CIVIL LAW

Facts: The applicant is a manufacturer of emulsified meat products, including polony. One of its brands is the Thompson’s Tasty Meats brand. Thompson’s meat products are sold by Shoprite, a national supermarket chain. The respondent (Hadebe) claimed that he purchased a two-kilogram Thompson’s Family Value chicken polony from Shoprite. He claimed, further, that his nine children, wife, and brother ate of the polony and became ill and that one of his children died directly because of eating the polony, which was allegedly rotten and not fit for human consumption. The second respondent (EFF) took up Hadebe’s cause, and both began publishing allegations on popular social media platforms such as Facebook and X, calling, essentially, for a boycott of Thompson’s products and for justice for both the child who died and Hadebe and decrying the quality of the products manufactured by the applicant. The applicant regarded those repeated statements as being untrue and defamatory of it and brought urgent application proceedings against the respondents.

Application: A consent order was taken exactly in the terms set out in the notice of motion, which included the interim relief sought by the applicant. The applicant now seeks confirmation of the rule nisi with a punitive costs order against the EFF, while the EFF seeks the discharge of the rule and an order that its costs be paid by the applicant.

Discussion: There were no demonstrable, objective facts that could be referenced, other than the purchase of the polony. There was contradictory information about when the polony was consumed. There was no evidence that the deceased child had eaten the polony. There was no proof that the polony was contaminated. There was no proof that the polony had caused the death of a child. There was no proof that Hadebe’s child had died. The applicant did not accept that there was anything wrong with the product that Hadebe had purchased. Hadebe still had some of the polony left and handed it over to the applicant to permit a laboratory analysis of it to occur. That testing revealed that the pathogen load in the complaint sample was within the normal range and there were no distinct indicators that it was contaminated with bacteria or toxins that would have caused an illness. Despite the confusing narrative advanced by Hadebe, it is unfortunately true that a young girl with whom he had an association did, in fact, pass away. The deceased child was, however, not his child. And she did not die from eating contaminated polony manufactured by the applicant. Her official death certificate, which was before the court, records her cause of death to be due to "natural causes".

Findings: The applicant has a clear right to prevent falsehoods about the quality of its products from taking root in the community and from being published. It has already suffered an injury in the false allegations made by the EFF linking it to the death of the child and it has no other satisfactory remedy at its disposal to protect itself. The applicant has established the requirements for a final interdict. The EFF’s conduct was not reasonable in the circumstances. The granting of a final interdict will be justified where a respondent has palpably demonstrated that it has no defence to the allegations made about its conduct. No defence has been established by the EFF. The applicant is entitled to the confirmation of the rule granted, save in one respect. The relief granted at paragraph 3.1.2 of the order has not been established. There was no evidence to show that there was any physical threat made to the persons associated with the applicant or the property of the applicant.

Order: The rule nisi is confirmed against the second respondent, save for paragraph 3.1.2 thereof. The second respondent shall pay the applicant’s costs on the scale of attorney and client, such to include the costs of senior counsel.

MOSSOP J

Facts: The appellants are trustees of the Rhino Pride Foundation (the Trust), a public charitable inter vivos trust (created during the lifetime of a person) established in terms of the Trust Property Control Act 57 of 1988, and registered as a non-profit and public benefit organisation. Dr Pretorius (the respondent), a specialist wildlife veterinarian, is the founder and a trustee of the Trust. The main objects of the Trust are the creation of a fund to put an end to the poaching of rhinos for their horns; the advancement and protection of rhinos in South Africa; and the provision of medical care and facilities to rhinos, including emergency relief and rescue. In 2022, in terms of clause 11 of the trust deed, the appellants adopted a resolution by majority vote, requiring the respondent to resign from her office with immediate effect.

Appeal: The respondent, in her personal capacity and as a trustee, applied to the High Court for an interdict to prevent the appellants from enforcing the impugned resolution, pending the finalisation of an action to be instituted to set aside that resolution. The appellants filed a counter-application for an order that the impugned resolution be enforced, alternatively, that the respondent be removed from office as a trustee. The High Court granted the main application and dismissed the counter-application. This appeal concerns the proper construction of a clause in the trust deed, which provides that the office of a trustee shall be vacated when the remaining trustees unanimously require the resignation of any trustee.

