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[2026] ZAGPJHC 543
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Education, Training, and Development Practices Sector Education and Training Authority v SKG Africa (Pty) Ltd (2026/059752) [2026] ZAGPJHC 543 (22 May 2026)
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IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG
DIVISION, JOHANNESBURG
Case
Number: 2026-059752
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
22
May 2026
In
the matter
between:
THE EDUCATION,
TRAINING, AND DEVELOPMENT PRACTICES
SECTOR EDUCATION AND
TRAINING AUTHORITY (ETDP SETA
Applicant
and
SKG AFRICA (PTY)
LTD
Respondent
JUDGMENT
Mdalana-Mayisela J
Introduction
[1] This is an urgent
application in which the applicant, the ETDP SETA (a public entity),
seeks a
mandament van spolie
against the respondent, its
former landlord, SKG Africa (Pty) Ltd. The applicant does not seek
restoration of occupation of the
leased premises at 45 Mooi Street,
Johannesburg. It seeks an order compelling the respondent to grant it
access to the premises
solely to identify, secure, and remove its
movable property, including office furniture, IT servers, and
critical statutory records.
[2] The respondent
opposes the application on several grounds, including that the matter
is not urgent because any urgency is self-created,
and more
critically, that the applicant has failed to make out its case for
spoliation and interdict in its founding affidavit
and has
impermissibly sought to remedy that defect in its replying affidavit.
The factual background
[3] The facts are largely
common cause. The parties concluded a written Service Level and Lease
Agreement (“SLLA”) on
13 June 2024. The applicant
occupied the premises from July 2024. In April 2025, the applicant’s
employees vacated the building,
citing health and safety concerns.
The applicant’s movable property, however, remained in the
building. The applicant continued
to pay the rental until
August/September 2025.
[4] On 29 November 2025,
the applicant terminated the SLLA with immediate effect. The
respondent disputes the validity of this termination.
[5] The central factual
dispute concerns what happened on 9 December 2025. The applicant
alleges that on this day, its officials
were prevented by the
respondent's security personnel from accessing the premises and
removing their property.
[6] On 15 December 2025,
the respondent issued a summons in the Johannesburg Regional Court
for arrears of rent, which included
an automatic rent interdict in
terms of
section 31
of the
Magistrates’ Courts Act 32 of 1944
.
The Sheriff served this summons on 18 December 2025 and attached the
movable property found on the premises.
[7] After a letter of
demand dated 6 February 2026 and the respondent’s refusal dated
10 February 2026, the applicant filed
the present application on 13
March 2026. The applicant filed its replying affidavit, together with
confirmatory affidavits from
three of its officials (Mokoena, Chirwa,
and Mudenda), on 22 April 2026.
Urgency
[8]
The respondent argues that the matter is not urgent, citing the delay
between the alleged spoliation on 9 December 2025 and
the
application's launch on 13 March 2026. Rule 6(12)(b) of the Uniform
Rules of Court requires an applicant in urgent proceedings
to set
forth explicitly the circumstances which render the matter urgent and
the reasons why the applicant cannot obtain substantial
redress at a
hearing in due course. The court in
Luna
Meubel Vervaardigers (Edms) Bpk v Makin and Another
[1]
cautioned that the degree of relaxation of the rules must be
commensurate with the exigency of the case, and mere lip service to
Rule 6(12) will not do. The applicant did not truncate the normal
time periods for filing answering affidavits, precisely to avoid
prejudicing the Respondent.
[9] The applicant’s
explanation for the delay in launching this application includes the
appointment of a new Accounting Authority
in September 2025, the
appointment of a new Acting CEO on 17 November 2025, and internal
consultations. However, the founding affidavit
is notably silent on
why, if the IT infrastructure was its "
lifeblood,
"
no urgent steps were taken for over three months.
[10]
In
East
Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd
[2]
it was held that the delay in instituting proceedings is not, on its
own a ground for refusing to regard the matter as urgent.
A court is
obliged to consider the circumstances of the case and the explanation
given. A crucial test for urgency is "
whether,
if the matter were to follow its normal course as laid down by the
rules
,
an
applicant will be afforded substantial redress
."
If the applicant can be afforded substantial redress in due course,
the matter is not urgent.
[11] The applicant states
that it would not be afforded substantial redress at a hearing in due
course because the alleged unlawful
deprivation is ongoing. The
deprivation of access to statutory records and IT infrastructure is a
continuing violation. Each day
the applicant is denied access, a
fresh harm occurs. To force the applicant to wait for the
finalization of the respondent’s
summary judgment application
in the Magistrates’ Court would not afford it substantial
redress. I am satisfied that the application
should be determined in
the urgent court. The point
in limine
of urgency is dismissed.
Spoliation
[12]
The
mandament
van spolie
is a cornerstone of our law, designed to prevent self-help and
preserve public order. As the Constitutional Court held in
Ngqukumba
v Minister of Safety and Security
[3]
self-help is repugnant to the rule of law. The remedy requires an
applicant to prove only two elements: (i) that it was in peaceful
and
undisturbed possession of the property; and (ii) that it was
unlawfully deprived of that possession. Ownership, contractual
rights, and the merits of any underlying dispute are irrelevant.
[13]
The respondent argues that the applicant failed to make out a proper
case for spoliation in its founding affidavit and impermissibly
sought to do so in its replying affidavit, relying on a long line of
authority, including the very case it provided to the court,
National
Council of SPCA v Openshaw
[4]
.
[14]
The legal principle is trite and was confirmed in
Openshaw
[5]
:
"
It
is trite law that the applicant in motion proceedings must make out a
proper case in the founding papers
."
A party cannot wait for the answering affidavit to identify a
deficiency in its own case and then seek to cure it in reply.
