SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
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: 09 September 2026
Delivered on: 11 September 2026
Summary:
Application for leave to appeal - Mandament van spolie - Possession - Distinction
between possession and mere detention - Applicants exercised physical control over
building while also acting as employees, managers and trustees of separate juristic
person - Principle in Mbuku v Mdinwa 1982 (1) SA 219 (TkS) considered - Animus
possidendi requires intention to hold property for one's own benefit and not merely for
another - Benefit need not be proprietary or financial - Applicants' longstanding pastoral,
community and related activities on property constituted sufficient benefit - Possession
of keys alone is not determinative - Applicants managed access and respondents
repeatedly sought keys and ultimately removed and replaced lock to gain access -
Evidence considered cumulatively established effective physical control - No reasonable
prospect that another court would reach a different conclusion - No compelling reason
for appeal - Leave to appeal refused.
ORDER
1. The application for leave to appeal is dismissed.
2. The first and second respondents are ordered to pay the costs of the application
for leave to appeal, jointly and severally, the one paying the other to be absolved.
JUDGMENT
DA SILVA SALIE, J:
Introduction
The urgent restoration order granted:
[1] This is an application for leave to appeal against the judgment and order of this
Court delivered on 21 August 2026, on the urgent roll, and which directed restoration to
Pastors Japie and Susan La Poorta (“the applicants”) , peaceful and undisturbed
possession of Building C situated on Erf 3[...] by ordering the Apostolic Faith Mission of
South Africa and Mr Sebastian Lucus (“the respondents”) to hand to the applicants,
within 48 hours of the granting of the order, a complete set of keys to the locks which
respondents have installed at Building C.
[2] The application is brought in terms of Section 17(1) of the Superior Courts Act 10
of 2013. Leave is sought to the Supreme Court of Appeal, alternatively to the Full Court
of this Division. The respondents contend that another court would reasonably conclude
that the applicants had not established peaceful and undisturbed possession of Building
C immediately before the locks were change d as any physical control which they may
have exercised did not constitute possession for the purposes of spoliation relief.
Capacity of Possession and control by Pastors La Poorta:
[3] The main ground advanced concerns the capacity in which the applicants
exercised control over Building C. The respondents contend that, insofar as the
applicants previously held the keys and exercised control over the building, they did so
as employees, managers or trustees of the Susan La Poorta Children's Home ("the
Children's Home"), a separate juristic person. They contend that the applicants were
accordingly no more than agents or detentors and could not themselves invoke the
mandament van spolie.
[4] The remaining grounds concern whether the applicants exercised sufficient
physical control over Building C, the reference in the judgment to the building having
been barricaded, and the contention that the judgment establishes a precedent that the
mere retention of keys to an unoccupied building constitutes possession for purposes of
the mandament.
Were Pastors La Poorta mere detentors of the building?
[5] A person who exercises physical control over property solely on behalf of
another, without the requisite intention or interest in holding it, may be a mere detentor
rather than a possessor entitled personally to invoke the mandament. The capacity in
which physical control is exercised is therefore also relevant to the enquiry.
[6] The distinction between possession and mere detention was explained in Mbuku
v Mdinwa 1982 (1) SA 219 (TkS) where at 223, the Transkei Supreme Court held that
an agent who has no interest in the property which he holds for his principal, or derives
no benefit from holding it, is not entitled to claim the mandament van spolie. The animus
possidendi required to transform detention into possession is no more than the intention
to hold the thing in question for one's own benefit and not for another. Conversely,
where a person holds the thing not for himself but for another, that person is merely a
custodian and the person on whose behalf it is held remains the possessor. The
question therefore is not resolved merely by describing the applicants as employees,
managers or trustees.