Discussion: The parties had a good relationship until late 2021 when the appellants became concerned about the respondent’s administration of the Trust and management of the farm, including that her fiancé became involved on the farm. The foreign donor also became concerned and this placed future donations at risk. Despite agreeing to take a temporary leave of absence, in a remarkable volte-face, the respondent obtained an ex parte order, based on statements which the judge later found were false, and the ex parte order was set aside. The decision to replace the respondent, the evidence shows, was not taken arbitrarily. There were compelling reasons for her removal and she was treated fairly. The respondent’s section 34 constitutional right to have a dispute that can be resolved by the application of law decided by a court, was not infringed.

Findings: Section 20(1) of the Act empowers a court to remove a trustee from office, if it is in the interests of the Trust and the beneficiaries. Section 20(1) does not state that this power is exclusive to the court. Nor is there any reason to read such limitation into section 20(1). Thus, section 20(1) does not detract from the principle that a founder may reserve the right to remove a trustee, or may confer it on some other person, if that right is stipulated in the trust instrument. Clause 11 provides an expeditious method for the removal of a trustee, in the interest of the Trust and its beneficiaries. It obviates the lengthy delays, exorbitant costs and uncertainties associated with litigation. The appellants have established that the resolutions that the respondent vacate the office of trustee, and that their selected replacement be appointed to that position, are valid and enforceable. The removal of the respondent as trustee is plainly in the interests of the Trust and its beneficiaries.

Order: The appeal succeeds with costs, which shall be paid by the respondent in her personal capacity. The order of the High Court is set aside and replaced with an order dismissing the application and where the counter-application succeeds, with the resolutions taken at the meeting of the trustees being valid and enforceable.

SCHIPPERS JA (NICHOLLS JA, MOTHLE JA, UNTERHALTER JA and BAARTMAN AJA concurring)

Facts: The dispute is about series of articles that were published by the respondents about the King of eSwatini, various of the eSwatini government’s ministers, and certain public officials, all of which the eSwatini government contends are defamatory of the King of eSwatini and his entire government. The articles were published by Swaziland News on its website and on social media platforms. The Minister alleges that the articles refer to the King, members of the royal family, various ministers and/or public officials the eSwatini government and members of parliament. The Minister alleges that it is apparent from the content of the articles themselves that Swaziland News and Mr Dlamini (editor) consistently make harmful, derogatory, false and misleading allegations against the eSwatini government in order to undermine the legitimate purpose, authority and decisions of the eSwatini government and to lower its standing in the public’s eyes. The Minister says that these articles are relentless, unsubstantiated and cause reputational harm to the eSwatini government.

Application: The Minister alleges that the respondents’ publication of the offensive article is unlawful or wrongful and published with the intent to defame various ministers and public officers or royal family member. It further seeks to defame the head of State and the government. The Minister is seeking a permanent interdict against the respondents. The Minister seeks to obtain relief not only for himself but also for the King and the eSwatini government.

Discussion: The articles defame the persons mentioned therein. The articles, read in their totality, and considered objectively, impairs the character, moral and social worth of those persons mentioned in the articles. The articles prejudice the respect and esteem of those mentioned in the articles amongst their fellow men and women and are humiliating in their content. Swaziland News does not claim that the statements are true. What Swaziland News appears to raise is the defence of reasonable publication. The allegations against the eSwatini government and especially the King are serious and explicitly defamatory upon a mere reading thereof. The source of the information in the articles are not disclosed by Swaziland News. The timing of the articles coincided with the public uprising in eSwatini. The articles were not independent and constituted the most severe criticism against the King and the eSwatini government. The timing of the articles, coinciding with the public uprising, was clearly aimed at, or had the potential, or indeed did, fuel the perpetrators of the uprising and clearly sought to gain support for the dissidence. The articles were not reasonable. No defence is established by Swaziland News in this regard.

