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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2026-068440
In the matter between:
ANNA MARIA VAN ONSELEN 1st Applicant
CONA & KIE (PTY) LTD 2nd Applicant
And
ANNA SOPHIA SMIT 1st Respondent
ANNA SOPHIA SMIT NO 2nd Respondent
ARNO BASSON NO 3rd Respondent
PIETER GERHARDUS VILJOEN NO 4th Respondent
JOHANNES AUGUSTUS DU PLESSIS NO 5th Respondent
THE MASTER OF THE HIGH COURT, PRETORIA 6th Respondent
Delete whichever is not applicable
REPORTABLE: YES / NO
OF INTEREST TO OTHER JUDGES: YES/NO
REVISED: YES/NO
23 April 2026
DATE SIGNATURE
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JUDGMENT
Mazibuko J
Introduction
[1] The applicants seek a spoliation order against the respondents, on an urgent
basis, under Part A, for the first to fourth respondents to restore to the applicants
full access and control of the immovable property forming part of the Gooseberry
Estate under the Gooseberry Trust (‘the Trust’).
[2] Under Part B, on a normal course, the applicants seek an order reviewing and
setting aside the decision of the sixth respondent, in appointing the third and
fourth respondents as trustees and issuing them with Letters of authority .
Further, for the first to fourth respondents to account to the applicants for all
income received and all expenses incurred in the administration of the affairs of
the Trust.
[3] At this stage, the first applicant, Anna Maria van Onselen (‘Van Onselen’), in both
her personal and official capacity as a director of the second applicant, Cona &
Kie (Pty) Ltd (‘Cona’), and Cona, (together referred to as ‘the applicants’) only
proceed with the urgent application. The application is opposed by the first and
second respondents, Anna Sophia Smit (‘Smit’), in her personal capacity and in
her official capacity as a trustee of the Trust, respectively, the third respondent,
Arno Basson N O, a trustee of the Trust and the fourth respondent, Pieter
Gerhardus Viljoen N O, a trustee of the Trust , (together referred to as ‘the
respondent’). The fifth respondent, Johannes Augustus Du Plessis NO, cited in
his capacity as an Executor and the sixth respondent, the Master of the High
Court, Pretoria, (‘the Master’) are not participating in the application.
[4] It is common cause that Van Onselen was married to Willem Albertus Smit (‘the
deceased’), who died in July 2021. In December 2006, the deceased , together
with his mother, Smit an d Lynnette Brunt who has since emigrated overseas
years ago and took no interest in the Trust, established the Trust. In August 2008,
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the Trust acquired an immovable property. Van Onselen is an income beneficiary
of the Trust.
[5] The applicants allege that, on the date of the deceased’s demise, the Trust
terminated and the Trust’s assets vested in the capital beneficiaries. She is the
deceased’s sole heir; accordingly, the estate property vests in her. She has a
protected interest in the Trust property and the income stream, and a stake in
possession and control of the Trust, since she is a beneficiary of the Trust and a
beneficial owner of the Trust property.
[6] Further, since the demise of the deceased the Trust has not been properly
functional. They exercised control over the Trust estate, including the immovable
property, by renting out some units of the property, and collecting the monthly
rental and administering the property through Cona & Kie as negotiorum gestor,
with Smit’s knowledge or acquiescence, until 27 February 2026.
[7] According to the founding affidavit Van Onselen states that on 27 February 2026,
whilst Van Onselen and her husband were at the Trust property, Smit’s armed
guards from Arctic Security (Pty) Ltd (‘Arctic Security’) informed them that Smit
had “taken over” the estate. Their entry and exit were blocked. They were locked
inside the gate and refused exit.
[8] On 28 February 2026, access to a scheduled function at the immovable property
was obstructed because a caterer was initially refused entry and a key was
removed from the lockbox. On 1 March 2026, Smit, with armed guards, ordered
Van Onselen’s husband to leave, asserting ownership and relying on the letter
of authority appointing the trustees. On 16 March 2026, Van Onselen was
prevented from removing the lawnmower. The tenants’ rental is now redirected
to the Trust, and their lease agreements are in the Trust’s name.
[9] It was argued on behalf of the applicants, firstly, that mandament van spolie is a
quick and summary remedy, whose purpose will be destroyed if not executed
quick and summary remedy, whose purpose will be destroyed if not executed
swiftly and effectively. Having gained full control over the Trust's assets, Smit,
motivated by the discord with Van Onselen and her previous threats, will prevent
Van Onselen from continuing to receive all income received from the Trust.
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[10] In opposing the application, th e respondents argued that the mere fact that the
mandament van spolie is a speedy remedy does not mean it is automatically
urgent. Furthermore, even if Smit prevents Van Onselen from continuing to
receive all income from the Trust, this does not render the application urgent as
it concerns harm (which may be relevant to interim relief), not the absence of
substantial redress in due course. The applicants also unreasonably delayed the
bringing of the application.
