REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date: 3 September 2026 E van der Schyff
In the matter between:
BUTTERFLY CHANGE FOR CHILDREN NPC
CORNELIA ANNA !SABELLA OOSTHUIZEN
and
NUWE HOOP ONDERNEMINGS (PTY) LTD
PETRUS WILHELMUS OOSTHUIZEN
CASE NO.: 2026-200457
FIRST APPLICANT
SECOND APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
Delivered: This judgment is handed down electronically by uploading it to the electronic file
of this matter on CaseLines. In the event that there is a discrepancy between the date the
judgment is signed and the date if is uploaded to CaseLines, the date the judgment is
uploaded to CaseLines is deemed to be the date that the judgment is handed down.
JUDGMENT
VAN DER SCHYFF J
Introduction
[1] The applicants seek urgent interim relief pending the determination of Part B, in
which the validity, enforceability and registrability of a contemplated usufruct will finally be
determined .
[2] The respondents contend that the matter is not urgent and that no usufruct presently
exists because no limited real right was registered against the title deed of the property.
Urgency
[3] Rule 6(12) requires an applicant to set out explicitly the circumstances rendering a
matter urgent and why substantial redress will not be available at a hearing in due course.
In East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others
2011 JDR 1832 (GSJ) paras 5-9 , the Court emphasised that the decisive enquiry is
whether substantial redress can be obtained in the ordinary course. Delay is relevant, but
is not by itself dispositive. Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers
Publikasies (Edms) Bpk 1972 (1) SA 773 (A) at 782A-G, likewise recognises the
exceptional procedural character of urgent proceedings under Rule 6(12).
[4] The underlying dispute about registration of the usufruct had existed before August
2026. That dispute, standing alone, would not justify urgent enrolment. The material change
was the respondents' movement from disputing the applicants' legal entitlement to
exercising physical control over portions of the area occupied and used by Butterfly.
Directives were issued requiring rooms to be vacated. Physical interference followed on 15
and 18 August 2026, and the respondents declined to give an undertaking preserving the
status quo.
[5] The application was launched on 20 August 2026. The respondents admit that the
second respondent entered the rooms, removed the applicants' property from them and
made the rooms available for repairs. They dispute that the applicants exercised exclusive
possession, that the removal was forcible or unlawful, and that the rooms served the
purposes alleged by the applicants. The issuing of the directives and the removal of the
applicants' property are nevertheless common cause.
[6] The respondents deny any intention to evict the children or interfere with the baby
[6] The respondents deny any intention to evict the children or interfere with the baby
house. That denial is relevant, but it does not dispose of the urgency enquiry. The
respondents assert the right, as owners, to control and allocate structures within the
relevant area and have acted upon that understanding. If further unilateral changes occur
before Part B is heard, the factual position which that application is intended to determine
?
may materially alter. I am therefore satisfied that the applicants would not obtain substantial
redress in due course and that Part A should be entertained as urgent.
[7] The respondents' answering affidavit was delivered on 27 August 2026, after the
date fixed for its delivery in the notice of motion, and the applicants' replying affidavit was
necessarily delivered thereafter, outside the timeline originally prescribed. Both affidavits
have been had regard to in determining Part A, and it is appropriate that the condonation
granted below extend to that further non-compliance also.
Mandament van spolie
[8] Part A is brought both as a mandament van spolie, in respect of the possession of
which the applicants have already been deprived, and as an application for an interim
interdict, in respect of the threat of further interference. To succeed with a spoliation order
an applicant must show that it was in peaceful and undisturbed possession of the property,
and that it was unlawfully deprived of that possession, see Yeko v Qana 1973 (4) SA 735
(A) at 739O-H. The lawfulness of the applicant's underlying right of occupation is not
relevant to that enquiry, and a respondent who resorts to self-help is not absolved by the
fact that no violence was used.
[9] The applicants' possession of the rooms in Building 4 is not seriously disputed. The
respondents admit, in their answering affidavit, that the applicants used those rooms, that
the second respondent removed the applicants' property from them, and that he thereafter
retained control of the rooms. It is contended that this was done without force, in a
considerate manner, and that the space was in any event one of shared use. Neither
contention answers a claim in spoliation. The absence of violence does not convert self
help into lawful conduct, and use shared with another does not deprive a person of the
protection to which undisturbed possession, even if not exclusive, is entitled, see
protection to which undisturbed possession, even if not exclusive, is entitled, see
Rosenbuch v Rosenbuch and Another 1975 (1) SA 181 (W) 183F-G.
[1 0] I am satisfied that the applicants have established the requirements for a spoliation
order in respect of the rooms in Building 4 of which they were deprived on 15 and 18 August
2026. The order restoring their access in paragraphs 2 and 3 below is accordingly justified
on this basis, independently of the interim interdict considered next. That relief is final in
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effect, as spoliation relief always is, and is confined to the rooms actually taken. It does not
extend to the balance of the usufruct area, of which the applicants have at all times
remained in undisturbed occupation. Protection of that wider area, resting as it does on
apprehended rather than completed interference, is addressed separately below as a
matter of interim interdict, and is reflected accordingly in paragraph 4 of the order.
