CPA 05/0792/A]
FIRST
RESPONDENT
LEON
PATRICK CORNELLISSEN
SECOND
RESPONDENT
Neutral
citation:
Whitten v Oppermansgronde
Community Property Association and Another
(486/2025)
[2026] ZAFSHC 235
(10 April 2026)
Coram:
MOLITSOANE
J
Heard:
4
September 2025
Delivered:
10 APRIL 2026
Summary:
Mandament van spolie – motion proceedings –
dispute of fact – principles restated.
ORDER
The application is
dismissed with costs which include the costs of counsel on scale B.
JUDGMENT
Molitsoane J
[1]
The applicant seeks an order against the respondents for the
restoration of the applicant’s
alleged possession of a property
known as Camp 78, situated on the land known as Oppermansgronde,
Jacobsdal. The application is
based on the
mandament van spolie.
The applicant alleges that she was in peaceful and undisturbed
possession of Camp 78. What necessitated the application for the
spoliation is that the applicant alleges that the respondents erected
a fence on Camp 78 and thus diminished the occupation of her
possession. The respondents deny that the applicant was spoliated of
the land and further oppose the application on the basis that
there
is a dispute of fact on the issue of the occupation or possession of
the land alleged to be spoliated. On this basis, the
respondents
contend that the relief sought in any event cannot be granted in
motion proceedings.
[2]
Oppermansgronde, the land on which Camp 78 is situated, is over 34
000 hectares in
extent. It is comprised of four farms and was
transferred to the first respondent (the OCPA) on 10 October 2006.
Before the registration
of transfer, the land was divided into more
or less 160 camps which are 150 to 200 hectares in size. Camp 78 is
about 160 hectares
in extent. It is common cause that members
of the community occupy and farm or use divided camps including Camp
78 as if
they were owners thereof.
[3]
It is the applicant’s case that she took possession of Camp 78
after the demise
of her parents and had been in peaceful and
undisturbed possession thereof since. She farms on the camp, although
she does not
essentially reside there. She alleges that on 16
December 2024 she was advised by her son that there was a fence
erected across
Camp 78 without her knowledge or consent. Suspecting
that the second respondent might have erected the fence, she voiced
her suspicion
by sending him a WhatsApp message. The essence of the
message was that the second respondent had erected a fence that
traversed
her camp.
[4]
In response, the second respondent also sent a WhatsApp message to
the applicant and
stated that the applicant should take the matter up
with the OCPA as the property was awarded to him in terms of a
contract. The
applicant then instructed her attorneys of record who
communicated the sentiments of the applicant to the respondents. On
15
th
January 2025 the respondents responded to the
allegations of spoliation by the applicant and said that the
applicant had no legal
right to the property; further, that the
second respondent had a legal rental agreement with a CPA since 2020
and; lastly that
it was the second respondent who actually was in
peaceful and undisturbed possession of camp 78, presumably on the
basis of the
conclusion of the alleged rental agreement
[5]
The applicant contends that the erection of the camp has diminished
the size of her camp and effectively
prevented her livestock access
to water and grazing land which is fenced on the portion of the camp
allegedly spoliated.
[6]
The respondents deny that they erected a fence across Camp 78. They
accordingly deny that the
applicant was in peaceful and undisturbed
possession of the Camp 78. The second respondent specifically points
out that he merely
effected repairs to a certain portion of the fence
forming part of the boundary. The respondents instructed Mr Coen
Fraenkel, a
land surveyor, to inspect the property and to ascertain
if any of the fences were erected over the property of the applicant’
as alleged by her. Following the investigation, Mr Fraenkel submitted
a report and concluded that the beacons as he found on 4
March 2025,
of Portion 137(Camp 78) of the farm Oppermansgronde No 414, as
proposed on General Plan L.G. No 2397/2007, were the
same as those he
found in his previous survey in 2007. In his confirmatory affidavit,
he confirmed that no fence had been erected
over the boundary lines
of the property. He also confirmed that he could not find any
exceedance of the property.
