REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 2026-178881
In the matter between:
TEMBELA NTLOKO Applicant
And
FANISWA KEWUTI NKATI First Respondent
MPHO NKATI Second Respondent
Neutral citation: Ntloko v Nkati and Another (Case no 178881/2025) [202 6]
ZAWCHC … (20 August 2026)
Coram: LEKHULENI J
Heard: 29 July 2026
Delivered: 20 August 2026
Summary: Declaratory order – Respondents remov ing movable assets from the
applicant’s premises – Magistrate’s Court granting a final spoliation order against the
respondents – Respondents noting an appeal against the decision of the magistrate
– Applicant seeking a declaratory order that the spoliation order is not suspended by
the filing of the notice to appeal – Spoliation order granted by the magistrate final in
effect - Notice of appeal suspending the spoliation order of the Magistrate –-
Application dismissed.
JUDGMENT
LEKHULENI J:
Introduction
[1] This is an urgent, opposed application in which the applicant seeks an order
declaring that the final spoliation order granted by the Magistrate’s Court for the
District of Cape Town in case number 3773/2026 on 17 July 2026 (‘the spoliation
order’) is immediately executable and not suspended by the first and second
respondents' intended or noted appeal.
Material background facts
[2] The applicant and the first and second respondents’ son lived together as
partners at Parkland s North, Cape Town, Western Cape. They purchased a
sectional title unit jointly in August 2025. The applicant’s partner (the respondent’s
son) passed away on 14 May 2026, leaving a will appointing the first respondent as
the execut rix of his estate. Subsequent thereto, the applicant brought an urgent
application in this Court under case number 2026 -114724, seeking an order
declaring that she was married to the first and second respondents’ son by
customary union. The applicant’s application was dismissed on the grounds that she
cited the Kewuti family as the respondent and failed to cite either a natural person or
a juristic person as a respondent.
[3] On 4 July 2025, the first and second respondents attended the applicant’s
premises and, without a court order, removed a number of movable items, including
a refrigerator, washing machine, microwave, kettle, toaster, television, television
stand, camp chair, i ron, 2 beds, and a headboard, alleging that the property
belonged to their son . The applicant subsequently filed a criminal case for
housebreaking against the first and second respondents under case number
115/07/2026.
[4] The applicant stated that she was informed that her late partner had a last will
and testament that entitled the first respondent to the movable property in the
applicant's possession. However, as far as she was aware, no letters of executorship
had been issued appointing either the first or the second respondent as an executor,
and even if such letters had been issued, the respondents may not take the law into
their own hands without due process.
[5] On 7 July 2026, the applicant attended the Cape Town Magistrate’s Court
seeking a spoliation order. The applicant appeared in person and was assisted by a
clerk of th e civil court to file an application for a mandament van spolie . The
application was presented before a magistrate who granted an interim order with a
return date of 16 July 2026. The applicant thereafter approached the Sheriff of Kuils
River South to execute the order but was unsuccessful. The applicant later instructed
her attorneys of record to assist her in enforcing the spoliation order.
[6] After some correspondence between the applicant ’s and respondent’s
attorneys, the respondent s brought an application before the magistrate’s court on
09 July 2026 to suspend the spoliation order. Indeed, the court suspended the
operation of the interim order pending the hearing of the main application on 16 July
2026.
[7] On 16 July 2026, following the hearing, the magistrate set aside the
suspension order of the rule nisi and made the interim spoliation order final. The
applicant’s attorney subsequently instructed the Sheriff to enforce the final order. On
20 July 2026, the respondents filed a notice of appeal against the magistrate's
decision confirming the interim order. Accordingly, the Sheriff could not execute the
order due to the notice of appeal filed against the judgment of the court a quo.
order due to the notice of appeal filed against the judgment of the court a quo.
[8] On 22 July 2026, the applicant's attorney sent a letter to the first and second
respondents’ attorneys of record, advising them that the mere noting of an appeal, or
expressing an intention to do so, does not suspend the operation or execution of the
spoliation order. The letter gave the first and second respondents until the close of
business on 22 July 2026 to comply with the final order and to immediately restore
possession of the applicant’s movable property, failing which the applicant would
bring an urgent application. The first and second respondents failed to comply with
the letter; consequently, the applicant filed this application with this court.