Findings: The publication of the articles was unlawful as Swaziland News did not establish any of the established grounds of justification. Swaziland News has overreached in respect of its freedom of speech right. Swaziland News transgressed what is accepted as journalistic ethics. With regards to those who the Minister purportedly represents, the Minister says that each of those persons have standing to have approached this court. The Minister is correct, but they did not do so. Nothing prevented them from doing so. The Minister approaches this court in his own name and in his representative capacity. None of the articles refer to the Minister. One article refers to the Minister’s spouse. The Minister was not defamed. Perhaps his spouse was. None of the Minister’s personal rights were infringed. Therefore, the Minister has not established an infringement of his personal rights and is not entitled to interdictory relief. Insofar as the King and other officials of the eSwatini government are concerned, the King and the other officials have not established a clear right. No evidence was brought to court about the effect of the statements in the articles on them. The King and the other persons purportedly being represented by the Minister must be non-suited.

Order: The application is dismissed.

ROELOFSE AJ

Facts and issue: The applicant applies for vindicatory relief against the respondent, in that the applicant seeks the delivery of a motor vehicle in respect of which the applicant is the registered owner and title holder. In order to succeed in a claim for vindicatory relief, the applicant must allege and prove the ownership of the movable or immovable thing and that the respondent was in possession of the property when the application was instituted.

Discussion: AG Bore, a director of the applicant, was involved in a motor vehicle accident with the applicant’s vehicle. The applicant’s broker instructed AG Bore to have the vehicle taken to a Mercedes Benz approved panel beater for the vehicle to be assessed by the insurance company. Appropriate arrangements were made for the vehicle to be collected and transported to the premises of the respondent. There was no communication, either in writing or verbally, between the respondent and the applicant regarding any quotation for the repair of the vehicle or any storage costs for the vehicle that was delivered to the respondent’s premises. The broker informed AG Bore that the applicant should seek an alternative solution for the repair of the vehicle and that as the vehicle had been at the premises of the respondent for a considerable length of time, the storage fees were accumulating. AG Bore and the broker visited the premises of the respondent. AG Bore was surprised to find the vehicle out in the open on an unsecured piece of land, without any protection from attracting further damages. The respondent informed AG Bore that the outstanding storage fees amounted to between R600,000 to R700,000. AG Bore objected to this.

Findings: The evidence demonstrates that the applicant is the title holder and registered owner of the motor vehicle. At the time when the application was initiated, the respondent was and still is in possession of the motor vehicle which is the subject matter of the application. The motor vehicle which the applicant seeks to vindicate is clearly identifiable. Although the respondent contends that the applicant was informed of the liability for storage costs, the respondent has failed to allege and prove that it entered into any agreement with the applicant for the payment of such storage costs. Storage costs cannot be claimed merely because the property of the applicant was kept at the premises of the respondent.

Order: The respondent is ordered to deliver the applicant’s motor vehicle.

Facts: The plaintiff alleges that an article published by the Rising Sun Community Newspaper (second defendant) is defamatory against him. The article reported on the plaintiff’s arrest on a charge of sexual assault, his overnight detention, and his subsequent release into bail. It also featured an interview with the complainant, who alleged that she had been sexually assaulted by the plaintiff. He was acquitted after a trial at which he, the complainant, and other witnesses testified. Caxton CTP Publishers And Printers (first defendant) co-owns the newspaper with the Rising Sun. The essence of the plaintiff’s case is that he was arrested on a charge of sexual assault, was detained overnight and was released into bail the next day. The Rising Sun published the article the following week. The plaintiff pleaded that the publication of the article was in breach of section 154(2)(b) of the Criminal Procedure Act 51 of 1977 (CPA). The plaintiff pleaded that the article was also published online and was thereafter posted by third parties onto social media platforms such as Twitter (now known as X) and was, consequently, widely read. The plaintiff pleaded further that the article was deliberately misleading because it did not mention that he had been charged for an "alleged" sexual assault.

