ATM Solutions (pty) Limited v OLKRU Handelaars CC and Another (13362 /07) [2007] ZAWCHC 63; 2008 (2) SA 345 (C); (7 November 2007)

ATM Solutions (pty) Limited v OLKRU Handelaars CC and Another (13362 /07) [2007] ZAWCHC 63; 2008 (2) SA 345 (C); (7 November 2007)

The applicant failed to establish possession or quasi possession of the ATM device or the premises sufficient to warrant spoliatory relief. The court found that the applicant's right to keep the ATM at the premises was a contractual right, and its claim amounted to specific performance, which is not protected by the mandament van spolie according to binding Supreme Court of Appeal authority. The court was unable to distinguish the present facts from those in Xsinet and First Rand, and was therefore bound to dismiss the application for spoliatory relief.

Citation
[2007] ZAWCHC 63
Parties
Applicant: ATM Solutions (PTY) Limited; Respondent: OLKRU Handelaars CC; Respondent: ABSA Bank Limited
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
7 November 2007
Case Number
13362 /07
Procedural Posture
Urgent Application / Application for Spoliation Order
Outcome
Application dismissed with costs.
Judges
Griesel
Legal Topics
Mandament Van Spolie, Quasi Possessio, Specific Performance, Contractual Rights
Civil Procedure Mandament Van Spolie Quasi Possessio Specific Performance Contractual Rights

Case Brief

Summary, issues, holding and outcome

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Parties

ATM Solutions (PTY) Limited

Applicant

OLKRU Handelaars CC

Respondent

ABSA Bank Limited

Respondent

Procedural Posture

Urgent Application / Application for Spoliation Order

Legal Issues

  1. 1 Whether the applicant was in possession or quasi possession of the ATM device sufficient to warrant spoliatory relief.
  2. 2 Whether the mandament van spolie is available to enforce contractual rights in this context.
  3. 3 Whether the applicant's claim amounts to specific performance rather than protection of possession.

Ratio Decidendi

The applicant failed to establish possession or quasi possession of the ATM device or the premises sufficient to warrant spoliatory relief. The court found that the applicant's right to keep the ATM at the premises was a contractual right, and its claim amounted to specific performance, which is not protected by the mandament van spolie according to binding Supreme Court of Appeal authority. The court was unable to distinguish the present facts from those in Xsinet and First Rand, and was therefore bound to dismiss the application for spoliatory relief.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.