[7]
The applicant takes issue with the report of Mr Fraenkel. According
to her, the second respondent
might have erected a fence on the
boundary of portion 137 but she asserts that she only became aware of
this portion of the land
when she read the opposing affidavit of the
respondents. She is adamant that the fence that forms the subject of
this dispute runs
across Camp 78. She asserts that the southern part
of portion 137 as depicted on the General Plan attached to the report
of Mr
Fraenkel does not form part of Camp 78. She references the
presence of a pivot which appears on the General Plan as being part
of portion 137 and asserts that Camp 78 has no such equipment. In my
view, it appears that according to her, portion 137 and Camp
78 are
two different parts of land and consequently the survey of Mr
Fraenkel was not done on Camp 78.
[8]
Because there’s a dispute about whether portion 137 and Camp 78
are the same things, the
respondents sought permission to file a
further fourth affidavit. The acceptance of a further affidavit is in
the discretion of
the court. The issues raised in the replying
affidavit necessitated some form of explanation from the respondents
to enable this
court to have the full information for the purposes of
adjudication of this dispute. I accordingly ruled that the affidavit
ought
to be admitted as part of the record.
[9]
The following issues call for determination:
(a) whether there is a
dispute of fact that cannot be resolved in these motion proceedings,
if so, whether the application must
be referred for oral evidence;
and
(b) if not, whether the
applicant has satisfied the requirements for a
mandament van
spolie.
[10]
Motion proceedings or application proceedings are designed to deal
with legal issues based on common cause
facts.
[1]
Prior to the decision of
National
Director of Public Prosecutions v Zuma
,
[2]
the court in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[3]
explained this rule as follows:
‘
It
is correct that, where in proceedings on notice of motion disputes of
fact have arisen on the affidavits, a final order, whether
it be an
interdict or some other form of relief, may be granted if those facts
averred in the applicant's affidavits which have
been admitted by the
respondent, together with the facts alleged by the respondent,
justify such an order.’
[11]
In
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[4]
the court further held that ‘an applicant who seeks final
relief on motion must in the event of conflict, accept the version
set up by his opponent unless the latter’s allegations are, in
the opinion of the court, not such as to raise a real, genuine
or
bona
fide
dispute of fact or are so far-fetched or clearly untenable that the
court is justified in rejecting them merely on the papers.’
[12]
The applicant seeks final relief in these proceedings. When she
contacted the second respondent about the
erected fence, she informed
him that the fence had been erected on her property. The second
respondent immediately disputed that
the erection of the fence was on
her property but contended that it was on the property, he leased
from the OCPA. He also referred
the applicant to the OCPA for further
clarity. In a letter dated 8 January 2025, the applicant’s
attorneys of record addressed
a letter to the second respondent in
which the following was said:
‘
I
understand that you and all your workers or agents entered the
mentioned property (Camp 78) and erected a fence thereon. It is
also
my instructions that it is your clear intention to take possession of
the property in that you also wrote a WhatsApp message
of which the
content indicates that the property was awarded (toegeken) to you by
the OCPA. I understand that OCPA means the Oppermansgronde
Communal
Property Association.’
[13]
The initial WhatsApp message and the response to the letter of the
applicant’s attorneys ought to have
alerted the applicant that
there was a material dispute of fact looming in the horizon. The
respondents through their attorney’s
respondent to the letter
of the applicant averred as follows:
‘
We
confirm that it is our client’s instructions on behalf of Mr
Cornelissen to inform your client that she has no legal right
onset
property. As our client, Mr Cornelissen has a legal rental agreement
with the OCPA since 2020
and therefore
Mr Cornelissen enjoyed peaceful and undisturbed possession of sad
property since last mentioned date
.’
(Emphasis added.)
[14] In
my view, there is a clear indication that there is a serious dispute
about who is in occupation of the
land in dispute. This dispute was
clearly discernable even before the application was launched. The
applicant should have foreseen
that were she to institute the
application, there was a strong likelihood that a serious dispute
would arise. This notwithstanding,
she persisted with motion
proceedings. As expected, after the application was served, the
respondent raised the issue of the occupation
of the land in dispute.
The respondent tendered the evidence of a Mr. Fraenkel whose report
indicated that portion 137 and Camp
178 is the same thing. This is
the camp, on the version of the respondents, which is being occupied
by the second respondent. Interestingly,
it does not appear to me
that the applicant does not deny the existence of portion 137 but her
concern is simply that she was unaware
of it. This dispute about
which camp the second respondent is occupying and had erected a fence
is central to the adjudication
of an application for mandament van
spolie. If the applicant and the second respondent lay claim to their
respective occupation,
the better court to resolve that dispute would
best be by way of a trial.
