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
EASTERN CAPE DIVISION: BHISHO
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES:
YES
DATE: 24 MARCH 2026_________
SIGNATURE: __
CASE NUMBER: 2025-247025
In the matter between:
GWIBA GQOBO Applicant
And
LSB GROUP Respondent
______________________________________________________________________
Summary: Rule Nisi – Rule 6(12) - Uniform of Rules of Court - urgency, hearsay
evidence – Law of Evidence Amendment Act 45 of 1988 mandament van spolie – lawful
and undisturbed possession –. Rule Nisi confirmed and application granted.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
NTLAMA-MAKHANYA AJ
[1] On the 17th of December 2025, an application for an interdict was instituted on an
urgent basis in terms of Rule 6(12) of the Uniform Rules of Court against the
respondent relating to his unlawful dispossession of the Tata Truck that belong to
the applicant. Pursuant to those proceedings, a rule nisi was granted against the
respondent and for him to show cause on the 29 th of January 2026 why it should
not be made final. The applicant was legally represented whilst the respondent
self-represented himself.
[2] In this application, the following orders were sought and prayed for by the
applicant:
(i) Confirmation of the rule nisi that was granted on the 17 th of Dember
2025.
(ii) The declaration of the dispossession of the applicant’s motor
vehicle, [namely] a Tata Truck beari ng registration letters and
numbers K[...] to be unlawful.
(iii) ensure that the applicant has full and uninterrupted access to the
Truck without any further interruptions; and
(iv) Declare that the respondent pays the costs of this application
because he is its sole cause.
[3] This application was opposed by the respondent and disputed the (i) urgency of
the application, (ii) it was based on hearsay evidence and (iii) mandamus van
spolie were not applicable in these proceedings.
BACKGROUND
[4] On the 17th of December 2025, the applicant obtained an interim interdict against
the respondent wherein, inter alia, he was interdicted from unlawfully depriving
the applicant of the lawful possession of the Tata Truck model LPT 1518 with
license registration letters and K[...] (Truck). Respondent is a commercial entity
engaged in the business of motor vehicle sales. The parties, therefore, entered
into an oral agreement for the sale of the said Truck on the 04 th of October 2025
at an amount of R180 000.00. The terms of the agreement were that the
applicant will pay a 50% deposit in the amount of R80 000.00. The rest of the
outstanding balance of R100 000.00 was to be settled within calendar month
from the date of initial payment. On delivery of the said Truck on the 17 th of
October 2025, the applicant took its possession. However, the Truck turned out
to have mechanical problems and the applicant attended the latter with his own
money. Further, the crux of this is sue came on the 10 th of December 2025 when
the Truck was driven by Olwethu Mntwini (Driver) from Engcobo to East London.
On his way, it was intercepted by the respondent near Beacon Bay and took over
its possession. Thereafter, he informed the applicant th rough a WhatsApp
message that he took over the Truck from the Driver due to his failure to pay the
outstanding amount despite the constant demands. Several attempts and
exchange of messages to resolve the matter amicably proved fruitless, which led
to the institution of an urgent application with its consequent result of the order of
the rule nisi.
[5] This background is enough for identification of issues that are the subject of
dispute in this matter.
ISSUES
[6] This Court is to determine whether:
(i) The applicant was unlawfully deprived of the possession of the
Truck.
(ii) The respondent had unlawfully dispossessed the Truck from the
applicant.
(iii) Admissibility of hearsay evidence is justifiable.
(iv) Urgency in motion proceedings.
(v) The application of the principles of mandament van spolie.
[7] With these issues, the applicant raised a point in limine relating to Mr Biyana’s
legal status as the respondent’s representative in these proceedings. Let me
therefore address this issue before getting into the merits of this application.
