Panki Mbongozi v Mac Mkunyana Investments (Pty) Ltd

On 1 April 2020, the applicant (lessee) and respondent (lessor) entered into a lease agreement for business premises at Erf 400, No. 29 Nelson Mandela Drive, Mthatha, with the lease set to endure until 31 March 2025. On 28 September 2022, the respondent cancelled the lease agreement due to the applicant's breach in failing to pay rentals. Upon termination, the applicant left moveable property on the premises. The respondent refused to release the moveable properties to the applicant, asserting a tacit hypothec over them to secure payment of unpaid rentals. The applicant launched an urgent application seeking restoration of possession of her moveable properties, claiming spoliation.

• Whether the applicant had locus standi in judicio to bring the application
• Whether there were irresolvable disputes of fact preventing the matter from being determined on motion proceedings
• Whether the respondent's refusal to release the moveable properties constituted spoliation
• Whether the applicant satisfied the requirements for the mandament van spolie
• Whether the respondent had a valid tacit hypothec over the moveable properties

1. The application is dismissed. 2. The Applicant to pay the costs of the application.

Where a lessee leaves moveable property on leased premises after termination of a lease agreement, and the lessor retains possession of those properties based on a tacit hypothec to secure unpaid rentals, the lessee cannot succeed with a mandament van spolie application because: (1) the lessee is not in peaceful and undisturbed possession of the properties after vacating the premises; (2) the lessee consented to placing the properties at the disposal of the lessor when entering into the lease agreement; and (3) the lessor's possession based on tacit hypothec does not constitute unlawful deprivation. The essence of mandament van spolie is the restoration of unlawfully deprived possession, and all three requirements (peaceful possession, deprivation by respondent, and lack of consent) must be established on a balance of probabilities for the remedy to succeed.

The court noted that in a constitutional democracy, the doctrine of mandament van spolie is rooted in the rule of law and its main purpose is to preserve public order by preventing persons from taking the law into their own hands, citing Tswelofele Non-Profit Organisation. The court also observed that despite the respondent's points in limine being dismissed, the respondent achieved substantial success in the application overall, which entitled it to the full costs of the application.

This case clarifies the application of the mandament van spolie remedy in the context of lease agreements and tacit hypothec. It demonstrates that where a lessor retains moveable property based on a tacit hypothec to secure unpaid rentals following termination of a lease, this does not constitute unlawful deprivation of possession that would warrant the mandament van spolie remedy. The case reinforces that the applicant must prove peaceful and undisturbed possession, unlawful deprivation, and lack of consent, and that consent given at the commencement of the lease relationship can continue to operate to defeat a spoliation claim. It also illustrates the proper approach to determining locus standi and disputes of fact in motion proceedings.