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[2026] ZAGPJHC 530
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Njilo Consulting and Logistics (Pty) Ltd v Anthem Apartments CO (Pty) Ltd and Others (034644/2026) [2026] ZAGPJHC 530 (19 February 2026)
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE
NO
: 034644/2026
DATE
:
19.02.2026
(1) REPORTABLE:
NO
(2) OF INTEREST TO
OTHER JUDGES : NO
(3)
REVISED
In the matter between:
NJILO
CONSULTING AND LOGISTICS (PTY) LTD
Applicant
and
ANTHEM
APARTMENTS CO (PTY) LTD
1
st
Respondent
INANI PROP
HOLDINGS (PTY) LTD
2
nd
Respondent
PROPFICIENT
PROPERTY MANAGEMENT
3
rd
Respondent
JUDGMENT
MOULTRIE,
J
: Almost all the
relief that the applicant seeks in its notice of motion (other than
the enrolment of the matter on
urgent basis) is interdictory, and all
of it is final in nature.
Prayer 2 seeks an
order interdicting the respondents from interfering with the
applicant’s possession, control and use the
business premises
over which (it is common cause) it concluded a lease with the first
respondent. I will address this relief
immediately. No
case whatsoever was made out for any continuing reasonable
apprehension that the first respondent will not
honour the
requirements of the lease with regard to the possession, control and
use of the business premises generally.
Prayers 3 and 5 of
the notice of motion deal with what is referred to as the applicant's
“designated parking area”.
I will return to this relief
in due course.
Prayer 4 seeks an
interdict to protect the applicant's continued possession, control
and use of “additional space” within
the business
premises. Although this “additional space” is not clearly
described in the founding papers, it appears
to have been
well-understood by both parties what was being referred to.
Mr Mureriwa correctly conceded that no case
has been made out
for the existence of any right, either final or
prima
facie
, to continued use of the
additional space. Respondent's pleaded case relies on the
absence of any provision in the lease
giving a right of use of that
space.
Prayer 6 of the
Notice of Motion is worded as follows:
"… In the event that by
the date of this order the respondent has been dispossessed of
control, use, possession of the
property or parking described in
order 1 above, the Respondents and any other person who may have
taken over control of the said
property, be and are hereby ordered
and directed to restore the Applicant’s peaceful and
undisturbed possession, use and
control of [such property]."
I can only assume
that the references to “the Respondent has been” and to
“order 1” were intended to be
to “the applicant has
been” and to “prayers 2 to 5” rather than
“paragraph 1”. I will return
to this relief.
Prayer 7 seeks an
order that:
"In the event of any alterations
to the property having been done by the Respondents or its assigns,
then and in that case
the Respondent and any other person so acting
with its authority and or on its behalf, be hereby ordered and
directed to remove
such alterations and restore the property to the
condition it was before the 12
th
day of February 2026."
No argument was submitted before me,
and no case was made out, with regard to the relief sought in prayer
7.
Prayer 8 contains
the standard residual prayer of further and/or alternative relief.
I proceed to
consider the aspects of the relief that are interdictory in nature,
which I have not already dealt with, namely the
interdicts sought in
prayers 3 and 5. The applicant does not plead, nor was it
argued before me that the applicant has any
legal right (
ius
possessionis
) to be given possession of
any “designated parking area” at the premises. Mr
Mureriwa was ultimately bound to
concede that the existence of such a
right could only emerge from the lease, and it is more than apparent
from the lease that it
affords no such right. Although he did attempt
to persuade me that
animus possidendi
(i.e. the fact of possession with a particular form of intention),
which might give rise to the remedy of the
mandament
van spolie
), could under certain
unspecified circumstances constitute a
ius
possessionis
(i.e. a right to
possession), he did not refer me to any authority for this
submission, or explain how it would apply in the current
circumstances. I consider it so fundamentally and patently flawed as
not to require any further consideration.
In the
circumstances, the interdictory relief sought in prayers 3 and 5
cannot be granted: an interdict is only available in respect
of a
right proven to the requisite evidential standard (cf.