Point in limine
[8] The point in limine sets the pathway for addressing issues that may negatively
impact the overall fairness of the trial. The applicant in this case submitted that
Mr Biyana did not have locus standi to institute these proceedings without the
notice or minutes authorizing him to act on his behalf. I must also state that Mr
Biyana is the sole Director of the LSB Group. I must also allay the concerns that
may arise relating to the cause of action, which in this instance, is the case for
the point in limine. It is settled that the cause of action must exist at the time of
the institution of proceedings. It is only in exceptional circumstances that it may
be considered after the case has been made against the respondent, suc h as in
response to answering, replying or heads of arguments. In this regard, Lamont J
in Pangbourne Properties Ltd v Your Life (Pty) Ltd1 who held:
“Causes of action which have arisen after the issue of summons have
been allowed to proceed where for example those causes of action are
joined to the existing ones in the same action. Amendments are allowed
without deciding the substantive issue. What is required is that the
pleadings contain a cause of action which in term contain a justiciable
issue after the amendment has been allowed. The authorities which have
allowed amendments entitling a plaintiff to prosecute an action which it did
not have at the time of institution of action given an indication of the
attitude of the Courts to the substantive issue. It is useful to have regard to
such cases for that reason,”2 (emphasis mine).
[9] At face value this might be viewed as a procedural irregularity that limits any
potential to beyond to establish the merits. I do acknowledge the significance of
adherence to rules, thus, Lowe J in Tshiki v Buffalo City Metro Municipality3 on an
appeal from the judgment of the Court a quo in Tshiki v Buffalo Metro
Municipality4, was critical of the latter Court for limiting itself to technicality. The
case involved th e de-registration of a company and its legal capacity to institute
proceedings whilst still deregistered. Whilst in that case the trial Judge failed to
consider the substance of the application, Lowe J saw no reason for not
addressing it. 5 This is the app roach in this case as well to go beyond the
technicalities that may limit the determination of the merits of the case.
1 [2013] 4 All SA 719 (GSJ).
2 Ibid paras 32-33.
3 [2018] ZAECGHC 122.
4 [2017] ZAECELLC.
5 Tshiki (note 3 above) paras 31, 39 and 41.
[10] Let me revert to the issue in question and situate the point in limine within the
context of the application of Rule 7(1) of the Uniform Rules of Court which
provide:
“Subject to the provisions of subrules (2) and (3) a power of attorney to act need
not be filed, but the authority of anyone acting on behalf of a party may, within 10
days after it has come to the notice of a party that such person is so acting, or
with the leave of the court on good cause shown at any time before judgment, be
disputed, whereafter such person may no longer act unless he satisfied the court
that he is authorized so to act, and to enable him to do so the court may
postpone the hearing of the action or application.”
[11] In this case, Mr Biyana, as the sole director of the respondent raises the question
whether he has legal capacity to file affi davits and institute these proceedings? It
is settled that a deponent to the affidavit and institution of proceedings on behalf
of the company must be authorized by the Board of Directors. It is not for this
Court to determine how the internal processes of the respective companies
should be undertaken. Of importance in this case, is whether a confirmatory
affidavit was submitted as evidence of such authority being bestowed on him. I
am also raising this matter and emphasizing with an open mind that sole
directorships are not thrown out of the framework of the law. I am also not to
articulate any reason for establishing facts that could have resulted in the status
of such companies or corporations. Since Mr Biyana’s legal standing was
disputed by the applican t, thus, during arguments, he dismissed the point in
limine as the legal basis because of his status as the sole director of LSB Group.
[12] In this matter, the determination of the rationality of the point in limine fits within
the context of the application of Rule 7(1) as noted above. The application of the
said Rule was contextualized by Streicher JA in Ganes v Telkom Namibia Ltd 6
said Rule was contextualized by Streicher JA in Ganes v Telkom Namibia Ltd 6
6 2003 (4) SA 615 (SCA).
which was cited with approval by Kganyago J in Tshidiso Business Enterprise CC
v Standard Bank of SA7 who held:
“In the present case the proceedings were instituted and prosecuted by
[Mr Biyana] purporting to act on behalf of the respondent. … [He] stated
that he was a … director of the [LSB Group] and have legal capacity to
duly represent the [LSB Group/ respondent]. That statement was
challenged by the [applicant]. It must, therefore, be accepted that the
institution of the proceedings were [not] duly authori zed. In any event, rule
7 provides a procedure to be followed by a [party] who wishes to
challenge the authority of an attorney who instituted motion proceedings
on behalf of an applicant. The [applicant availed himself of the procedures
provided in terms of Rule 7(1).”8
[13] Streicher JA settled this matter and confirmed the essential requirements that are
needed to ensure compliance with the validly instructed authority to represent the
party in proceedings. However, this Rule is not to be interpreted in isolation of the
context within which this matter arose. It is my view, despite Mr Biyana’s sole
directorship of the LSB Group as the “commercial business”, he failed to meet
the requirements of Rule 7(1). His arguments therefore stand to be dismissed.