[7] The principle recognises that an employee or agent who exercises physical
control solely on behalf of another, without any interest in or benefit from such control
beyond that representative capacity, is a mere detentor. It does not, however, follow
that the requisite benefit must take the form of a proprietary or financial interest in the
property. The enquiry remains whether, having regard to the nature and purpose of the
property. The enquiry remains whether, having regard to the nature and purpose of the
control actually exercised , the person held the property with the intention of securing
some benefit for himself or herself, rather than merely exercising custody on behalf of
another.
[8] On the facts of this matter, I am not persuaded that the applicants' control of
Building C was exercised solely for the benefit of the Children's Home or that they were
merely its physical instruments. Their pleaded case went beyond the performance of a
discrete function as employees or agents. They alleged that they exercised " full,
exclusive factual and physical control" over Building C and the other structures identified
in the founding affidavit, held the keys, were responsible for the security and
maintenance of the buildings and bore responsibility in relation to the municipal services
associated with them. More particularly, in relation to Building C, they alleged that they
held the keys, managed entry and exit and exercised "effective, exclusive control over
access to the premises". The applicants’ pleaded case was that Building C formed part
of their longstanding activities on the property and was used as a core operational
facility for the Children’s Home and associated community projects in which they were
directly involved. Clearly t heir involvement with the property was not confined to the
performance of duties as employees or representatives of the Children’s Home.
Can it be held that Pastor La Poortas also derived benefit from their control of the
building:
[9] The first applicant is an ordained pastor of the Apostolic Faith Mission and had
served it in various leadership capacities for many years. The applicants’ activities on
the property also included their pastoral duties and their involvement in the local
congregation which they had established . The respondents themselves acknowledged
that the applicants’ presence and activities on the property extended to both the
Children’s Home and the church. Against that background, the La Poortas’ involvement
in the associated community activities was not merely rep resentative of the Children’s
in the associated community activities was not merely rep resentative of the Children’s
Home but formed part of their broader pastoral and community involvement on the
property. It may reasonably be inferred that their continued involvement in those
activities constituted a benefit to the m in the possessory sense. In my view, this
constituted a sufficient benefit for the purposes of the animus possidendi contemplated
in Mbuku.
[10] More particularly, in relation to Building C itself, the first applicant stated that
immediately before the respondents' conduct complained of the applicants held the
keys, managed entry and exit, and exercised "effective, exclusive control over access to
the premises". The case advanced in the founding affidavit was therefore one of actual
and effective factual control by the applicants themselves, and not merely that they
possessed a key to premises controlled by another.
[11] The respondents disputed that control. Their own evidence, however, is material
to the enquiry. They recorded repeated attempts during May and June 2026 to obtain
the keys to Building C from the applicants. On 11 June 2026, the second applicant was
informed that, if the keys were not made available, the second respondent had been
instructed to remove the existing lock "in order to gain access" and install a new lock.
The applicants did not surrender the keys, and the respondents thereafter caused the
existing lock to be removed and replaced.
[12] That evidence is difficult to reconcile with the contention now advanced that the
first respondent at all material times exercised unrestricted physical control over
Building C. Indeed, the answering affidavit itself explains the alleged "unfettered
access" on the basis that the first respondent could obtain access by removing the
security gate at the back of the building or by removing the padlock. The ability to obtain
access by removing the very security measures by which access was controlled does
not establish that the Apostolic Faith Mission was thereby already exercising
possession of the premises. In other words, having the ability to break/remove the lock
to get in is not the same as already possessing the building.
[13] I equally find the first respondents’ argument problematic that, because the
[13] I equally find the first respondents’ argument problematic that, because the
applicants exercised control in connection with the activities of the Children's Home, that
control necessarily amounted to mere detention. The evidence must be considered
holistically. The applicants were not merely employees entrusted temporarily with a key
in the performance of a discrete function. Their pleaded case was one of longstanding
control of the property, management of access to Building C and responsibility for its
security and maintenance. The respondents themselves alleged that the applicants'
presence on the property had historically been in various capacities associated both
with the Children's Home and the church. As Mr. Tshabala la submitted, Pastors Japie
and Susan La Poorta were the “heart and soul of the Susan La Poorta Children’s
Home”.