[15] On
this basis alone, the applicant ought not to have proceeded by way of
motion proceedings. When the applicant
realized during the hearing
that the dispute of fact was a reality, her counsel sought this court
to invoke uniform rule 6(5)
(g)
. This rule provides:
‘
Where
an application cannot properly be decided on affidavit the court may
dismiss the application or make such order as it deems
fit with a
view to ensuring a just an expeditious decision. In particular, but
without affecting the generality of the a foregoing,
it may direct
that oral evidence be heard on specified issues with a view to
resolving any dispute of fact and to that end may
order any deponent
to appear personally or grant leave for such deponent or any other
person to be subpoenaed to appear and be
examined and cross examined
as a witness or it may refer the matter to trial with appropriate
directions as to pleadings or definition
of issues, or otherwise
.’
[16] It
is indeed so that rule 6(5)
(g)
grants the court seized with an
application where a dispute of fact arises a discretion to dismiss or
refer the matter for oral
evidence. The evidence before me indicates
that the applicant was aware that there was a likelihood of a dispute
arising about
the occupation of the land in question. That should
have prompted her to proceed by way of an action. She cannot expect
the court
to come to her assistance where clearly, she was aware that
the central issue in her application could not be resolved on papers,
especially in view of the fact that she sought final relief in these
proceedings.
[17]
In her notice of motion, or at least in her founding affidavit, or at
the outset of these proceedings, notwithstanding
her knowledge of the
dispute about the occupation, she did not ask for referral as an
alternative to the main relief. In
Law
Society, Northern Provinces v Mogami
[5]
the court stated:
‘
An
application for the hearing of oral evidence must, as a rule, be made
in limine
and not once it becomes clear that the applicant is failing to
convince the court on the papers or on appeal. The circumstances
must
be exceptional before a court will permit an applicant to apply in
the alternative for the matter to be referred to evidence
shoot the
main argument fail.’
[18] It
became apparent that the dispute could not be resolved on the
affidavits and that oral evidence was necessary.
I am unable to agree
with the applicant that the applicantion be referred for oral
evidence as the dispute was clearly crystalized
before the
application was launched. The applicantion must accordingly fail.
[19]
The award of costs is in the discretion of the court. I,
however, wish to refer the parties to the
case of
Wiliams
v Harris
[6]
in which the court made the following remarks:
‘
Who
chooses to ride a tiger will find it difficult to dismount it
unscathed. Much the same can be said of the decision of the parties
to this appeal to indulge in litigation rather than settle their
differences in a less acrimonious and costly way. A spat between
neighbors about a boundary line, the source of water allegedly
finding its way onto the property of one of them, and some
overhanging
ivy has generated a record on appeal of 501 pages. A
petition in which leave to appeal was sought from the Chief Justice
generated
a further 400 pages. A further petition in which to leave
to place further evidence before the court was sought has spawned
another
378 pages. All this expense has been incurred in an attempt
to resolve by litigation issues which would have lent themselves to
relatively easy resolution if the parties had at the outset joined in
appointing and allowing appropriate independent experts to
do on both
properties what they regarded as necessary in order to arrive at the
truth. Instead, they have fought a long and costly
battle in the
courts. It is not possible to say who has to blame for no settlement
of the dispute having been reached. However,
it is now too late for
tears.
’
I hold that the applicant
was successful in defending the application and is entitled to her
costs, although the resistance was
granted on the procedural aspect
of the application.
[20]
I accordingly order as follows:
The application is
dismissed with costs which include the costs of counsel on scale B.
PE
MOLITSOANE
JUDGE
OF THE HIGH COURT
Appearances
For
the applicant:
JHD
Bloem
Instructed
by:
Spangenberg
Zietaman & Bloem
Bloemfontein
For
the respondents:
WJ
Groenewald
Instructed
by:
Kramer
Weimann
Bloemfontein
[1]
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
; 2009 (2) 277 (SCA) 290 para 26.
[2]
Ibid.
[3]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634H-I.
[4]
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) para 12.
[5]
Law
Society, Northern Provinces v Mogami and Others
[2009] 107;
2010 (1) SA 186
(SCA).2020 (1) SA 186 (SCA) para 23.
[6]
Wiliams
v Harris
[1998] ZASCA 51
;
1998 (3) SA 970
(SCA)