[14] The point in limine set the bar for this Court to determine the submissions of the
parties.
PARTIES SUBMISSIONS
Applicant
7 [2025] ZALMPPHC 5.
8 Ibid para 19.
[15] The applicant submitted that the respondent’s conduct of taking the Truck was
never part amongst other the conditions of their agreement. In addition, his
attempts and plea for the return of the truck were in vain. He was therefore left
with no other option than to institute these proceedings on an urgent basis. He
substantiated his submission and held that he was in lawful and peaceful
possession of the Truck until his deprivation by the respondent. It was therefore
wrongful and without consent that the respondent deprived him of his lawful
possession of the Truck. As the argument goes, the applicant submitted that this
Court is enjoined to show its discomfort towards the conduct of the respondent.
[16] The applicant further asserted that the deprivation of the lawful possession of the
Truck by the respondent had dire consequences for him including his Driver
(Olwethu). He argued that they depend on the Truck for living. The alleged
consent to the handing over of the Truck was based on a legitimate purpose that
the respondent will reimburse him for all the costs which were associated with
payments relating to th e fixing to the Truck’s mechanical problems. He further
contended that his success for a temporary relief on the 17 th of December 2025
served as a prima facie proof of the urgency of the matter which needed
confirmation in these proceedings.
Respondent
[17] The respondent submitted that he is the Managing Director of LSB Group. He
submitted that the order of the 17 th of December 2025 should be reconsidered
because the entire application was based on unconfirmed hearsay evidence that
was relayed by the Dri ver to the applicant. He submitted that such evidence was
inadmissible and should be disregarded. The Driver consented to the Truck being
taken and was never forced to hand over it. He sought to address the application
of section 3(1) of the Law of Evidenc e Amendment Act 45 of 1988. However,
of section 3(1) of the Law of Evidenc e Amendment Act 45 of 1988. However,
based on the discretion that bestowed on this Court, this issue will be addressed
below on the merits of this case. In sum, he submitted that this application is
defective because:
(i) The applicants’ own documents contrad icted the assertion of
urgency which justified an adverse inference.
(ii) The dispute of facts including those relating to urgency render this
matter unsuitable for motion proceedings; and
(iii) The application ought to be dismissed on urgency alone.
[18] His broad submission was that the application was defective and did not stand
any legal scrutiny.
[19] Therefore, the parties’ submissions are not “double -edged” as they sought
redress on different terms which are not distinct from each other. In the
evaluation of these submissions, I will analyze them chronologically to ensure
coherence of the judgment.
ANALYSIS
[20] The applicant sought restoration of the lawful possession of the Truck, that was
unlawfully taken from his Driver with a direct impact on him. On t he other hand,
the respondent sought reconsideration of the order granted by Nobatana AJ on
the 17 th of December 2025. The structure of this analysis will first deal with the
issue of urgency because it is the basis of this application. Secondly, it will
address the admissibility of hearsay evidence in motion proceedings. Lastly, to
further deal with the main content of this application: mandamant van spolie. This
principle is analyzed as the last principle because it tightens the arguments
raised about the rationality of the afore-grounds which are of equal importance to
this application.
Urgency in motion proceedings
[21] The substance of urgency in this matter which is regulated by Rule 6(12) of the
Uniform Rules of Court was decided in the order of the 17th of December 2025. In
that order, the respondent had to show cause and reasons in these proceedings
why it should not be made final. In these proceedings, the respondent argued for
reconsideration of that judgment because it was granted in inconvenient periods /
times within which to respond to application which included amongst others, the
filing of affidavits. Besides, the urgency was self -created because of the
applicant’s failure to comprehend the chronology of events that resulted in the
taking over of the Truck. He argued that “urgency is not established … on mere
procedural incantation; it is a jurisdictional fact that must be established on
papers.” In his argument with reference to this issue, he, amongst other
judgments cited the judgment by Tuchte n J in Mogalakwena Local Municipality v
Provincial Executive Council, Limpopo9 who held:
“It seems to me that when urgency is in issue the primary investigation
should be to determine whether the applicant will be afforded substantial
redress at a hearing in due course. If the applicant cannot establish
prejudice in this sense, the application cannot be urgent. … Once such
prejudice is established, other factors come into consideration [which]
include (but are not limited to): whether the respondents can adequately
present their cases in the time available between notice of the application
to them and the actual hearing, other prejudice to the respondents and the
administration of justice, the strength of the case made by the applicant
and any delay by the applicant in asserting its rights. This last factor is
often called, usually by counsel act ing for respondents, self -created
urgency,”10 (emphasis mine).
