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[2026] ZANCHC 51
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Swart v Gariep Systems (Pty) Ltd and Another (2026-117635) [2026] ZANCHC 51 (5 June 2026)
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THE
HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Reportable/
Not
Reportable
Case
no:
2026-117635
In the matter between:
ANDRIES
SWART
Applicant
and
GARIEP
SYSTEMS (PTY) LTD
First Respondent
(Reg.
No: 2023/982840/07)
FREDERICK
MARK SLEMECK
Second Respondent
Neutral
citation:
Swart v Gariep
Systems (Pty) Ltd and Another
(2026-117635)
(05 June 2026).
Coram:
Mamosebo J.
Heard:
29 May 2026.
Delivered:
05 June 2026.
Summary:
Law of Property – Mandament van
spolie – possessory remedy aimed at restoring the status
quo
ante
– applicant required to
establish peaceful and undisturbed possession and unlawful
deprivation thereof – respondents
denying applicant access to
property unless he signed an exit agreement – self-help
impermissible – merits of the alleged
repudiation and
consequent cancellation of the management agreement irrelevant to the
spoliation enquiry – possession restored
ante
omnia
.
ORDER
1.
The application is urgent and the ordinary
forms and service provided for in the Uniform Rules of Court are
dispensed with.
2.
The first and second respondents are
ordered to immediately restore occupation and possession of the
Property described as the Farm
Warmbad Noord Number 1 and the Farm
Warmbad Zuid Number 2 to the applicant in accordance with the
provisions of the management
agreement.
3.
The first and second respondents are
ordered to, forthwith and simultaneously with the restoration of
possession referred to in
order 2 (above) hand to the applicant all
keys, access cards, remote controls, gate keys and other means of
access to the Property,
and to remove any locks, chains or other
devices installed for the purpose of excluding the applicant from the
Property and his
home.
4.
That the first and second respondents, and
all persons acting on their instructions or under their control, are
interdicted and
restrained from interfering with, obstructing or
disturbing the applicant’s free and undisturbed occupation and
possession
of the Property, pending the final determination of the
dispute between the parties in respect of the management agreement,
whether
by arbitration in terms of clause 8 thereof or otherwise.
5.
That the respondents pay the costs of this
application, jointly and severally, the one paying the other to be
absolved, on a scale
between attorney and client, which costs are to
include costs attendant upon the employment of two counsel.
JUDGMENT
MAMOSEBO
J
Introduction
[1]
The applicant brought this spoliation
application on an urgent basis
.
He
asked this Court to condone his non-compliance with the prescribed
time limits, forms and service and hear the application to
restore
his peaceful and undisturbed occupation and possession of the
immovable property and his home thereon, together with his
movable
property kept thereon of which he was unlawfully deprived by the
respondents. He contended that he would not be afforded
substantial
redress in the ordinary course. He also sought a special costs order
on a scale as between attorney and client, which
costs shall include
the costs of two counsel. This application is opposed and was heard
at the end of the unopposed motion roll,
and judgment in the matter
was reserved.
The parties
[2]
The applicant is Mr Andries Swart, a major
male person residing on the farms Warmbad Noord and Warmbad Zuid,
Kenhardt, Northern
Cape. The first respondent is Gariep Systems (Pty)
Ltd, a private company with limited liability, registered and
incorporated in
terms of the laws of the Republic of South Africa.
The second respondent is Mr Frederick Mark Slemeck, a major male.
Salient facts
[3]
The facts are mainly common cause or not
seriously disputed. In brief, the applicant was the previous owner of
the farm, which he
subsequently sold in 2024 to the first respondent.
Part of their agreement, which according to the applicant, was an
integral part
of the sale agreement, was that he was entitled to
reside on the farm until his death or upon due cancellation of the
contract
in terms of clause 7 of the management agreement. His
benefits were to occupy the farm without paying rent, and the sole
use and
occupation of the portions of the farm referred to as the
Main Complex, the Runaway, the Hangar, and the Goat and Sheep camp
areas.