Claim: The plaintiff claims that he has been defamed by the article that appeared both in the paper and digital editions of a free community newspaper published by the Rising Sun Community Newspaper. The defendants delivered a joint plea in which they denied that they breached section 154(2)(b) of the CPA and denied that they intended to injure the plaintiff’s reputation. The defendants’ plea went on to aver that publication of the article was objectively reasonable and denied that the article is defamatory of the plaintiff.

Discussion: The plaintiff’s particulars of claim do not isolate and identify which parts of the article are defamatory of him. Reference is made only to the article as a whole. The plaintiff contended that the alleged non-compliance with the provisions of section 154(2)(b) by the Rising Sun established that he had been defamed. That proposition does not appear to be correct for two reasons. Firstly, section 154(2)(b) creates criminal, not civil, liability. A breach of the section attracts the penal provisions of section 154(5) of the Act. Secondly, the section does not have the meaning contended for by the plaintiff. It does not refer to a prohibition of the disclosure of the identity of the accused person: it refers to the disclosure of particulars of the charge. That is intended to offer some form of protection, not to the accused person, but to the victim of an alleged sexual assault. The plaintiff’s reliance on the section as having any relevance to his claim of defamation accordingly seems to be misplaced.

Findings: In the body of the article, it was reported that the plaintiff had been arrested, spent a night in custody and had then been released on bail the next day. All of that was perfectly correct, according to the plaintiff. The article was balanced and went no further than simply reporting the facts, bereft of commentary by the Rising Sun. There is no discernible intention to defame in the tone and style of the article. The article simply meant to the average reader that the plaintiff had been arrested and charged with sexual assault, had appeared in court and had been released into bail. It is significant that in all his interactions with the Rising Sun, virtually all of which were in writing, the plaintiff never once complained about the fact that the article had been written at all or that it was unfair to him in what it stated. What he sought was a second article to publicize his acquittal. The article was not defamatory of the plaintiff and its publication was not unlawful.

Order: The defendants are not liable to the plaintiff arising out of the article published in the Chatsworth Rising Sun.

MOSSOP J

Facts and issue: The applicant seeks an order directing the respondents (Eskom) to restore to the possession of the applicant electricity supply to the applicant’s farms. He alleged that he had been unlawfully deprived of electricity supply to which he always had undisturbed and peaceful access. The applicant is a livestock farmer. To grow the crops to feed his sheep and goats, water must be pumped with electricity to the various irrigation systems. All the farms do not have any other source of water and as such drinking water for the livestock is also pumped with electricity.

Discussion: The applicant alleges that the deprivation of his undisturbed possession of electricity constitutes a direct act of spoliation. He contended that the respondents have gone about this procedure in a wrong way because they should issue summons against him and follow the correct procedure. The respondents, by their conduct had taken the law into their own hands and were attempting to circumvent the legal process. The applicant must set forth explicitly the circumstances which render the matter urgent and the reasons why the applicant claims that the applicant could not be afforded substantial redress at the hearing in due course. The applicant failed to satisfy this requirement. He simply stated that he was advised that spoliation is always considered to be urgent and that he will suffer irreparable harm if electricity is not restored. He did not respond meaningfully to the allegations relating to the sequence of events leading up to the disconnection.

Findings: The undisputed facts are that the applicant and Eskom have a commercial relationship where Eskom supplies electricity to the applicant’s farms and bills applicant for the supply. The tax invoices show that the meter numbers, consumption and arrears, total amounts due, are, amongst others, recorded therein. The ‘deprivation of a prior supply of electricity’ is regulated by that contractual relationship which is purely personal in nature. Such supply does not constitute an incident of possession of the farms to which it is delivered. It follows that spoliation in these circumstances finds no application.

Order: The application is dismissed with costs.