9 [2014] 4 All SA 67 (GP).
10 Ibid para 64.
Judge Tuchten further stated and touched on the content of the applicant’s case
with reference to urgency and held:
“The case for the applicant is that the respondents are seeking unlawfully
to take away its lawfully derived power to govern the municipality at a local
government level. That case, if ultimately substantiated, is directed at
redressing nothing less than a serious violation of the rule of law. The
prejudice to the applicant is manifest. Every action taken by someone who
is in law a usurper of power is unlawful and, especially where third parties
are involved, might give rise to complex questions of fact and law. Where
the funds of a municipality are disbursed by such a usurper, re covery
might be attended by serious problems and even be impossible. I find that
the applicant has shown that it will suffer prejudice which cannot be
redressed at a hearing in due course,”11 (emphasis mine).
[22] In this case, the respondent describes hi mself as a “commercial business” entity
that is involved in the selling of motor vehicles. This is the authority that Judge
Tuchten rejected because it entrenches the usurpation of authority over those
with less authority. It is further deduced from Judge Tuchten that on an allegation
of the lack of urgency by the respondent, it is not disputed in this judgment that it
is the applicant that is required to explicitly justify the urgency in terms of Rule
6(12). According to me, the applicant provided sufficie nt reasons that justify the
urgency of this matter. The contention is motivated by the fact the issue in this
application was never about the existing sale of agreement. The primary issue
was the unlawful dispossession of the Truck from the applicant. The substance of
the reasons provided and its link to the provisions of Rule 6(12) are of
fundamental importance because they entail an objective assessment by the
Court to guard against the abuse of urgent processes. Notshe AJ in East Rock
Court to guard against the abuse of urgent processes. Notshe AJ in East Rock
Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd12 held:
11 Ibid para 65.
12 [2011] ZAGPHC JHC.
“The import thereof is that the procedure set out in rule 6(12) is not there
for taking. An applicant [must] set forth explicitly the circumstances which
he avers render the matter urgent. More importantly, the Applicant must
state the reasons why he claim s that he cannot be afforded substantial
redress at a hearing in due course. The question of whether a matter is
sufficiently urgent to be enrolled and heard as an urgent application is
underpinned by the issue of absence of substantial redress in an
application in due course. The rules allow the court to come to the
assistance of a litigant because if the latter were to wait for the normal
course laid down by the rules it will not obtain substantial redress, ”13
(emphasis mine).
[23] It seems to me without repetition and as correctly articulated by Notshe AJ, the
rules of urgency are constituted by: (i) circumstances which renders the matter
urgent must be explicitly stated; (ii) reasonable belief of not getting substantial
redress at the hearing in due course; (iii) Court to be cautious whether urgency
has been established and (v) urgency must not be self -created.14 In these
circumstances, the standard of proof, although it is on a balance of probabilities,
should be interpreted in a way that justify the urgency of the issue. In this
instance, it is common cause that the parties know each other but in terms of
economic balance, they are not on an equal standing. Therefore, as articulated
by the respondent during oral argument, they have a relationship of trust
between them. Thus, despite the said relationship, in terms of economic equality
and the unlawful dispossession of the Truck showed the power imbalance
between them. The imbalance is an affirmation of the urgency of this matter to
ensure the just ified substantial redress without any delay. It is a common
understanding that the economic value of any vehicle involves its depreciation at
the prejudice of the affected party. In this case, the continued dispossession of
the prejudice of the affected party. In this case, the continued dispossession of
13 Ibid para 6.
14 Ibid.
the Truck by the respondent does not bring any economic value regarding its
status in the financial markets. This makes this application urgent, particularly
with what it seems to me to be a disregard of the framework that regulates the
principles of urgency. I found it difficult to unde rstand the substance of the
argument against urgency. The applicant did not deny that payment was not
effected in full including the agreement itself. The respondent has failed to
provide justifiable reasons that could have met the minimum threshold agains t
the prescripts of Rule 6(12).