He agreed to render management services to the first
respondent without remuneration.
[4]
After
concluding the management agreement, he acquired a camper vehicle
[1]
to facilitate travel within the country, thereby enabling him to be
away from the property from time to time. The agreement permitted
him
to be away from the property for four months in a year, but for the
remaining eight months, he was required to keep the buildings
and
paraphernalia in a good state of repair. Notwithstanding his periods
of absence, he left behind his movable property, which
included his
furniture, truck, licenced firearms, as well as cattle which the
agreement allowed to roam freely and to graze on
the property.
[5]
He attended a charity function known as
Africa Burn in Quaggafontein in the Tankwa karoo. Upon his return to
the farm on 17 May
2026, he was, wrongfully and against his consent,
denied access to the farm and the house. The farm manager, one
Jandre, whose
full and further particulars are unknown to the
applicant, obtained telephonic instructions from the second
respondent in the presence
of the applicant that the applicant was no
longer welcome at the farm and was not allowed to enter his house and
collect his belongings.
Jandre further told the applicant that he was
instructed to change all locks on the premises. The applicant left.
[6]
There was correspondence between the
applicant’s attorneys and the respondents’ attorneys. The
letter dated 7 April
2026 dealt with the applicant’s cattle
kept at the farm. It notified him of their long-term plan to return
the property to
a wilderness reserve, their proposal to remove his
cattle to the slaughterhouse, and that they would reimburse him
accordingly.
In response, his attorneys wrote a letter dated 26 April
2026, warning against the removal of his cattle, which would
constitute
spoliation. On 17 April 2026, the respondents’
attorneys referred to an incident of assault apparently carried out
by the
applicant on one Thabang Mashinini and that the assault
constitutes repudiation of the agreement which they accepted. The
letter
further dealt with his exit from the farm. Whereas on 20 April
2026, the applicant’s attorneys presented a counterproposal
to
the respondents’ attorneys, the respondents’ attorneys’
response on 22 April 2026 suggested that the applicant
and his cattle
will not be “tossed out” but that an “exit
agreement” will address the matter. The applicant
refused to
sign the exit agreement because it contained a clause that the
management agreement had been validly terminated, which,
according to
him, was not the case. On 21 May 2026, the respondents’
attorneys then concluded that because the applicant
declined their
tender to access the property in their terms as specified in the
“exit agreement”, his refusal nullifies
the necessity for
a spoliation application.
[7]
It was this conduct by the respondents
which sparked the present application. The applicant accordingly
claims an order for the
restoration of his peaceful and undisturbed
occupation and possession of the immovable property and his home,
which he was unlawfully
deprived of by the respondents.
[8]
The respondents’ version of events
confirms the existence of the management agreement. The answering
affidavit, deposed to
by the second respondent, elaborately deals
with the vision of the first respondent that informed the acquisition
of the said Property
and the altercation between the applicant and
one Thabang Mashinini, a former farm labourer, as reported to the
second respondent
by one Mr Jandre de Beer, the farm manager. I deem
it unnecessary to amplify on these aspects as they are disputed and
not before
me, but the subject of an arbitration which is provided
for in clause 7 of the management agreement. The second respondent
seems
to suggest that the applicant has repudiated the contract
entitling them to demand that he vacate the property with immediate
effect
and to return all their property, including keys and access
devices.
[9]
The
applicant was invited to attend on the property to collect his
firearms or to authorise a third party to do so on his behalf,
but
their offer was declined. They deny that the Property is the
applicant’s permanent residence as he spends most of his
time
in George in the Western Cape Province. The respondents’ stance
was informed by the applicant’s repudiatory conduct
and the
alleged assault on Thabang. Ms Katz, for the respondents, argued that
there was no peaceful disturbance because the applicant
preferred to
stay off the farm after acquiring the camper van. Counsel further
submitted that there was no physical control over
the Property. Ms
Katz relied on the case of
Mans
v Mans,
[2]
contending that the matter is not urgent and urged the Court to
strike it from the roll for lack of urgency, considering further
that
the applicant refused to follow a process of mediation as
contemplated by Rule 41A of the Uniform Rules of Court before
litigating.
