ATM Solutions (Pty) Ltd v Olkru Handelaars CC and Absa Bank Limited

ATM Solutions (Pty) Ltd supplied and installed automated teller machines (ATMs) at retail premises. In February 2007, it entered into a 'Site Location Agreement' with Olkru Handelaars CC, which operated a convenience store called Kwikspar Breedevallei in Worcester. The agreement provided for Olkru to provide floor space for an ATM supplied by ATM Solutions for use by Kwikspar's customers. The ATM was installed with wooden panelling and bolted to the floor. Under the agreement, ATM Solutions would 'use and occupy' the premises for the sole purpose of placing and operating an ATM. Olkru provided electricity, while ATM Solutions ensured bank connectivity. Olkru was not entitled to permit removal of the ATM and granted ATM Solutions reasonable access for servicing. However, Olkru at all times held the keys to the premises and the ATM, controlled all access, and an Olkru employee stocked the ATM with money, changed paper rolls, and effectively operated it. On 17 September 2007, without ATM Solutions' consent, Olkru disconnected the electricity supply to the ATM and moved it to a storeroom. Immediately afterwards, an ATM belonging to Absa Bank was installed in the same space. ATM Solutions brought an urgent application for a mandament van spolie against both respondents, claiming Olkru spoliated its rights and that Absa was a co-spoliator for facilitating the replacement.

• Whether ATM Solutions had possession or quasi-possession of the ATM sufficient to warrant protection by a mandament van spolie
• Whether the mandament van spolie is available to protect or enforce purely contractual rights
• Whether the right to have an ATM installed and connected on premises constitutes a 'gebruiksreg' (right to use property) or an incident of possession deserving of protection by spoliation order
• Whether the relief sought amounted to specific performance of a contract rather than restoration of possession

The appeal was dismissed with costs.

The mandament van spolie does not protect or enforce purely contractual rights. To qualify for protection through a spoliation order, rights must be 'gebruiksregte' (rights to use property) or incidents of possession or control of property. The mandament does not have a 'catch-all function' to protect quasi-possession of all kinds of rights irrespective of their nature. Mere personal or contractual rights are not protected by the mandament. The right to have equipment installed and connected on premises pursuant to a contract, where the applicant has no actual possession or control of the equipment or premises, constitutes a purely contractual right and not an incident of possession. The presence and connection of equipment as a consequence of contractual performance does not transform a contractual right into a possessory right. Where the relief sought amounts to specific performance of a contract (reinstallation and reconnection), the mandament van spolie is not the appropriate remedy.

The court noted that cases where the mandament protects incidents of occupation (such as electricity, water supply, or nameplates) involve rights that flow from or are incidental to possession of corporeal property. The court cited with approval the statement from Wille's Principles of South African Law that 'where the non-servitutal right of use is separate from applicant's possession of corporeal property it is almost inevitably a contractual right which is not protected by the mandament van spolie.' The court distinguished Shapiro v South African Savings and Credit Bank on the basis that the nameplate in that case was part of the conditions of tenancy and an incident of the tenant's occupation, whereas in this case ATM Solutions had no occupation or control. The court also commented that the purpose of spoliation orders is to stop people from taking the law into their own hands and to preserve the peace, rather than to order specific performance of contracts.

This case is significant in South African law for clarifying the limitations of the mandament van spolie remedy. It reinforces the principle that spoliation orders are not available for the enforcement of purely contractual rights, even where those rights relate to the physical presence or installation of equipment on premises. The judgment distinguishes between rights that are incidents of possession (which are protected) and rights that are merely consequences of contractual arrangements (which are not protected). It confirms that the mandament van spolie is designed to prevent self-help and preserve the peace, not to order specific performance of contracts. The case illustrates the importance of characterizing the nature of the right being asserted to determine whether it qualifies for protection through a spoliation order. It follows and applies the principles established in Xsinet and First Rand Ltd v Scholtz NO, contributing to a consistent jurisprudence limiting the scope of the mandament van spolie.