Interim relief
(11] An interim interdict preserves or restores the status quo pending the final
determination of the parties' rights, see National Gambling Board v Premier, of KwaZulu
Natal and Others 2002 (2) SA 715 (CC) para 49. The requirements are (i) a prima facie
right, though open to some doubt, (ii) a well-grounded apprehension of irreparable harm,
(iii) a balance of convenience favouring relief, and (iv) the absence of another satisfactory
remedy, see Reckitt & Colman SA (Pty) Ltd v SC Johnson & Son (SA) (Pty) Ltd 1995 ( 1)
SA 725 (T) 729I-730G.
[12] The issue at this stage is not whether Butterfly presently holds a registered usufruct
as a limited real right. The written sale agreement expressly contemplated Butterfly's
continued use of the defined area through a 20-year usufruct. Butterfly had occupied and
used that area for many years before the sale and continued to do so thereafter.
(13] The respondents contend that the contemplated usufruct was abandoned in favour
of a lease. Although the correspondence establishes that a lease was discussed, it also
records the second respondent enquiring whether clause 17 would have to be amended to
give effect to that change. No written lease or amendment of clause 17 was concluded. On
the papers as they presently stand, the respondents' contention does not displace the prima
facie contractual basis upon which Butterfly relies.
[14] The apprehension of further interference is not speculative. The respondents have
issued directives, moved property and asserted a right to control and reallocate structures.
issued directives, moved property and asserted a right to control and reallocate structures.
(15] The balance of convenience favours preserving the existing position. The first
respondent remains the registered owner and its final rights are unaffected. The interim
order merely prevents unilateral alteration of the applicants' occupation before Part B is
decided. Damages would not constitute an adequate alternative remedy.
Access to the defined area
(16] I am satisfied that the interim protection should extend to the area identified by the
parties as the usufruct area. That defined area is the subject of the contractual arrangement
and of the final relief sought in Part B. This relief is distinct in character from the restoration.
It does not rest on a finding that the applicants have been dispossessed of the area as a
whole, which they have not; it rests instead on the prima facie right and the apprehension
of harm found. It operates prospectively pending Part B.
Costs
(17] The applicants seek an order that the second respondent pay the costs of Part A.
The respondents, in turn, initially sought a punitive costs order de bonis propriis against the
applicants' legal representatives, alternatively an order that the applicants pay the costs on
the attorney and client scale. During argument counsel only sought an ordinary costs order.
[18] As is generally the position when interim relief is granted, the appropriate costs order
of Part A is better determined together with the costs of Part B, once the merits of the
underlying dispute, and with them the parties' good or bad faith, have been finally
determined.
ORDER
In the result, the following order is granted:
1. The applicants' non-compliance with the forms, service and time periods prescribed
by the Uniform Rules of Court, and the respondents' non-compliance with the timeline for
the delivery of their notice to oppose and answering affidavit set out in the notice of motion,
and the applicants' consequent late delivery of their replying affidavit, is condoned, and
Part A is heard as an urgent application in terms of Rule 6(12).
2. The first and second respondents are directed to restore to the applicants their
access to, and occupation and use of, the rooms in Building 4 of which the applicants were
deprived on 15 and 18 August 2026, together with the movable property removed
therefrom .
3. Any locks or other impediments placed by the respondents which prevent such
access are to be removed forthwith.
4. Pending the final determination of Part B, the first and second respondents are
interdicted and restrained from the following conduct in respect of the area depicted and
described in annexure "NOM1" to this order and the notice of motion, situated on the
Remaining Extent of Portion 7 (a Portion of Portion 3) of the Farm Klipdrift 90 JR,
Hammanskraal ("the usufruct area"):
4.1 evicting the applicants from the usufruct area otherwise than pursuant to an order of
court;
4.2 preventing the applicants, their staff, volunteers and persons authorised by them
from obtaining reasonable access to the usufruct area;
4.3 removing from the usufruct area property belonging to, possessed by or under the
control of the applicants without their consent or an order of court; and
4.4 materially altering, reallocating or rendering inaccessible any structure within the
usufruct area which was occupied or used by the applicants immediately before the
acts complained of in August 2026, save with the applicants' written consent or
pursuant to an order of court.
5. Part Bis postponed sine die.
6. The costs of the application are to follow the result of the main a
For the applicants:
Instructed by:
E VAN DER SCHYFF
JUDGE OF THE HIGH COURT
GAUTENG DIVISION , PRETORIA
Adv. J Delport
Delberg Attorneys Inc.
For the respondents :
Instructed by:
Date of the hearing:
Date of judgment:
Adv. MM Ratau
AHB Attorneys
1 September 2026
3 September 2026
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