The respondents sought a punitive cost order, on a scale
as between attorney and own client, against the applicant.
Spoliation
[10]
The
locus
classicus
in spoliation applications which enunciated the principle underlying
mandament van spolie stems from
Nino
Bonino v De Lange
[3]
where Innes CJ articulated:
‘
It
is a fundamental principle that no man is allowed to take the law
into his own hands; no one is permitted to dispossess another
forcibly or wrongfully and against his consent of the possession of
property, whether movable or immovable. If he does so, the
court will
summarily restore the
status quo ante,
and will do that as a preliminary to
any inquiry or investigation into the merits of the dispute.’
[11]
Mhlantla
JA, then, writing for a unanimous court in
Ivanov
v Northwest Gambling Board and Others
[4]
,
and emphasizing the well-established general principles underlying
the mandament van spolie pronounced:
‘
.
. . Spoliation is the wrongful deprivation of another's right of
possession. 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 the
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 irrelevant, as that
would go to the merits of the dispute.’
[12]
The
principle was endorsed by the Constitutional Court in
Ngqukumba
v Minister of Safety & Security and Others,
[5]
where Madlanga J, though dealing with possession of a vehicle,
reiterated that the despoiler must restore possession before the
enquiry into the lawfulness of the possession can be conducted.
[13]
The
applicant must allege and prove that he was in peaceful and
undisturbed possession of the property or right.
[6]
It is settled law that the applicant bears the onus of proving the
required possession and that he was unlawfully deprived of such
possession on a balance of probabilities. It is further trite that
the required possession which must be proved is not possession
in the
juridical sense.
[7]
Ms Katz
argued that because the applicant was off the farm most of the time
since acquiring the camper van, there cannot be dispossession.
This
submission cannot be correct. For possession to be protected by a
spoliatory remedy, it must consist of the
animus
–
the
intention of securing some benefit to the possessor, and of
detentio,
the
holding itself. Both these elements, especially
detentio,
will
be held to exist despite the fact that the claimant may not possess
the whole property or may not possess it continuously.
[8]
The argument, as advanced, is inconsistent with the nature of the
possession upon which the
mandament
van spolie
is based, which, in the case of immovable property, involves factual
control as well as the intention to derive some benefit from
the
land. The possession must be both peaceful and undisturbed, which it
has been held to mean possession that was sufficiently
stable and
durable for the law to take cognisance of it.
[9]
[14]
It
is trite that the mandament van spolie is a remedy rooted in the rule
of law, the purpose of which is to uphold public order
by precluding
resort to self-help and the taking of the law into one’s own
hands. The remedy is not available in cases of
threatened deprivation
of possession, but is confined to instances of actual dispossession.
A spoliation order will issue only
where unlawful spoliation is
established, namely a disturbance of possession without consent and
against the will of the possessor.
This requires a minimum threshold
of actual physical interference or deception sufficient to constitute
effective deprivation of
possession. The deprivation element entails
that the interference must be substantial enough to terminate or
frustrate the possessor’s
control over the property.
[10]
[15]
The
requirements for the mandament van spolie are trite: (a) peaceful and
undisturbed possession; and (b) unlawful deprivation of
such
possession.
[11]
The remedy is
possessory in nature and is aimed at the restoration of possession to
a party who has been unlawfully deprived of
prior peaceful and
undisturbed possession of property. What constitutes spoliation or
unlawful deprivation is a matter to be determined
on the facts of
each case.