[9] The respondents opposed the applicant’s application and contended that it
was not urgent. They argued that the alleged urgency pleaded by the applicant was
self-serving and self -created. On the merits, they asserted that the deceased was
the sole owner of the movable property removed from the house where the applicant
was residing with the deceased. The respondents further asserted that the applicant
was not legally married to the deceased. They stressed that the applicant attempted
to approach the court to establish the validity of the marriage, but that application
was dismissed.
[10] The respondents averred that the applicant and the deceased experienced a
breakdown in their relationship, prompting them to go their separate ways, each with
their own belongings. The respondents submitted that on 30 March 2026, the
applicant left the common home where she and the deceased were living. On 2 April
2026, the applicant returned to the common home to collect her clothes and all the
property she had purchased with her own money. The respondents stated that the
applicant removed all her belongings from the property and left the common home
completely. The applicant did not return to the property until after the deceased's
burial on 13 May 2026. According to the respondents, the applicant moved back to
the property after the first week of June 2026.
[11] On the execution of the spoliation order, the respondents contended that their
notice of appeal suspended the magistrate’s spoliation order and revived the
suspension order granted on 9 July 2026.
suspension order granted on 9 July 2026.
Principal submissions by the parties
[12] At the hearing of this appeal, Ms Murote , counsel for the applicant,
submitted that the applicant seeks a declaratory order confirming that, under the
common law, the spoliation order granted by the magistrate is not suspended by
the respondents’ notice of appeal. Counsel submitted that declaratory relief is
necessary because the Sheriff cannot execute the order in the face of the
respondents’ notice of appeal. On the question of urgency, Ms Murote contended
that the matter is urgent. Counsel argued that the applicant has been denied
access to her movable assets and has been sleeping on the floor after the
respondents removed her bed and other essential items. Counsel submitted that
the applicant was compelled to leave her home and live with her parents because
the respondents removed her bed and other essential furniture. Ms Murote
implored the court to grant a declaratory order.
[13] On the other hand, Mr Mbenyane, counsel for the respondents, argued that
the matter is not urgent. Mr Mbenyane submitted that the urgency pleaded by the
applicant was self -created. Counsel pointed out that the applicant, who was legally
represented at all times , ought to have brought the application in a timely manner.
According to Mr Mbenyane, on her own version, the applicant became aware of the
notice of appeal that triggered the present application on Monday, 20 July 2026,
yet delayed for a week before approaching the court. Mr Mbenyane contended that
the urgency alleged by the applicant amounts to harassment, a means of
frustrating the respondents, and an attempt to use the court as a tool. In his
submission, he argued that the urgency is self -created and self-serving.
[14] On the merits of the application, counsel was emphatic that the noting of the
appeal suspend ed the spoliation order issued by the magistrate. Counsel also
argued that on 4 June 2026, the respondents removed the movable property
ordinarily situated in the house owned by the applicant and the respondents’
deceased son. According to counsel, the respondents have a will that gives them the
deceased son. According to counsel, the respondents have a will that gives them the
residue of the deceased's estate and authorises them to administer the said property
or estate. Counsel urged the court to dismiss the application with costs.
Issues to be decided
[15] From the above discussion, this court is enjoined to determine whether the
respondents’ notice of appeal suspend ed the spoliation order granted by the
magistrate.
Discussion
[16] The respondent impugned the urgency of this application. In terms Rule 6(12)
of the Uniform Rules of Court, an applicant is required to set out the circumstances
that justify the hearing of the application on an urgent basis and the basis on which
she contends she would not obtain substantial redress at a hearing in due course.