[11] Further, the respondents raised point s in limine, the misjoinder of Cona & Kie ,
contending that a negotiorum gestor does not possess in the sense required
under a mandament van spolie . The non -joinder of Arctic Security, which is a
necessary party that has a direct and substantial interest in any order the court
may grant in this application, because the applicants allege it was instrumental
in the spoliation.
[12] In response to the alleged spoliation , the respondents deny that the applicants
were in peaceful and undisturbed possession of the Trust property because
tenants occupied the units. They contended that the applicants accessed the
Trust property despite the alleged conduct of Smit and Arctic Security. As a
beneficiary, Van Onselen has no right to possess or control Trust property or
collect Trust rentals unless authorised by the trustees.
[13] Rule 6 (12) of the Uniform Rules requires applicants, in all affidavits filed in
support of urgent applications, to set out the circumstances that render the matter
urgent and why they cannot be afforded substantial redress at a hearing in due
course.
[14] When a matter is brought to court on an urgent basis, the question to be
answered is whether or not the applicant will be afforded substantial redress in
due course.1 In the event that the applicant does not succeed to convince the
court that he will not be afforded substantial redress at a hearing in due course,
court that he will not be afforded substantial redress at a hearing in due course,
1 East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others (11/33767)
[2011] ZAGPJHC 196 (23 September 2011).
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the matter will be struck from the roll. 2 The matter may also be struck from the
urgent roll where the court finds that urgency was self-created.
[15] The threshold to establish the juristic fact of "absence of substantive redress" is
lower than that of "irreparable harm" for the purposes of establishing an interim
interdict.3
[16] Ordinarily “spoliated victims” are “entitled to approach the Court … on an urgent
basis”. The mandament van spolie is by its very nature a speedy and a robust
remedy, which should, in my view, ordinarily be afforded some degree of
urgency, depending on the facts of the particular matter, in order to be effective.”4
[17] In support of their application, Van Onselen asserted that the application is urgent
since the first incident occurred on 27 February 2026, followed by another on 16
March 2026. The urgent application was launched on 24 March 2026. The about
one-week delay in preparing and launching the application of this nature is not
unreasonable, so was it argued.
[18] The applicant must explicitly set forth the circumstances that render the matter
urgent and the absence of substantial redress if not heard as a matter of
urgency. This is not the equivalent of irreparable harm . Delay will not
automatically result in the matter not being considered urgent.5
[19] Notwithstanding that the applicant s are legally represented and commenced
the exchange of correspondence in February 2026 and obtained counsel’s legal
advice on 5 March , only on 24 March did they launch the proceedings. It can
be accepted that the applicants had been fully appraised of their rights and any
harm they could suffer with respect to the spoliation, at least since the last
incident on 16 March. Therefore, urgency cannot be relied on a week later.
2 SARS v Hawker Air Services (Pty) Ltd 2006 (4) SA 292 (SCA).
3 Several matters on the urgent court roll 2013 (1) SA 549 (GSJ).
4 Ross v Ross 1994(1) SA 865(E), para 872J.
4 Ross v Ross 1994(1) SA 865(E), para 872J.
5 (Molosi and Others v Phahlo Royal Family and Others [2022] 3 All SA 160 (ECM).
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[20] I believe it was not the respondents’ failure or delay in responding to the
applicants’ correspondence of 16 March that necessitated this application. The
applicants proffered no explanation for their conduct and the events leading up
to the launch of the application. No facts or evidence were placed by the
applicants before the court, justifying the urgent attention of the court with
regard to the alleged spoliation. In my respectful view the applicants will be
afforded substantial redress at a hearing in due course.
[21] The applicant has not passed the threshold prescribed by the provisions of
uniform rule 6(12)(b) for the reasons already mentioned . Therefore, the
application ought to be struck off the roll due to lack of urgency. For this reason,
I need not proceed to determine the issue of merits, including the points in limine.
[22] This brings me to the next issue concerning the costs. The facts of the present
matter and the interest of justice justify me to follow the general rule that the
successful party should be awarded costs.
[23] Consequently, I make the following order.
Order:
a) The applicants’ urgent application is hereby struck off the roll due to lack of
urgency.
b) The applicants will pay the costs of the application, including that of counsel,
one paying, and the other to be absolved.
_________
N G M MAZIBUKO
JUDGE OF THE HIGH COURT
PRETORIA
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Heard on: 14 April 2026
Judgment delivered on: 23 April 2026
For the applicants: Adv P Ellis SC
Instructed by: Lombard & Partners Inc
For the respondents: Adv DB du Preez SC
Instructed by: NDBV Inc