Admissibility of hearsay evidence
[24] The admissibility of hearsay evidence is one of the basic principles that seek to
determine the credibility of the person relaying such evidence as opposed to the
one who is giving evidence. Broadly, hearsay evidence is inadmissible due to
various factors such as unreliability of such evidence which may subsequently
mislead the court. It is a standing principle that the introduction of evidence in
motion proceedings is by way of aff idavits. Reddy AJ in Mabale v Verey 15
affirmed the principle and went on to state that “save for its application in urgent
matters.16 The promulgation of The Law of Evidence Amendment Act 45 of 1988
(Amendment Act) cures the missing link between the eviden ce that is introduced
in affidavits and the one I will refer to as “orally” obtained evidence. The
Amendment Act provides in section 3 that:
(1) Subject to the provisions of any other law, Hearsay evidence shall
not be admitted as evidence at criminal or civil proceedings, unless:
15 [2023] ZANWHC 147.
16 Ibid para 44.
(a) Each party against whom the evidence is to be
adduced agrees to the admission thereof as evidence
at such proceedings.
(b) The person upon whose credibility the property value
of such evidence depends, himself testifies at such
proceedings; [and]
(c) The Courts [are enjoined] to have regard to (i) the
nature of the proceedings; (ii) the nature of the
evidence; (iii) the purpose for which the evidence is
tendered; (iv) the probative value of the evidence; (v)
the reason why the evidence is not given by the
person upon whose credibility the probative value of
such evidence depends; (vi) any prejudice to a party
which the admission of such evidence might entail;
and (vii) any other factor which should in the opinion
of the court be taken into account.
[25] This provision entails a holistic understanding of all the relevant factors relating to
the implications of alleged hearsay evidence. It affords the court an opportunity to
exercise its discretion to determine how much weight it should place on such
evidence. In this case, as the respondent argued that the Driver relayed hearsay
evidence to the applicant and was therefore inadmissible. The application of
hearsay evidence in motion proceedings was foregrounded and anchored by
Rugunanan J in Eastern Cape Development Corporations v Occupiers of Erf 117
and Erf 110 Umtata, Windsor Hotel, 36 Sutherland Street, Mthatha. 17 In that
case, the Judge shared the sentiments that hearsay evidence may be excluded
under normal circumstances. However, he went on to state that:
“Hearsay evidence is more readily admitted in urgent matters, but this
does not mean that the requirements of the Evidence Act may be
17 [2023] ZAECMKHC.
bypassed. It merely means that a court, having regard to exigencies on
the urgent roll, will approach the admission of hearsay with some degree
of latitude, if in appropriate circumstances, it is properly advanced an d
motivated. Differently put, a proper motivation must be set out in an
affidavit by the party relying on the hearsay matter having regard to the
requirements in section 3(1) of the Evidence Act. But this is not the only
basis upon which the applicant’s reliance on the hearsay evidence fails.”18
[26] In this case, I found it improbable that the evidence communicated to the
applicant was hearsay. The respondent, on papers and during oral arguments
boldly stated that “he took the truck from Olwethu (Driver). ” Thereafter, he
immediately sent messages to the applicant to advise him that he took over the
Truck. The probative value of the alleged hearsay evidence that was transmitted
by the Driver, which was also not disputed by the respondent, gave credence to
the truthfulness of the relayed information to the applicant. I am not to doubt the
credibility of the Driver’s evidence as it was also confirmed by the respondent.
My discretion to admit the “hearsay evidence” was justifiable in these
circumstances. I must state although the respondent did not violently take over
the Truck from the Driver, he missed the point. The crux of the issue was his
taking of the possession of the Truck from Driver at the prejudice, not only of the
applicant but the undermining of wh at I refer to as the ‘interest of justice’. I am of
the view that the latter interests are incapsulated in section 3(1) of the
Amendment Act. If it was not for justifiability of hearsay evidence which needed
the exercise of the discretion by this Court, it is my affirmative view that
legislature, as the law-making body, could not have seen the need for the Courts
to consider such evidence. It is also not disputed by this Court the humanity the
to consider such evidence. It is also not disputed by this Court the humanity the
respondent showed the Driver and his offer for him to sleep at h is place of
residence in East London. However, it is deeply concerned by what appeared to
be the execution of authority over the Driver which therefore, amounted to self -
help. This brings me to the crux of the prayer by the applicant.