Tshwane
City v Afriforum
2016 (6) SA 279
(CC) para 141
:
“The first requisite is that a 'right' must be established,
even if open to doubt. If not, then there can be no interim
interdict, just as there cannot be a final interdict in due course”).
No right has been proven in relation to the use, control
and
possession of any “designated parking area” on behalf of
the applicant in this case.
That then takes me
to the relief sought in prayer 6. This is the only relief in
the notice of motion, which could potentially
be described as being
spoliatory in nature. Mr Mureriwa identified the subject matter
of this relief as being limited to
the area referred to in paragraph
8.1.4 of the founding affidavit as “our parking area”,
which the applicant alleges
was fenced off by one or more of the
respondents at some point since 12 February 2026. However, even
accepting in the applicant’s
favour that it has made out a case
for the
mandament van spolie
in respect of this area, it would seem to me that this relief cannot
be granted in view of the principles set out by the Supreme
Court of
Appeal in
Street Pole Ads Durban (Pty)
Ltd v Ethekwini Municipality
[2008] ZAGPHC 33
;
2008 (5) SA 290
(SCA)
at
paras 15 and 16. Having gone further than merely seeking the
mandament van spolie
and claimed a substantive right to possession (in prayers 3 and 5 of
the notice of motion), the applicant has “forced an
investigation” of its right to possession of the property that
forms the subject matter of the relief. The question becomes
whether
or not the applicant has established such a right, applying the
principles applicable to the determination of factual disputes
in
applications for final relief under the well-known
Plascon-Evans
rule. In other words, it is no longer open to an applicant,
having ‘opened the door’ to a discussion of its right
to
possession of property (i.e. the
ius
possessionis
) to rely simply on its
animus possidendi.
This
is well-established law, and it is inappropriate for the Court to
decide the matter on the basis of whether the applicant has
established the requirements for the mandament van spolie.
As I have mentioned
earlier in dealing with prayers 3, and 5 it has already been conceded
that the applicant has no right (arising
from the lease or otherwise)
to any particular parking area, and it is abundantly clear from the
answering affidavit that, as matters
currently stand, the applicant
continues to have general access to parking at the premises.
In the
circumstances, none of the relief sought by the applicant may be
granted. For the avoidance of doubt, I wish to emphasise
that
the factual findings that I have made in the application before me
today, are not intended to be of general application in
any other
matter and are simply conclusions that I have reached on the basis of
the evidence before me. As a result, my finding
that the
applicant has failed to establish a right to any particular parking
places or “designated parking area”, is
one that is based
solely on the evidence that served before me. And to the extent that
it may be implicit in this judgment that
I have not excluded the
possibility that the applicant has a right to park in the parking
area of the premises generally (as opposed
to a right to park in any
specified area), this is not intended to be a pertinent finding
regarding the scope of the contract,
since that was not the issue
before me.
The general
principle of costs is that they should follow the result. Mr
Mureriwa made a spirited argument before me that
due to the
respondent's conduct in advance of the litigation, the applicant
should not be mulcted in costs. Whatever the
merits and
demerits of the parties' conduct before and during the litigation may
have been however, the fact is that court proceedings
are serious
matters requiring careful attention, and careful attention in this
case had to be paid to the formulation of the relief
that was sought
in the notice of motion.
The respondent's
conduct in relation to other relief that the applicant might have
sought, or might in future seek, is therefore
not relevant in
considering whether the applicant should not be mulcted in costs
despite its having been the unsuccessful party.
The bottom line
in this instance is that the applicant is the unsuccessful party in
relation to the relief that it sought, and
it should be mulcted in
costs.
In the
circumstances, I make the following order:
1. The application is dismissed.
2. The applicant is to pay the
respondents’ costs, including the costs of counsel on scale
“A”.
MOULTRIE, J
JUDGE OF THE HIGH COURT
DATE
OF JUDGMENT
: 19 February
2026
REVISED
:
27 February 2026