Wagendrift Safaries (Pty) Ltd v M P Shlemembe and The Shelembe Community

The applicant, Wagendrift Safaries (Pty) Ltd, is a company that owns several farms surrounding the remaining extent of the farm Warmbad and leases farm Warmbad from the state (Mkhondo Municipality). The lease agreement ran from 1 April 1994 to March 2004, continuing thereafter until terminated by either party on sixty days' written notice. The applicant operates a game reserve on these properties. The second respondent, the Shelembe Community, lodged a land claim in October 1998 under the Restitution of Land Rights Act 22 of 1994, which included farm Warmbad. The respondents had historically visited graves on the property with the applicant's knowledge and permission. In June 2009, the applicant's game reserve manager refused the respondents access to visit ancestral graves. In January 2010, the respondents allegedly broke the lock on the entrance gate, dug holes, and erected structures on the property. A notice on one structure read "DON'T TOUCH… IT'S DO OR DIE". The applicant brought an urgent spoliation application to have the respondents removed and interdicted from entering the property.

• Whether the applicant was in peaceful and undisturbed possession of farm Warmbad
• Whether the respondents deprived the applicant of possession forcibly or wrongfully and without consent
• Whether the respondents' actions constituted spoliation
• The interaction between spoliation remedies and land restitution claims
• Whether the respondents had a right to access the property to visit and maintain family graves

The court ordered: (1) That the respondents forthwith remove the structures erected on farm Warmbad and vacate the farm; (2) That the respondents are interdicted and restrained from entering farm Warmbad; (3) No order as to costs.

The binding principle is that a lessee in peaceful and undisturbed possession of property is entitled to a spoliation order where occupation is effected through stealth (breaking locks) and without consent, notwithstanding that the occupiers have lodged a land restitution claim over the property. Possession for spoliation purposes does not require juridical possession but merely holding property with intention to receive benefit accompanied by physical control (corpus/detentio). The defenses available in spoliation proceedings are limited to: (a) denial of facts in issue, (b) that restoration is impossible, and (c) lapse of time. A pending land claim or alleged right to visit graves does not constitute a defense to spoliation where entry is effected forcibly and without consent. While persons have a right under section 6(4) of the Extension of Security of Tenure Act 62 of 1997 to visit and maintain family graves on another's land, this right is subject to reasonable conditions imposed by the owner or person in charge, and does not permit unilateral forcible entry.

The court observed that the respondents have a right to visit and maintain family graves on land belonging to another person under section 6(4) of the Extension of Security of Tenure Act 62 of 1997, once suitable arrangements have been made. This right is subject to reasonable conditions imposed by the owner or person in charge to safeguard life, property, or prevent disruption of working operations. The court also noted correspondence regarding a meeting on 12 February 2010 where the Regional Land Claims Commissioner and Mkhondo Municipality proposed controlled occupation by 5 caretakers with 5 structures, though this did not affect the spoliation remedy. The court's decision to make no order as to costs suggests recognition of the complexity of balancing property rights with legitimate cultural and restitution interests, though this was not explicitly stated.

This case demonstrates the application of spoliation principles in the context of land restitution claims and cultural rights to access ancestral graves. It illustrates that pending land claims do not entitle claimants to self-help remedies or unilateral occupation of claimed land. The judgment affirms that peaceful possession by a lessee is protected through the mandament van spolie, even against persons with potential land claims. The case also recognizes the tension between property rights and cultural/familial rights to access graves under the Extension of Security of Tenure Act, emphasizing that such access rights must be exercised subject to reasonable conditions and arrangements with the person in control of the land. The decision reinforces the principle that the rule of law and proper legal processes must be followed, rather than self-help occupation, even where there may be legitimate underlying claims or cultural imperatives.