ATM Solutions (Pty) Ltd v Olkru Handelaars CC and Another (739/07) [2008] ZASCA 153; 2009 (4) SA 337 (SCA) ; [2009] 2 All SA 1 (SCA) (27 November 2008)

ATM Solutions (Pty) Ltd v Olkru Handelaars CC and Another (739/07) [2008] ZASCA 153; 2009 (4) SA 337 (SCA) ; [2009] 2 All SA 1 (SCA) (27 November 2008)

The Supreme Court of Appeal held that ATM Solutions did not have actual possession or control of the ATM or the premises; Olkru retained possession and controlled access at all times. The right asserted by ATM Solutions to have its ATM present and connected was purely contractual and not an incident of possession or occupation. The mandament van spolie does not protect such contractual rights. The relief sought by ATM Solutions amounted to specific performance of the contract, not restoration of possession. The high court correctly dismissed the application for a spoliation order, and the appeal was dismissed with costs.

Citation
[2008] ZASCA 153
Parties
Appellant: ATM Solutions (Pty) Ltd; Respondent: Olkru Handelaars CC; Respondent: ABSA Bank Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 November 2008
Case Number
739/07
Procedural Posture
Civil Appeal / Appeal From High Court (cape Town), Judgment Refusing Spoliation Order
Outcome
Appeal dismissed with costs.
Judges
Streicher, Cloete, Lewis, Jafta, Ponnan
Legal Topics
Mandament Van Spolie, Specific Performance, Contractual Rights, Quasi Possession
Civil Procedure Mandament Van Spolie Specific Performance Contractual Rights Quasi Possession

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 9 Party arguments 2
Sign in to unlock

Parties

ATM Solutions (Pty) Ltd

Appellant

Olkru Handelaars CC

Respondent

ABSA Bank Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court (cape Town), Judgment Refusing Spoliation Order

Legal Issues

  1. 1 Whether the appellant was entitled to a spoliation order for the reinstallation and reconnection of its ATM in the respondent's premises.
  2. 2 Whether the right asserted by the appellant was a possessory right or merely a contractual right not protected by the mandament van spolie.

Ratio Decidendi

The Supreme Court of Appeal held that ATM Solutions did not have actual possession or control of the ATM or the premises; Olkru retained possession and controlled access at all times. The right asserted by ATM Solutions to have its ATM present and connected was purely contractual and not an incident of possession or occupation. The mandament van spolie does not protect such contractual rights. The relief sought by ATM Solutions amounted to specific performance of the contract, not restoration of possession. The high court correctly dismissed the application for a spoliation order, and the appeal was dismissed with costs.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.