Rule 6(12)(b) of the Uniform Rules mandates two requirements of an applicant in an
urgent application. First, the applicant must explicitly set forth the circumstances she
avers render the matter urgent, and, secondly, the reasons she claims she would not
be afforded substantial redress at a hearing in due course.1
[17] In this matter, the court granted an order against the respondents. The
applicant stated in her affidavit that she has been without a bed, a refrigerator,
cooking facilities, and a washing machine since 4 July 2026, after the respondents
dispossessed her of these items. As noted by the applicant’s counsel, each day the
spoliation order remains unenforced , the harm is compounded. The applicant gave
the respondents an opportunity to comply voluntarily with the court order by 22 July
2026, before resorting to litigation, but the respondents failed to comply. In my view,
the applicant’s reconciliatory conduct in giving the respondents time to comply with
the order should be encouraged rather than treated as a delay. The respondent s’
suggestion that the delay was self -created is fundamentally flawed and
unsustainable.
[18] Moreover, spoliation applications are, by their very nature, ordinarily treated
as urgent, precisely because the remedy loses its purpose if it is not dealt with
1 East Rock Trading 7 (Pty) and Another v Eagle Valley Granite (Pty) Ltd and Others (11/33767)
[2011] ZAGPJHC 196 (23 September 2011) paras 6-7.
promptly. In my view, this matter is urgent and warrants th is court's immediate
attention.
[19] As to the merits, it is trite that, in terms of the common law rule of practice, the
execution of all judgments is suspended upon the noting of an appeal; that is to say,
the judgment cannot be carried out, and no effect can be given thereto, whether the
judgment be one for money (on which a writ can he issued and levy made) or for any
other thing or for any form of relief granted by the Court appealed from. The
foundation of the common-law rule as to the suspension of a judgment on the noting
of an appeal is to prevent irreparable damage from being done to the intending
appellant.2
[20] To obtain leave to execute, the party in whose favour the judgment was given
must make a special application and satisfy the requirements of s 78 of the
Magistrates' Courts Act 32 of 1944 (‘the Magistrates’ Courts Act’) in the Magistrate's
Court, and of s 18(1) read with s 18(3) of the Superior Courts Act 10 of 2013 (‘the
Superior Courts Act’) in the High Court.
[21] However, there are exceptions to this rule. In terms of s 18(2) of the
Superior Courts Act, t he operation and execution of a decision that is an
interlocutory order not having the effect of a final judgment, which is the subject of an
application for leave to appeal or of an appeal, is not suspended pending the
decision of the application or appeal. In other words, an application for leave to
appeal does not suspend the operation of an interlocutory order. Furthermore, in
High Court practice, s 16(3) of the Superior Courts Act prohibits appeals against any
judgment or order in connection with interim relief in matrimonial matters made under
Rule 43 of the Uniform Rules of Court . The question that arises is whether a
spoliation order granted by the magistrate falls within this exception. This is the
question I turn to consider hereunder.
[22] At the hearing of this matter, Ms Murote, counsel for the applicant, submitted
[22] At the hearing of this matter, Ms Murote, counsel for the applicant, submitted
that the spoliation order granted by the magistrate was restorative in nature and was
2 South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534
(A) at 544H–545A; Reid and Another v Godart And Another 1938 AD 511 at 511.
not suspended by the noting of the application for leave to appeal. Counsel referred
the Court to a decision from this division in Cummings v Lambrick ,3 in which it was
held that a spoliation order is inherently restorative and interim in nature and that its
purpose is the swift reinstatement of the status quo ante and the discouragement of
self-help. The court noted that the mere noting of an appeal or the intention to note
an appeal does not suspend the operation of a spoliation order. To permit otherwise,
the court found, would defeat the very purpose of this remedy.
[23] I agree with the court's views to the extent that an interim spoliation order is
not suspended by the subsequent noting of an appeal against it. I must, however,
mention that a spoliation order that is final in effect is suspended by th e noting of an
application for leave to appeal or by the noting of an appeal . This conclusion is
fortified by the decision of the Supreme Court of Appeal (‘the SCA’) in Gauteng
Province Driving School Association v Amaryllis Investments (Pty) Ltd ,4 in which the
SCA noted that the noting of an appeal in that matter against a spoliation order had
the effect of suspending execution of the spoliation order (see Reid & Another v
Godart & Another 1938 AD 511 at 513).
[24] As I see it, a spoliation application may take one of two forms: it may be final
in effect, or interlocutory in effect. The former arises where the application is
brought in circumstances where there is no underlying dispute between the parties.
