A Re Shomeng Holdings Pty Limited and Others v Thuthukani Bantu Communal Property Association (2716/2017) [2017] ZAGPPHC 803 (20 December 2017)

A Re Shomeng Holdings Pty Limited and Others v Thuthukani Bantu Communal Property Association (2716/2017) [2017] ZAGPPHC 803 (20 December 2017)

The applicants were in possession of the property pursuant to a mining right and were unlawfully dispossessed by the respondent. The respondent's defence of counter-spoliation failed because its actions were not immediate and did not form part of the res gestae; instead, the respondent engaged in negotiations and only later attempted to repossess the property. The principle of mandament van spolie requires restoration of possession regardless of the merits of ownership, and the respondent's conduct amounted to taking the law into its own hands. The peripheral defences raised by the respondent were without merit and did not affect the applicants' entitlement to relief. The respondent's...

Citation
[2017] ZAGPPHC 803
Parties
Applicant: A Re Shomeng Holdings Pty Limited; Applicant: A Re Shomeng Projects Pty Limited; Applicant: Trollope Mining Services (2000) Pty Limited; Respondent: Thuthukani Bantu Communal Property Association
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
20 December 2017
Case Number
2716/2017
Procedural Posture
Urgent Application / Final Order After Urgent Application
Outcome
Application granted; order reaffirmed restoring possession and granting interdict, with punitive costs against the respondent.
Judges
M F Legodi
Legal Topics
Mandament Van Spolie, Counter Spoliation, Mining Rights, Interdict, Possession, Punitive Costs
Civil Procedure Land and Property Mandament Van Spolie Counter Spoliation Mining Rights Interdict Possession Punitive Costs

Case Brief

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Parties

A Re Shomeng Holdings Pty Limited

Applicant

A Re Shomeng Projects Pty Limited

Applicant

Trollope Mining Services (2000) Pty Limited

Applicant

Thuthukani Bantu Communal Property Association

Respondent

Procedural Posture

Urgent Application / Final Order After Urgent Application

Legal Issues

  1. 1 Whether the applicants were unlawfully dispossessed of possession of the property.
  2. 2 Whether the respondent's defence of counter-spoliation is sustainable.
  3. 3 Whether the applicants are entitled to restoration of possession and undisturbed access to the property.

Ratio Decidendi

The applicants were in possession of the property pursuant to a mining right and were unlawfully dispossessed by the respondent. The respondent's defence of counter-spoliation failed because its actions were not immediate and did not form part of the res gestae; instead, the respondent engaged in negotiations and only later attempted to repossess the property. The principle of mandament van spolie requires restoration of possession regardless of the merits of ownership, and the respondent's conduct amounted to taking the law into its own hands. The peripheral defences raised by the respondent were without merit and did not affect the applicants' entitlement to relief. The respondent's...

Court Disposition

Application granted; order reaffirmed restoring possession and granting interdict, with punitive costs against the respondent.

Orders

  • The respondent and its employees, members, and agents are interdicted and restrained from interfering with the applicants' mining activities on the property.
  • The respondent and its employees, members, and agents are ordered to restore the applicants' possession of and undisturbed access to the property within 24 hours of service of the order.