18 Ibid paras-28-31.
Mandament van Spolie
[27] It is stated and settled that no person may be deprived of property without the
due process of law. In this regard, the principle of mandament van spolie serves
as a catalyst to remedy any disturbance of the peaceful and undisrupted
possession of th e property. The Court in this case considered the application of
the principle of mandament van spolie . The respondent brought to the attention
of this Court the judgment by Binns -Ward J in Van Rhyn v Fleurbaix Farm (Pty)
Ltd19 which provided an insight into the said principle as the Judge held:
“Mandament van spolie primarily seeks to prevent individuals from taking
the law into their hands. It prevents unlawful dispossession of property
without consent, a court order or any other legal basis. It is abou t
protecting and restoring peaceful and undisturbed possession before the
merits of the case can be considered. Therefore, there must be actual
possession and actual unlawful dispossession of the property. … The
fundamental purpose of the remedy is to serv e as a tool for promoting the
rule of law and as a disincentive against self-help.”20
[28] This is the basic point in this case. The respondent framed his argument against
mandament van spoliation within the framework of a contractual dispute. He
argued for the retention of the Truck until the final payment was made. This
meant misdirection relating to the legal question raised by the applicant in this
matter, which was not about the enforcement of a contract. The primary issue, if it
was not for the respondent unlawfully dispossessing the applicant of the Truck,
the issue of spoliation could not have arisen. The relegation of this issue to
contractual obligations diminishes the legal question raise d herein. I do not
intend to traverse this issue. Even if that was to be the case, the argument for the
19 2013 (5) SA 521 (WCC).
20 Ibid para 7 (footnotes omitted).
retention of the Truck does not absolve the respondent from ensuring compliance
and following due processes of law to have the Truck handed over to him. I
repeat, he would still be required to apply for a Court Order for it to be returned to
him. In these circumstances, as I affirmatively do, no property had to be
repossessed without a Court Order despite the type of any agreement that was
entered into by the parties.
[29] Returning the gist of the mandament van spolie the respondent further brought to
the attention of this Court the judgment by Madlanga J in Ngqukumba v Minister of
Safety and Security 21 which turned to be unsupportive of his argument ag ainst
spoliation. In that judgment, Madlanga J held:
“Possession of the vehicle by the applicant pursuant to its return in terms of a
court order would only be unlawful if it were established that he did not have
lawful cause to possess it. That is a con clusion that can only be reached after an
enquiry into the facts surrounding the applicant’s possession. Before that enquiry,
one is not in a position to say the applicant’s possession of the vehicle will be
unlawful – it may or may not be, depending on th e result that the enquiry would
yield. The question that arises is: in proceedings for a spoliation order, is it proper
to hold that enquiry? I say not. That would be enquiring into the merits of the
lawfulness of the applicant’s possession. Those merits a re irrelevant in
proceedings for a spoliation order: the despoiler must restore possession before
all else. Self-help is so repugnant to our constitutional values that where it has
been resorted to in despoiling someone, it must be purged before any enquir y
into the lawfulness of the possession of the person despoiled. … [And] that
restoration of possession may even be to a person who might eventually be
shown to be a thief or robber. The return to the applicant of the tampered vehicle,
which may be possessed lawfully, is no different,”22 (emphasis mine).
which may be possessed lawfully, is no different,”22 (emphasis mine).
21 2014 (7) BCLR 788 (CC).
22 Ibid para 21 (footnotes omitted). Madlanga J in Ngqukumba cited with approval Cameron JA in
Tswelopelo Non-Profit Organisation v City of Tshwane Metropolitan Municipality [2007] ZASCA 70 para 21
who held: “… Under (mandament van spolie), anyone illicitly deprived of property is entitled to be restored
The crux of spoliation principles was earlier dissected by Mhlantla JA in Ivanov v
Northwest Gambling Board23 who held:
“The aim of spoliation is to prevent self -help. It seeks to prevent people from
taking the law into their own hands. An applicant upon proof of two requirements
is entitled to a mandament van spolie restoring the status quo ante. The first is
proof that th e applicant was in possession of the spoliated thing. The cause for
possession is irrelevant – that is why possession by a thief is protected. The
second is the wrongful deprivation of possession. The fact that possession is
wrongful or illegal is irreleva nt as that would go to the merits of the dispute, ”24
(emphasis mine).