This typically occurs where, without any prior history, the spoliator deprives the
possessor of his or her possession. In such circumstances, an order directing the
restoration of possession before all else is an order with the effect of a final
judgment.5
[25] Put differently, a spoliation order obtained independently of any underlying
action, as in this matter, is final in effect and therefore appealable. An application
action, as in this matter, is final in effect and therefore appealable. An application
for leave to appeal, or the noting of an appeal, suspends the operation of that
spoliation order . In Gauteng Province Driving School Association and Others v
3 [2025] ZAWHC 323 (18 December 2025) para 7.
4 [2012] 1 AII SA 290 (SCA) para 4.
5 Metchem Steelpoort CC v Eskom Holdings SOC Ltd 2 219 JDR 1633 (GJ) para 20.
Amaryllis Investments (Pty) Ltd and Others (supra) Ponnan JA, writing for the
unanimous Court, stated:
‘I pause to record that although a spoliation order does not decide what, apart from
possession, the rights of the parties to the property spoliated were before the act of
spoliation and merely orders that the status quo be restored, it is to that extent a final order
and is therefore appealable (Nienaber v Stuckey 1946 AD 1049 at 1053)’. 6 (emphasis
added)
[26] The second form of a spoliation order , in my view, arises where there is an
underlying dispute between the parties, and the order is granted merely as interim,
interlocutory, or temporary relief pending the resolution of that dispute. A spoliation
order granted in such circumstances is interim in nature. It does not purport to
finally determine the merits of the causa between the parties. It is like an interdict
which is granted pendente lite , which does not have the effect of a final judgment
as envisaged in s 8 3(b) of the Magistrates' Courts Act. Such relief or interdict
serves as a step in the proceedings between the parties.
[27] Put plainly, a spoliation order granted pending the determination of the
underlying dispute is interlocutory in effect and is ordinarily not appealable. To this
end, I share the views expressed by Van der Linde J in Metchem Steelpoort CC v
Eskom Holdings SOC Ltd,7 that where there is in fact an underlying dispute between
the parties as to the entitlement to possession of a thing, spoliation relief is by
definition only temporary or interim or interlocutory. The learned justice observed that
it would be sophistry to suggest that, in such a case, spoliation relief is final, on the
basis that at least it decides the issue of entitlement to possession "finally", albeit
that actually the court that decides the entitlement to possession down the line will
do so finally. In my view, what is critical is the effect of the order on the parties or the
issues in the suit.
issues in the suit.
[28] The principle that a spoliation order may provide interim relief was clearly
articulated by the SCA in Eskom Holdings SOC Ltd v Masinda ,8 where the Court
noted:
6 At para 3.
7 2019 JDR 1633 (GJ) para 26.
8 (1225/2018) (2019) ZASCA (18 June 2019).
‘[8] The mandament van spolie (spoliation) is a remedy of ancient origin, based upon the
fundamental principle that persons should not be permitted to take the law into their own
hands to seize property in the possession of others without their consent. Spoliation provides
a remedy in such a situation by requiring the status quo preceding the dispossession to be
restored by returning the property ‘as a preliminary to any enquiry or investigation into the
merits of the dispute’ as to which of the parties is entitled to possession. Thus a court
hearing a spoliation application does not require proof of a claimant’s existing right to
property, as opposed to their possession of it, in order to grant relief. But what needs to be
stressed is that the mandament provides for interim relief pending a final determination of
the parties’ rights , and only to that extent is it final. The contrary comment of the full court
in Eskom v Nikelo is clearly wrong. A spoliation order is thus no more than a precursor to an
action over the merits of the dispute.” (emphasis added)
[29] The excerpt demonstrates that where there is an underlying dispute between
the parties, spoliation relief is merely interim, interlocutory or temporary. This is
because the merits of the underlying dispute have yet to be resolved, and spoliation
relief, by definition, does not purport to resolve the merits definitively. The transient
nature of spoliation relief was alluded to in Venter and Others v Van Rensburg and
Others,9 in these terms:
‘[33] Practically, as discussed in Cronshaw & Another v Coin Security Group (Pty) Ltd [1996]
ZASCA 38; 1996 (3) SA 686 (A) 9[1996] 2 All SA 435) at 690DE's case at 1215, an appeal
against the grant of a temporary interdict order would often be inconsistent with the very
purpose of this remedy which is to protect the right of the complainant party pending an
action or application to be brought by him to establish the rights of the respective parties
(See also
(See also
Davis v Press & Co [19 44 CPD 108] at 119 (Fagan J)). As it is similar with a Spoliation
order, basically a speedy remedy, intended to prevent the continuous harm suffered by the
Applicant by remedying, at once, the effects of an unlawful action pending the resolution of
the merits of their dispute. So the appeal against a spoliation order would defeat the very
purpose of the remedy. (emphasis added)
9 (2121/2017) [2017] ZAGPPHC 906 (11 April 2017).