[12]
It is common
cause that the applicant had left his cattle and truck as well as his
movable property inside the house, including
his firearms. His mere
travelling did not amount to absence of both the control (
corpus)
and
mental (
animus)
elements, nor did it signify an abandonment of possession.
[16]
The
defences against the
mandament
van spolie
are limited
[13]
, namely:
(a)
Denial of the facts in issue
;
the respondents did not deny the applicant’s possession or
dispossession;
(b)
Restoration is impossible
;
this is not applicable because the property has not been destroyed or
irreparably damaged;
(c)
Lapse of time
;
the applicant approached court as soon as he was denied access;
(d)
Counter-spoliation
;
the respondents did not file any counter-spoliation; and
(e)
Exceptio spolii.
There
is no mention made of any previous spoliation against the
respondents.
[17]
The respondents’ answering affidavit is silent on the incident
of 17 May 2026, when the farm
manager related the instruction from
the second respondent pertaining to the refusal of access to the
property and the changing
of locks. The respondents, however, rely on
the alleged assault perpetrated on Thabang as a repudiation of the
management agreement,
which repudiation they have accepted. The
respondents further contend that the spoliation application is
premature as the parties
could have followed the Rule 41A mediation
process. The second respondent took this submission as far as to
claim that the applicant’s
refusal to agree to mediation is
clear evidence of his unreasonableness and that seeking spoliatory
relief is opportunism on his
part. I disagree. It is clear that the
respondents have not raised any defence, and their attempt to
conflate issues of the merits
in the spoliation application is but an
obfuscation of the facts.
[18]
It is clear to me that the dispossession of
the applicant was without his consent. The fact that the respondents
denied the applicant
access and would only do so upon him signing an
exit agreement amounts to spoliation. The respondents’ reliance
on the purported
repudiation of the management agreement to deny the
applicant access is untenable because that is one of the matters that
will
be fully ventilated at arbitration. That will include whether or
not the applicant had assaulted Thabang.
[19]
As
stated hereinbefore, mandament van spolie is a possessory remedy,
offering temporary relief. It is also a robust and speedy remedy.
It
is not necessary at this stage to delve into the merits of the case
and enquire into the lawfulness of the possession. Of importance
is
for the despoiler, namely the first and second respondents, to
restore possession before all else. Borrowing from
Ngqukumba,
[14]
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 enquiry into the lawfulness of the possession of the person
despoiled.
[20]
It is a fundamental principle of our law
that a person may not take the law into his own hands. I am satisfied
that the applicant
has proven both his possession of the property and
his dispossession. The urgency is also supported by the fact that he
has left
his cattle and licenced firearms on the premises. I am
further satisfied that the applicant has made out a case for the
relief
sought in the notice of motion. There is no reason why his
possession cannot be restored forthwith
(ante
omnia).
[21]
I am left with the question of costs. The
applicant sought a punitive costs order on the basis that the
respondents were, in effect,
in contempt of the rule of law by
resorting to self-help and taking the law into their own hands. The
respondents remained adamant,
as appears from the contents of their
letters addressed to the applicant’s attorneys that they would
not grant the applicant
access to the farm unless he signs the exit
agreement, which contained a clause coercing him to agree to the
cancellation of the
management agreement. The respondents merely
asked that the matter be struck off the roll and the applicant to pay
costs on a scale
as between attorney and own client, steadfast in
their contention that the matter was not urgent, alternatively that
that the urgency
was self-created.
[22]
Costs
on an attorney and client scale are awarded when a court wishes to
mark its disapproval of the conduct of a litigant. Over
the years,
courts have awarded costs on an attorney and client scale to mark
their disapproval of fraudulent, dishonest or mala
fides conduct;
vexatious conduct; and conduct that amounts to an abuse of the
process of court.
[15]
It is
trite that costs on the attorney-and-client scale constitute an
extraordinary remedy, reserved for cases where a litigant’s
conduct is clearly vexatious and reprehensible. Such an award is
exceptional in nature, is punitive in effect, and reflects the
court’s strong disapproval of such conduct.
