City of Ekurhuleni Metropolitan Municipality v Tshepo Gugu Trading CC and Another

The respondent, Tshepo Gugu Trading CC, erected a billboard on municipal land (Portion 988, Elandsfontein) in March 2016 in contravention of the municipality's Billboards and Display of Advertisements By-laws of 30 March 2017. In August 2016, the municipality launched an application for removal of the billboard. The parties settled the matter in terms of a court order by Victor J ("the Victor J order") on 11 September 2018. The order allowed the respondent an opportunity to regularise the billboard by submitting a compliant regularisation application within 30 days, required payment of rental from 11 September 2018, and stipulated that the agreement would operate for two years until 11 September 2020. The respondent submitted a regularisation application on 9 October 2018 but failed to pay the prescribed fees required by sections 54 and 64 of the By-laws, failed to provide statements of income from advertisers, and failed to pay rental as required. The regularisation application lapsed on 7 October 2019 after 12 months without substantive progress (as per section 52(14) of the By-laws). Despite further extensions granted by the municipality until 28 February 2020, the respondent still failed to comply. On 20 August 2020, the municipality dismantled and removed the billboard. The respondent brought an urgent spoliation application which was initially refused by Senyatsi J but succeeded in the full court, which ordered restoration of the billboard.

• Whether the municipality unlawfully deprived the respondent of possession of the billboard when it dismantled it on 20 August 2020
• Whether the municipality was authorized by the Victor J order to remove the billboard given the respondent's non-compliance with the terms of that order
• Whether the remedy of mandament van spolie was available to restore possession of an illegally erected structure
• Whether the appeal was moot given that the Victor J order had a two-year lifespan that expired on 11 September 2020
• Whether possession can be restored to the status quo ante where the structure violated municipal by-laws

1. The application for special leave to appeal succeeds. 2. The appeal is upheld with costs, such costs to include the costs of the employment of two counsel. 3. The order of the full court is set aside and replaced with the following: 'The appeal is dismissed with costs.'

The binding principle is that a mandament van spolie will not be granted to restore possession where: (1) the possession to be restored is unlawful and constitutes an ongoing violation of statutory provisions or by-laws; (2) the dispossession was authorized by a valid court order; and (3) the party dispossessed failed to comply with conditions precedent required to regularize the unlawful possession. Specifically, where a settlement agreement incorporated into a court order provides for removal of an illegal structure upon non-compliance with regularization requirements, and the party in possession fails to meet those requirements (including payment of prescribed fees mandated by by-laws), the party authorized to remove the structure acts lawfully and not spoliatorily. The court will not order restoration of the status quo ante where doing so would perpetuate a clear illegality and contravene municipal by-laws designed to maintain order, ensure public safety, and regulate community life.

The Court noted that from the photographs on record, it was clear that the display screen, media player and control system had been removed and all that remained was the steel frame. The Court observed that although a court would ordinarily order restoration of the status quo ante in spoliation cases, the difficulty facing the respondent was that the structure sought to be restored in any event violated the By-laws in terms of both its size and location. The Court referenced Eskom Holdings SOC Limited v Masinda, noting that there may be circumstances in which a court will decline to issue a spoliation order, such as where the status quo ante is to be restored through unlawful means and through placing members of the public in danger. The Court emphasized that by-laws are designed to maintain order, ensure public safety, create harmonious living environments, promote sound business interests and competition, and regulate community life. The Court also observed that the debatement application (an application to compel disclosure of financial information regarding revenue earned from the billboard) as well as a counter-application filed by the respondent remained pending before the high court.

This case clarifies the limits of the mandament van spolie remedy in South African property law. It establishes that the remedy is not available where the possession being restored would constitute an ongoing illegality. The judgment emphasizes that courts will not use the spoliation remedy to restore possession of structures that violate municipal by-laws, even if the possessor was in peaceful possession before dispossession. The case is significant for local government law, affirming that municipalities may enforce their by-laws and court orders authorizing removal of non-compliant structures without being liable for spoliation. It balances the strong protection traditionally afforded to possession under the mandament van spolie with the principle that courts should not sanction illegality. The judgment also provides guidance on when settlement agreements incorporated into court orders may be enforced, and confirms that failure to comply with conditions precedent in such agreements (such as payment of prescribed fees) entitles the other party to invoke the consequences stipulated in the agreement.