[30] Reverting to the facts of the present matter, it is evident that the spoliation
order granted by the magistrate is final in effect and therefore appealable. There is
no underlying dispute between the parties regarding the applicant’s entitlement to
possession of the movable assets of which she was despoiled. The applicant
approached the court after being dispossessed, and the magistrate restored the
status quo ante by granting the spoliation order. Once the respondents noted their
appeal, the applicant ought, in my view, to have approached the court in terms of s
78 of the Magistrates’ Courts Act to bring the suspended order into operation . For
completeness, s 78 of the Magistrates’ Courts Act provides:
‘Where an appeal has been noted or an application to rescind, correct or vary a judgment
has been made, the court may direct either that the judgment shall be carried into execution
or that execution thereof shall be suspended pending the decision upon the appeal or
application. The direction shall be made upon such terms, if any, as the court may determine
as to security for the due performance of any judgment which may be given upon the appeal
or application.’
[31] As foreshadowed above, the order granted by the magistrate court was final
in effect and was appealable. As soon as an appeal was noted, the court a quo
could, on application, direct that execution shall issue or that there shall be a
suspension of execution. Significantly, if neither party to a pending appeal applies for
the alternative orders provided for in s 78 and neither of those orders is made, the
common law rule that the execution of a judgment is automatically suspended upon
the noting of an appeal takes effect, with the result that, pending the appeal, the
judgment cannot be carried out and no effect can be given to it.
Conclusion
[32] Consequently, I am of the view that the noting of the appeal indeed
suspended the magistrate’s spoliation order. I am mindful that the purpose of the
suspended the magistrate’s spoliation order. I am mindful that the purpose of the
spoliation remedy is to restore factual possession to a person who has been
unlawfully dispossessed of property or subjected to an unlawful interference in rights
that such a person exercises. 10 I am also cognisant that the spoliation remedy
enforces the rule -of-law principle in s 1(c) of the Constitution as it serves as a
bulwark against self -help.11 However, the magistrate's spoliation order wa s final in
effect and was suspended when the notice of appeal was filed. To execute on the
magistrate’s order, the applicant had to invoke s 78 of the Magistrates ’ Courts Act
and seek leave from the court a quo .
Costs
[33] The respondents remain in possession of the assets they unlawfully
dispossessed the applicant of. The magistrate heard argument from both parties
and found that the applicant had been unlawfully deprived of her property. The
respondents continue to benefit from their unlawful conduct. Conduct of this nature
is fundamentally inconsistent with the principles that undergird our constitutional
values. In the circumstances, I am of the view that each party should bear its own
costs.
Order
[34] Given all these considerations, the following order is granted:
34.1 The applicant’s application is hereby dismissed.
34.2 Each party is ordered to pay its own costs.
____________________________
LEKHULENI JD
JUDGE OF THE HIGH
COURT
10 South Cape Corporation (Pty) Ltd v Engineering Services (Pty) Ltd 1977 (3) SA 534 (A) at 544H-
546A.
11 Marima and Another v Makofane and Another (2025/132162) [2025] ZAGPJHC 1080 (2 October
2025) para 40.
APPEARANCES
For the Applicant: Adv D Murote
Instructed by: Katherine Barnard and Associates
For the Respondent: Adv AA Mbenyane
Instructed by: Lingani and Partners Attorneys Inc