Facts and issue: The applicant asks for the restoration of possession of a church building based on the mandament van spolie. The applicant sets out that it had peaceful and undisturbed possession of the property until they were unlawfully deprived of their possession by the respondent. The applicant has been in possession of the premises since November 2020 in terms of a lease agreement. It constructed a new church building on the premises when its followers increased. On these premises, the applicant continued to conduct its church activities.

Discussion: The applicant alleges that the respondent unlawfully dispossessed the applicant of the premises by ejecting the current members and founders. The respondents continued to trade under the applicant's name for a while but soon changed it to “Gospel Life Church International”. The respondent then threatened all members of the applicant to stay away from the property. The second and third respondents broke away from the applicant, who, aggrieved by how they were treated, started their own church and took over the premises where the applicant operated. Not only have they taken possession of the premises, but they have also taken down the applicant’s signage from the property. This did not happen in terms of any legal or lawful process. It is also not seriously disputed that until the second and third respondents left the applicant, the applicant oversaw the building, conducted their church services and other activities, and had signages on the outside walls. This all indicates factual possession.

Findings: When the respondents left the church and established the new church, the respondent (through the actions of the second and third respondent) deprived the applicant of that possession by taking over possession of the property and banning the applicant and its leaders from entering the premises and taking off the signage of the first applicant. That is dispossession. That is unlawful because they did not do so in a lawful manner. The respondents cannot resort to self-help. Arriving on the premises, threatening the applicant, and even having some members arrested are not lawful ways to gain possession.

Order: The first to third respondents are ordered to restore physical possession of the church premise to the applicant immediately.

Facts and issue: The applicant seeks an order for the immediate restoration of her access to an office through the main gate of the property and a costs order against the respondent. The parties are married to each other out of community of property with the exclusion of accrual. They are the joint owners of an immovable property. The parties are no longer living as husband and wife. The applicant contends that since her return to the matrimonial property and taking occupation of the flat, she has had free and unfettered access to her portion of the office situated in the main house, through the main gate of the property.

Discussion: The respondent locked the electrical gate controller of the main gate which made it impossible for her to gain access by opening the said gate either manually or using a remote control. The respondent erected a fence between the flat and the main house and thus denied her access to the main house and her portion of the office. The respondent posits that he had to install a new motor at the main gate. This new motor was fitted with an anti-theft bracket. He did not provide the applicant with the remote control to the new motor and to that extent, acceded that he denied the applicant access into the property through the main gate. The respondent asserts that his conduct amounted to a lawful counter-spoliation since the applicant had previously gained access to his living space within the main house through the office and took photographs of his furniture which she then advertised for sale through Facebook.

Findings: The respondent decided to change the motor of the main gate and failed to provide the applicant with a remote control to enable her access to the property and by erecting a fence between the flat and the main house. By causing the installation of a new motor to the main gate to the property and failing to provide a new remote control to the applicant to enable her continual access to the said property, the respondent unlawfully deprived the applicant of her possession and access to the property which she had enjoyed without hindrance prior to the said date. The unlawful deprivation continued with the erection of the fence between the two buildings by the respondent some eight days later.

Order: The respondent is ordered to immediately grant the applicant access to the office situated in the main house, from the flat occupied by the applicant and through the main gate of the property.

Facts and issue: Application for spoliatory relief. The applicant seeks an order that the respondent be directed to within 14 days return to the applicant undisturbed and peaceful possession of the farm and to remove from the said farm the tombstone. Kokwaan is being managed by Speedy. The respondent is Sebolai.

Discussion: Speedy received information regarding the erection of a newly constructed tombstone at the Graveyard. Speedy avers that no consent would have been forthcoming unless he had been assured that there was a gravesite of the grandfather of Sebolai, and before a tombstone could be positioned on same. The erection of this tombstone despoiled the applicant’s undisturbed possession and peaceful position of Kokwaan. Moreover, Sebolai had no right, permission or authority to act in such manner. The applicant was in peaceful and undisturbed possession of same. These findings are dispositive of the averment that the application falls foul of the fundamentals of a mandament van spolie. Sebolai concedes to the erection of the tombstone at Kokwaan but proffered that this was done with what I surmise to be the consent of the caretaker, probably Speedy.

