In 2006, the applicant entered into an agreement with the late Dr Moleko to occupy and build structures on property known as the Dr Moleko Business Complex in Tienbank, Sterkspruit. The applicant constructed the Buzi building comprising several stores, including a bottle store, JJ Supermarket and salon, surrounded by a piece of land within the property's parameters. The applicant had been in peaceful and undisturbed possession since 2006. On 6 March 2025, the applicant observed the respondents (members of Hershel Taxi Association) digging holes on the disputed land which had been marked with a concrete slab to signify the applicant's possession. The land was used by the applicant's customers for parking and as a pavement. The respondents installed poles on the land. There was a history of litigation between the parties, with the respondents having instituted eviction proceedings against the applicant which remained pending. The applicant's attorneys sought an undertaking from the respondents to cease their activities, but the respondents' attorneys failed to respond.
1. The preliminary points of non-joinder and misjoinder are dismissed. 2. The application for mandament van spolie is granted. 2.1 The first to sixth respondents are ordered to immediately restore peaceful and undisturbed possession of business premises commonly known as Dr Moleko Business Complex in Sterkspruit to the applicant. 2.2 The first to sixth respondents and all those acting on their instructions are interdicted and restrained from conducting any building activities on the premises. 2.3 The first to sixth respondents are immediately ordered to remove the poles installed on the premises. 2.4 The fifth to sixth respondents shall pay costs of the application on Scale B as contemplated under Rule 67A read with Rule 69 of the Uniform Rules of Court. 3. In the event the third to sixth respondents fail to remove the poles, the Sheriff assisted by the Station Commander, Sterkspruit Police Station and/or his delegates shall remove the poles.
The binding legal principles established are: (1) A tenant in possession of property under a lease agreement has possessory rights protected by the mandament van spolie. (2) To succeed in a mandament van spolie application, an applicant must prove: (a) undisturbed possession of the thing in question; and (b) unlawful deprivation of that possession. The cause or lawfulness of the original possession is irrelevant. (3) Physical interference with land in the possession of another, such as digging holes and erecting poles, constitutes dispossession sufficient to ground a mandament van spolie. (4) The mandament van spolie applies where possession of property (such as land) is at issue, as distinct from purely personal or contractual rights such as the right to receive services. (5) The fact that there may be underlying contractual disputes does not preclude the remedy where the claim is based on possession of property rooted in a lease agreement.
The court made non-binding observations regarding urgency, stating that urgency is not determined by a one-size-fits-all approach but rather on a case-by-case basis. The court noted it was necessary to think ahead and anticipate that allowing the respondents to build on the disputed land would lead to a later order to vacate and demolish a completed structure, which would be prejudicial to both parties. The court also observed that the mandament van spolie is characterized by three features: (a) it is a possessory remedy protecting possession rather than ownership; (b) it is an extraordinary and robust remedy providing swift and effective relief; and (c) it provides a rapid solution to disputes over possession. The court noted that the main purpose of the mandament van spolie is to maintain public order by discouraging self-help and vigilantism and encouraging parties to follow legal procedures.
This case reinforces the robust protection afforded by the mandament van spolie in South African law as a possessory remedy that protects possession rather than ownership. It demonstrates that the remedy is available even to tenants in possession under lease agreements. The judgment confirms that the mandament van spolie provides swift relief against unlawful dispossession regardless of the merits of underlying ownership or contractual disputes. The case also illustrates the distinction between possessory rights (protected by mandament van spolie) and purely contractual or personal rights (as in Eskom v Masinda). It confirms that courts will act urgently to prevent situations where allowing unlawful building activities to continue would create prejudice to all parties.