As held
in
Swissborough
Diamond Mines (Pty) Ltd v Government of the Republic of South
Africa
[6]
the founding affidavit must contain the primary facts upon which the
applicant relies to discharge the onus of proof. The replying
affidavit is for responding to a new matter raised by the respondent,
not for building a case that should have been built from
the start.
See also
Shephard
v Tuckers Land and Development Corporation (Pty) Ltd
[7]
and
Titty's
Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and Others.
[8]
[15] Applying this
principle to the present matter is dispositive. The essential facts
for a
mandament van spolie
are: (i) peaceful and undisturbed
possession of the property; and (ii) unlawful deprivation thereof.
[16]
The Founding Affidavit, deposed to by Ms. Mafahla, the Acting CEO, is
deficient in establishing the first requirement. It states
that the
applicant’s employees vacated the premises in April 2025. It
states that the applicant exercised "
uninterrupted
physical control and access to the premises and to its movable
property from the commencement of occupation until
the events
described below
".
However, it provides no primary facts, no names, no dates, no
descriptions of specific acts to support the critical inference
that
the applicant retained physical control over its movable property for
the eight months between April and December 2025. The
deponent admits
she lacks personal knowledge, yet no confirmatory affidavits from the
ICT personnel or other officials who allegedly
maintained access are
attached to the founding papers. The deponent merely states in para 4
that information from officials "
is
confirmed under oath where necessary,
"
but no such confirmations were provided. As held in
Crossman
v Capital Alliance Group Risk and Others
[9]
an applicant cannot set out a skeletal case and then supplement it in
reply. This is precisely what the applicant has done.
[17] The fatal flaw
becomes apparent upon examination of the replying affidavit. It is
there, for the first time, that the applicant
introduces the
confirmatory affidavits of Mr. Mokoena, Mr. Chirwa, and Ms. Mudenda.
These affidavits are not merely responsive
to the respondent’s
denial of the lock-out. They provide the very primary facts that were
absent from the founding affidavit:
- They identify specific
officials (Mokoena, Chirwa, Mudenda, Magaba) who accessed the
premises between April and December 2025.
- They state that these
officials accessed the premises for operational purposes.
- They provide detailed,
first-hand accounts of the events of 9 December 2025.
[18] These are not new
facts arising from the respondent’s answering affidavit. They
are foundational facts that the applicant
knew, or should have known,
from the very beginning. They are facts that were essential to prove
the applicant’s case in
relation to the spoliation remedy and
interdict. The applicant’s failure to include them in the
founding affidavit and its
attempt to introduce them only in reply
constitute a clear violation of the rule confirmed in
Openshaw
and
Swissborough
.
[19] The respondent
alleges prejudice. It was required to answer a vague founding
affidavit that did not properly put it on notice
of the detailed case
against it. Allowing the applicant to now rely on the confirmatory
affidavits in the replying papers would
ambush the respondent, who
has no automatic right to respond to this new material. This court
cannot permit such a procedural irregularity.
I refuse to consider
the said confirmatory affidavits.
[20]
The applicant bears the onus of establishing the factual basis for
the relief it seeks. A bare assertion of dispossession is
insufficient, especially where the applicant had, on its own version,
ceased physical occupation of the premises long before. The
respondent denies any lock-out on that date in its answering
affidavit. It has placed before the court evidence that the applicant
made no complaint about the alleged lock-out for two months and that,
when access was requested in April 2026, it was granted.
The
respondent's version is at least plausible. There is a material
dispute as to whether the alleged lock-out occurred. In motion
proceedings, where there is a material dispute of fact that cannot be
resolved on the papers, the court applies the rule in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[10]
and accepts the
respondent’s version. Applying that test, the applicant has not
discharged the onus of proving the unlawful
deprivation required for
spoliation. The interdict prayed for in the notice of motion must
therefore be refused on this substantive
ground as well.
Conclusion
[21] The applicant has
failed to make out a proper case for spoliation and interdict in its
founding affidavit. It has impermissibly
sought to remedy this defect
in its replying affidavit. The application, in its current form,
cannot succeed.
[22] The general rule is
that costs follow the result. I see no reason to depart from this
principle. The respondent asks for costs
on the attorney-client
scale; alternatively, scale C. I am not persuaded to grant punitive
costs.
ORDER
[23] In the result, I
make the following order:
1.
The applicant's non-compliance with the
forms and service requirements is condoned, and the application is
heard as one of urgency
in terms of Uniform Rule 6(12).
2.
The application is dismissed.
3.
The applicant is ordered to pay the costs
of this application on a party and party, Scale C.
MMP
Mdalana-Mayisela
Judge
of the High Court
Gauteng
Division
(Electronically
delivered by uploading on Caselines and emailing to the parties)
Date
of hearing:
30 April 2026
Date of
Judgment:
22 May 2026
Counsel for the
Applicant:
Adv T Tshavhunwa
Instructed
by:
Raphela Incorporated Attorneys and Conveyancers
Counsel for the
Respondent:
Adv J Pretorius
Instructed
by:
Sim Attorneys Incorporated
[1]
1977
(4) SA 135
(W) at 137.
[2]
2011
JDR 1832 (GSJ) para [8].
[3]
2014
(5) SA 112
(CC) para [10].
[4]
2008
(5) SA 339 (SCA).
[5]
at
para [29].
[6]
1999
(2) SA 279
(T) at 323I-324F.
[7]
1978
(1) SA 173
(W) at p180
[8]
1974
(4) SA 362
(T) at p369
[9]
2022
JDR 1125 (GJ) at para [44].
[10]
[1984] ZASCA 51
;
1984
(3) SA 623
(