Findings: There is no bona fide dispute of fact. Speedy dispels this. Speedy underscored his interaction with Sebolai and confirms her uncertainty in respect of where her grandfather had been buried. Sebolai fell short of providing facts to confirm that her great grandfather had been buried at Kokwaan. All investigations yielded not an iota of information that Sebolai’s grandfather was indeed buried on the farm Kokwaan. When requested by Jocum to provide certain specific facts that where the tombstone had been erected was the gravesite of her grandfather, Sebolai was unable to. Speedy provided Sebolai with his contact details with a specific proviso that she had to contact him regarding any positive information regarding the gravesite and that no activities were to be pursued without his explicit consent. Sebolai did neither. The applicant has demonstrated a proper cause of action for the relief sought.

Order: The application succeeds.

Facts and issue: The plaintiff claims damages from the defendant for injuries she sustained when she fell whilst walking on a sidewalk along the street. The plaintiff is an adult female pensioner. The plaintiff sued the defendant in that the sidewalk was not well maintained which caused her to fall and it was the defendant's duty to have the sidewalk and pavements within its area of jurisdiction properly maintained ensuring the safety of users, and if there was a danger, to warn users of such danger. The defendant applied for absolution from the instance.

Discussion: The defendant contends that the plaintiff was the owner of her misfortune. She had anaemia caused by low haemoglobin which made her to be high risk of falling. The defendant has a legal duty to keep the pavements in its area of jurisdiction in such a condition that they don't pose a danger to the persons using the pavements. The photos show that the area in question had holes and uneven areas which posed a danger to the users, in particular, to the weak and the elderly. The defendant has not led any evidence that the plaintiff fell because of her compromised physical condition. There was no evidence that a person with haemoglobin level that the plaintiff had would be physically weak and be unable to walk on the pavement without falling. The photographs shows that the pavement in the area where the plaintiff fell is in a poor condition with cracks, uneven surfaces and portholes.

Findings: The evidence of Bachcha who is familiar with the area and who is an independent witness shows that where the plaintiff had fallen there was a porthole. Bachcha who was physically there at the time in question and immediately attended to the plaintiff saw that what caused the plaintiff to fall was the hole in the pavement. This makes it probable that the plaintiff tripped on the pothole and fell. The plaintiff immediately after falling was taken to the doctor and medically examined. There was nothing found to be medically wrong with her physical condition except the injury on her left leg sustained when she fell. The examination including laboratory results would have revealed if something caused her leg to collapse. The defendant presented no expert evidence that the laboratory results show that the plaintiff's leg could just collapse.

Order: The application for absolution from the instance is dismissed.

Facts and issue: The plaintiff claimed damages because of injuries sustained during a motorbike accident. It was alleged that the accident occurred when the plaintiff struck a pothole at night. The plaintiff averred that the defendant had a legal duty towards all members of the public to attend to the proper upkeep and maintenance of public roads. It is further averred that the incident occurred as a direct result of the defendant’s unlawful breach of the duty and the defendant’s negligence.

Negligence: The defendant’s case is a bare denial. The defendant called no witnesses. No evidence was thus presented on behalf of the defendant to show that a lack of financial resources hindered the defendant in the execution of his maintenance duties or to detail the steps taken to warn the public of the existence of the potholes. In addition, the defendant’s plea did not include any facts or reasons why it was not negligent, despite the plaintiff outlining the grounds for negligence in his particulars of claim. Based on the available facts, the defendant was negligent in failing to repair the potholes. The potholes were located 150 meters from the plaintiff’s house and had been present some time before the accident. Ms Rittonoti testified that she was aware of these potholes. Given this, the plaintiff exhibited contributory negligence. Being so close to his house, he should have been aware of the potholes and taken steps to avoid them, especially driving at night in the rain. Therefore, 20% of the negligence is attributed to the plaintiff.