[30] It is, therefore, a common cause that the applicant was in lawful possession of
the Truck until his deprivation by the respondent. The issue which had been put
to rest by the above judgments was the fact that even if the applicant was a thief,
the Truck ne eded to be restored to him. The reasons for the dispossession are
immaterial because they will be stepping into the merits of the case. The non -
payment of the outstanding balance of R100 000.00 dug deeper into the merits of
this case which are of no releva nce. I am also not to make an issue about the
applicant’s consent for the Truck to be taken from him because it does not carry
any substance for the spoliation principle. The respondent’s argument failed to
demonstrate that he was well -abreast with princip les of mandament van spolie .
Binn-Ward J contextualized the basis of spoliation because it involves the
unlawful possession of the property before the determination of the merits that
constituted the cause of action. 25 This is guarded by the foundational v alues of
the Constitution of the Republic of South Africa, 1996 (Constitution) which seeks
to possession before anything else is debated or decided …. Even an unlawful possessor – a fraud, a
thief or a robber – is entitled to the mandament’s protection. The principle is that illicit deprivation must be
remedied before the courts will decide competing claims to the object or property.”
23 [2012] ZASCA 92.
24 Ibid para 19 (footnotes omitted).
25 Binn-Ward J (note 6 above).
to promote the rule of law as articulated by Binn -Ward J. It carries the weight for
the establishment of a stable society that ensures peaceful and regulated
mechanisms of resolving disputes. Mokgoro J in Lesapho v North West
Agricultural Bank26 simplified the quest for the resolve of disputes in an amicable
way and held:
“… is a bulwark against vigilantism, and the chaos and anarchy which it
causes. Construed in t his context of the rule of law and the principle
against self-help … is indeed of cardinal importance.”27
[31] It is my opinion that the distinct nature and the misconceived respondent’s
arguments for taking over Truck constituted a failure to demonstrat e a thorough
understanding of the two-stage process in spoliation issues. In essence, the facts
and legal issues raised by the applicant regarding the mandament van spoliation,
were the unlawful dispossession of the Truck from the applicant. If this matter
was not based on mandament van spolie but on contractual basis, the
respondent was still required to follow the normal processes in enforcing the
contract. Let me reiterate that the enforcement of the contract was not a subject
of dispute herein. The principle of spoliation cannot be framed through the lens of
enforcing a specific performance in contractual obligation. The applicant had to
be restored to his original possession under which he came to be in possession
of the said property.
[32] The establ ished facts, which I do not intend to reproduce, showed that the
applicant has made a case for confirmation of the rule nisi that was granted by
Nobatana AJ on the 17 th of December 2025. I am equally satisfied that the
applicant has fulfilled the interrela tionship of the principles that exists between
those that regulate urgency vis-à-vis mandament van spolie.
26 1999 (12) BCLR 1420 CC.
27 Ibid para 22.
[33] It is therefore essential that I consider the issue of costs. I am not to deviate from
the standing principle that costs should follow the resu lts. This Court does not
view this litigation as vexatious. It sought to ensure the evolution of the well -
established principles on urgency and mandament van spolie . They further give
content to broader framework of ensuring access to justice. The costs ar e
ordered as they appear below.
[34] In the result, the following order is made:
[34.1] The rule nisi which was granted by Nobatana AJ on the 17 th of
December 2025 is confirmed.
[34.2] The respondent is ordered to return the Tata Truck model LPT 1518
with license registration letters and numbers: K[...] to the applicant
within seven (7) of the delivery of this judgment.
[34.3] There is no order as to costs.
________________________________
N NTLAMA-MAKHANYA
ACTING JUDGE OF THE HIGH COURT
BHISHO
Delivery: This judgment is issued by the Judges whose name appears herein and is
delivered and submitted to the parties /legal representatives. Its date of delivery is
deemed 24 March 2026.
Date Heard: 29 January 2026
Date Delivered: 24 March 2026
Appearances:
Applicant: Advocate D Pitt
Instructing Attorneys: Nieuwoudt-Du-Plessis Inc
East London
Respondent: Lungelo Biyana (In person) for LSB Group