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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case No: 2026-186634
In the matter between:
DR JAPIE JIMMY LA POORTA First Applicant
PASTOR SUSAN LA POORTA Second Applicant
And
THE APOSTOLIC FAITH MISSION OF SOUTH AFRICA First Respondent
MR SEBASTIAN LUCAS Second
Respondent
Coram: DA SILVA SALIE, J
Heard on: 21 August 2026
Delivered on: 21 August 2026
Summary:
Spoliation – mandament van spolie – peaceful and undisturbed possession disputed –
applicants alleged to have occupied property as employees or agents of Children's
Home – enquiry directed at factual possession immediately preceding dispossession
and not right or entitlement to possess – applicants established sufficient physical
control to constitute possession – respondents replacing locks without court order –
unlawful self -help – pending eviction proceedings determining right to occupation –
spoliation relief granted – possession restored – costs following result.
ORDER
1. The application is heard as one of urgency in terms of Rule 6(12), and the
applicants' non -compliance with the ordinary forms and service provided for in
the Uniform Rules of Court is condoned.
2. The first and second respondents are directed forthwith to restore to the first and
second applicants peaceful and undisturbed possession of Building C situated on
Erf 3[...].
3. The first and second respondents are directed to hand to the applicants, within
48 hours of the granting of this order, a complete set of keys to the locks installed
at Building C.
4. This order does not determine the applicants' right or entitlement to occupy the
property which remains to be determined in the eviction proceedings pending
between the parties under case number 2026-114283.
5. The first and second respondents shall pay the costs of this application (Scale
C), jointly and severally, the one paying the other to be absolved.
JUDGMENT
DA SILVA SALIE, J:
Introduction:
[1] This is an urgent application for a mandament van spolie. The applicants seek
restoration of their possession of Building C, situated on Erf 3[...], following the
replacement of the locks to the building by the respondents.
[2] The central question is whether the applicants were in peaceful and undisturbed
possession of Building C immediately before the locks were replaced. The respondents
contend that the applicants acted as employees or agents of the Children's Home and
that possession of Building C vested in the Children's Home, rather than in the
applicants personally. T hus t hey contend that it was not the applicants who enjoyed
possession of the building, accordingly they could not have lost possession thereof.
[3] The enquiry in spoliation proceedings is concerned with factual possession
immediately preceding the alleged dispossession, and not with the parties' respective
rights or entitlement to possess or occupy the property.
[4] The respondent dispute that the matter is urgent and deny that the applicants
were in possession of the property. On the respondents' version, they contend that the
Orphanage/Children’s home was in possession and control of Building C until February
2026 at which stage the property had undergone renovations. It alleges that the
renovations had ceased and that the property had been unoccupied. In May 2026, the
first respondent noticed that a lock had been appended to Building C and requested the
keys from the applicants as representatives of the Children’s Home and to open the
building. Thereafter, on 18 June 2026, when they did not get the keys, the first
respondent removed the lock and replaced it with different locks. The applicants
however maintain they were in possession of Building C and sought relief in terms of
which the respondents restore possession of Building C to the applicants.
[5] The fork in the road so to speak between the two versions is that the applicants
submit that the renovations were temporarily paused due to funding or administrative
timelines, however, that they remained in peaceful and undisturbed possession. The
respondents however contend that the state of the building, being sparsely equipped
and appearing vacant, meant that the building was unoccupied. The respondent
reasoned in their papers that since the Children’s Home was in possession of the
property it would have the locus standi to apply for relief. The respondents thus
distinguish the applicants as mere detentors and not possessors.
[6] However, the enquiry in spoliation proceedings is concerned with the factual
possession exercised immediately preceding the alleged dispossession. While the
possession exercised immediately preceding the alleged dispossession. While the
capacity in which physical control is exercised is relevant to this enquiry, the description
of the applicants as employees or agents does not on these facts determine whether
they exercised possession of Building C at the relevant time. They clearly did. It is not
in dispute that they had barricaded Building C and held the keys thereto. This was the
position for some time. In other words, they had physical control over the building
before they were deprived of access.
[7] Having considered the evidence on the papers as a whole, I am satisfied that
before the locks were replaced, the applicants exercised sufficient physical control and
possession over Building C to constitute peaceful and undisturbed possession for
purposes of the mandament van spolie. Their relationship with the Children's Home and
the capacity in which they originally came to occupy or control the building do not alter
the factual position which existed immediately before the locks were replaced and
together with all other relevant facts, they had been spoliated from their possession.
The requirements for spoliation relief have accordingly been established.
Eviction proceedings under Western Cape High Court case number: 2026-114283
[8] It is not without significance that the respondents had instituted eviction
proceedings against the applicants under case number 2026 -114283. The applicants'
right or entitlement to remain in occupation is to be determined in the pending eviction
proceedings. The respondents were not entitled to resort to self -help by depriving the
applicants of their possession. Restoration of possession must accordingly follow.
Urgency:
[9] In respect of urgency, having considered the circumstances giving rise to the
application and the nature of the relief sought, I am satisfied that the matter is urgent
and should be determined as such in terms of Rule 6(12).
Costs:
[10] In respect of costs, I see no reason why the ordinary costs principle may not
apply or that there is justification on the facts to depart therefrom. Costs must follow the
result. I am however not persuaded that the punitive costs order sought by the
applicants is warranted.
Order:
[11] In the premises and based on the papers and submissions before me, I make the
following order:
(i) The application is heard as one of urgency in terms of Rule 6(12), and the
applicants' non-compliance with the ordinary forms and service provided
for in the Uniform Rules of Court is condoned.
(ii) The first and second respondents are directed forthwith to restore to the
first and second applicants peaceful and undisturbed possession of
Building C situated on Erf 3[...].
(iii) The first and second respondents are directed to hand to the applicants,
within 48 hours of the granting of this order, a complete set of keys to the
locks installed at Building C.
(iv) This order does not determine the applicants' right or entitlement to
occupy the property which remains to be determined in the eviction
proceedings pending between the parties under case number 2026 -
114283.
(v) The first and second respondents shall pay the costs of this application
(Scale C), jointly and severally, the one paying the other to be absolved.
_____________________________
G. DA SILVA SALIE
JUDGE OF THE HIGH COURT
WESTERN CAPE PROVINCE
Appearances
For Applicants: Mr S Tshabalala
Instructed by: TT Mpshe Attorneys Inc.
For Respondents: Mr M Dewrance SC
Mr M Smit
Instructed by: Cliffe Dekker Hofmeyr Inc.