[16]
[23]
It is also trite that spoliation
applications are, by their nature, urgent. Having regard to the
circumstances of this case, and
the respondents’ failure to
advance any defence to the relief sought, a punitive costs order is
warranted.
[24]
In the result the following order is made:
1.
The application is urgent and the ordinary forms and service provided
for in the Uniform
Rules of Court are dispensed with.
2.
The first and second respondents are ordered to immediately restore
occupation and
possession of the Property described as the Farm
Warmbad Noord Number 1 and the Farm Warmbad Zuid Number 2 to the
applicant in
accordance with the provisions of the management
agreement.
3.
The first and second respondents are ordered to, forthwith and
simultaneously with
the restoration of possession referred to in
order 2 (above) hand to the applicant all keys, access cards, remote
controls, gate
keys and other means of access to the Property, and to
remove any locks, chains or other devices installed for the purpose
of excluding
the applicant from the Property and his home.
4.
That the first and second respondents, and all persons acting on
their instructions
or under their control, are interdicted and
restrained from interfering with, obstructing or disturbing the
applicant’s free
and undisturbed occupation and possession of
the Property, pending the final determination of the dispute between
the parties in
respect of the management agreement, whether by
arbitration in terms of clause 8 thereof or otherwise.
5.
That the respondents pay the costs of this application, jointly and
severally the one
paying the other to be absolved, on a scale between
attorney and client, which costs are to include costs attendant upon
the employment
of two counsel.
MC
MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
A
ppearances
For
the
applicant:
Adv.
P Ellis SC
Adv
AG Van Tonder
Instructed
by:
Manley
Inc
c/o
VDH Law
For
the respondents:
Adv.
A Katz
Instructed
by:
Francis
Thompson & Aspden Attorneys
c/o
Mjila & Partners t/a Mhlabeni Inc
[1]
A
camper vehicle (often called an RV, motorhome, or camper van) is a
motorized or towable vehicle equipped with living spaces,
including
sleeping areas, a kitchenette, and sometimes a bathroom.
[2]
1999
JDR 0450 (C) para 8.
[3]
1906 TS 120
at 122.
[4]
2012
(6) SA 67
(SCA) para 19.
[5]
2014
(5) SA 112
(CC);
2014 (2) SACR 325
(CC) para 21.
[6]
City
of Tshwane Metropolitan Municipality v Mamelodi Hostel Residents
Association & Others
[2012] JOL 28434
(SCA) para 6; see also
Algoa
Taxi Association v Cleary Park Property (Pty) Ltd and Others
[1998] JOL 1830
(SE) at 16.
[7]
Yeko
v Qana
1973
(4) SA 735
(A) at 739E.
[8]
Bennet
Pringle (Pty) Ltd v Adelaide Municipality
1977
(1) SA 230
(E) at 233G – H.
[9]
Fischer
and Another v Ramahlele and Others
2014 (4) SA 614
(SCA) para 22.
[10]
Bisschoff
and Others v Welbeplan Boerdery (Pty) Ltd
2021 (5) SA 54
(SCA) para 7.
[11]
Ibid
para 5.
[12]
Ibid
para 6.
[13]
G
Muller, R Brits, JM Pienaar and Z Boggenpoel
Silberberg
and Schoeman’s:
The
Law of Property
6ed (2019) at 349-355, para 13.2.1.6.
[14]
Ngqukumba
v Minister of Safety and Security and Others
2014 (2) SACR 325
(CC);
2014 (5) SA 112
(CC) Para 21.
[15]
Public
Protector v South African Reserve Bank
2019 (6) SA 253
(CC) Para 223.
[16]
Plastics
Convertors Association of SA on behalf of Members v National Union
of Metalworkers of SA & Others
(2016) 37 ILJ 2815 (LAC) para 46.