[14] I accordingly remain unpersuaded that the description of as employees,
managers or trustees displaces the factual possession established on the papers. In my
view, another court would not have a reasonable prospect of finding, on these facts, that
the applicants were merely detentors and consequently lacked possession for purposes
of the mandament.
Physical control
[15] The second arrow in the respondent’s bow is that the applicants did not exercise
sufficient physical contro l. It is correct that Building C was not being occupied
residentially and that the respondents alleged that renovation work had ceased and that
the building stood vacant. They alleged that the building was empty, unfinished and
deteriorating.
[16] Physical occupation of a building on a continuous basis was not, however, the
test applied in the judgment. The question was whether the applicants exercised
sufficient factual control over Building C immediately before the alleged dispossession.
Their evidence was that they held the keys and controlled access. The significance of
the keys lay not in their mere possession, but in what the evidence disclosed about
control of access to the building. The respondents' own evidence concerning their
attempts to obtain those keys and their eventual removal of the lock provided objective
support for the conclusion that the applicants exercised effective control over access
immediately before the locks were changed.
[17] The respondents' reliance upon disputes of fact does not require a different
conclusion. The application of the rule in Plascon -Evans does not require a court to
accept, as a fact, a respondent's legal characterisation that it was "in possession". The
underlying facts concerning access, the keys, the lock and the circumstances in which it
was removed remained to be evaluated in determining whether the legal requirement of
possession had been established.
What is the effect of the possession of physical keys to the building:
[18] During argument Mr. Smit submitted that the applicants’ possession of the keys
did not, in itself establish possession of Building C. That proposition may be accepted.
However, the significance of the keys cannot be considered in isolation from the
evidence concerning the control of access to the building. I have considered the
evidence cumulatively . It is that evidence, rather than the mere possession of keys,
which supported the finding that the applicants exercised effective physical control over
Building C immediately before the dispossession.
[19] I am similarly not persuaded by the contention that the judgment establishes a
precedent that the mere retention of keys to an unoccupied building constitutes
sufficient possession for purposes of the mandament van spolie. That is not what I held.
The finding of possession was made upon an assessment of the evidence as a whole,
including the applicants' control of access, their possession of the keys, the security of
the premises and the circumstances immediately preceding the respondents'
replacement of the lock.
[20] The suggested precedent accordingly does not arise from the judgment and does
not constitute a compelling reason contemplated in s 17(1)(a)(ii) of the Superior Courts
Act.
Appealability
[21] Although the order expressly left the applicants' ultimate right or entitlement to
occupy the property for determination in the eviction proceedings, it is unnecessary for
present purposes finally to determine whether that feature affects the appealability of
the order. I have assumed in favour of the respondents that the order is appealable and
considered whether the requirements of s 17(1) have been met.
Conclusion
[22] An application for leave to appeal is not concerned with whether another court
might express aspects of the reasoning differently. The question under s 17(1)(a)(i) is
whether the appeal would have a reasonable prospect of success. Having reconsidered
the findings challenged by the respondents, and in particular their submission that the
applicants were mere detentors, I am not persuaded that another court would have a
reasonable prospect of reaching a different conclusion.
[23] Nor has a compelling reason been established why the appeal should be heard
as contemplated in s 17(1)(a)(ii).
[24] The application for leave to appeal must accordingly be refused.
Order
[25] The following order is made:
(i) The application for leave to appeal is dismissed.
(ii) The first and second respondents are ordered to pay the costs of the
application for leave to appeal, jointly and severally, the one paying the
other to be absolved.
_______________________
GAYAAT DA SILVA SALIE
JUDGE OF THE HIGH COURT
WESTERN CAPE DIVISION
Appearances
For Applicants: Mr S Tshabalala
Instructed by: TT Mpshe Attorneys Inc.
For Respondents: Mr M Smit
Instructed by: Cliffe Dekker Hofmeyr Inc.