Damages: The plaintiff claimed past and future loss of earnings in the amount of R680,000. Mr. van Rensburg testified that he received a certificate, completed by the plaintiff’s employer, which purportedly proved the plaintiff’s loss of income. The defendant indicated that this certificate was not admitted, and the plaintiff was called upon to prove its past and future loss of income. Despite attempts made by the plaintiff’s attorney before and during the trial, the certificate remained in dispute. The contents of the certificate constituted hearsay evidence. It is thus inadmissible. The plaintiff’s counsel made no application for the certificate to be admitted in terms of section 3 of the Law of Evidence Amendment Act. The evidence presented by the plaintiff to prove his past and future loss of income was wholly insufficient. No additional documents or evidence were presented to support the claim for loss of earnings. Consequently, the plaintiff failed to prove his damages.

Award: The defendant is ordered to compensate the plaintiff 80% of his proven damages. General damages: R600,000. Past medical and hospital expenses: R151,035.71.

Facts: The applicants are husband and wife and have been occupying the premises owned by the respondent in terms of a 12-month lease agreement. The husband is in custody awaiting trial and the applicants defaulted on their rent payments. The wife, Ms Cassim, received a letter from the respondent’s attorneys to the effect that if she failed to make payment the agreement would be terminated and she should vacate the premises. Ms Cassim went to visit relatives and while she was away, her brother-in-law, Mr Essack, resided in the premises. One day he found three men in the premises and had to share the premises with them for several days, until they changed the lock, which he was informed was done on the instructions of the respondent. The attorneys informed Ms Cassim that the applicants had vacated the premises and that their movable property must be removed, otherwise it would be removed and she would be responsible for the costs of storage and transportation.

Application: The applicants brought an application by way of urgency for a mandament van spolie in terms of which they sought the restoration of possession and control of the premises and that the respondent be ordered to provide the keys to the new lock or restore the old lock. The applicants contend that they were in peaceful and undisturbed possession of the premises when the respondent changed the locks to the premises and installed three adult men in the premises to prevent Ms Cassim retaking possession of the premises. By so doing the respondent has unlawfully deprived the applicants of their possession to the premises without a court order.

Discussion: Ms Cassim was notified that should she fail to settle the payments, the lease agreement is cancelled and she should vacate the premises with all other occupants by a certain date. She did not settle the arrear payments. However, she alleges that she continued to remain in the property. As and when she was in the property, she knew that the agreement of lease came to an end as a result of her breach as a result of non-payment of rent. She also knew that she had to vacate the property. There was therefore no basis for her and the other occupants to remain in the premises. She knew she was not in lawful possession. It cannot be correct for her to contend that she was in peaceful and undisturbed possession of the premises.

Findings: At the time of the alleged spoliation Ms Cassim was not in possession of the premises. Payment of rental was demanded from her, she failed to pay and the contract was cancelled. At the time when her brother-in-law came to the premises, the applicants had long lost possession of the leased premises. The fact that the applicants’ movables are still at the premises does not revive their possession of the premises. At that time the applicants did not enjoy a peaceful and undisturbed possession of the premises. At the time of the spoliation the applicants did not possess the premises. They could not, therefore, have been deprived of possession. The applicants have failed to prove that they are entitled to the relief sought on a balance of probabilities.

Order: The application is dismissed. The applicants are ordered to pay the costs of this application.

TEFFO J

* Eds – See Zinju v King Sabata Dalindyebo Municipality [2023] ZAECMHC 67 at paras [15]-[16]:

In spoliation proceedings the court is not concerned with the lawfulness of the applicant’s possession. In other words, the applicant must not show that he was entitled to be in possession, but that he was in de facto possession at the time of being despoiled. In Mbuku v Mdinwa 1982 (1) SA 219 (Tk) at 220 it is stressed that an applicant for a spoliation order must establish the fact of his possession, for it is that which he is seeking to recover. The possession which must be proved is not possession in the juridical sense; it may be enough if the holding by the applicant was with intention of securing some benefit for himself, accompanied by the physical element of corpus or detentio. See: Reek v Mills 1990 (1) SA 751 (A) at 759D.