Graceful Blessing (Pty) Ltd v Zander Burger Properties (Pty) Ltd (A32/2023) [2023] ZAFSHC 367; 2024 (2) SA 441 (FB) (27 September 2023)

Graceful Blessing (Pty) Ltd v Zander Burger Properties (Pty) Ltd (A32/2023) [2023] ZAFSHC 367; 2024 (2) SA 441 (FB) (27 September 2023)

The court held that the respondent established the requirements for mandament van spolie, having been in peaceful and undisturbed possession and unlawfully dispossessed when the appellant changed the locks without a court order. Although the lease agreement contained clause 18 purporting to allow the owner to take any action for immediate ejectment, such a provision does not pass constitutional muster and cannot oust the right of access to court. The court found that freedom of contract is subject to constitutional values, and extra-curial repossession is contrary to public policy. The appellant's reliance on clause 18 was rejected, as the wording did not clearly and lawfully permit...

Citation
[2023] ZAFSHC 367
Parties
Appellant: Graceful Blessings (Pty) Ltd; Respondent: Zander Burger Properties (Pty) Ltd
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
27 September 2023
Case Number
A32/2023
Procedural Posture
Civil Appeal / Appeal From High Court Judgment Granting Mandament Van Spolie
Outcome
Appeal dismissed; High Court order granting mandament van spolie confirmed.
Judges
MBHELE, VAN ZYL, CRONJÉ
Legal Topics
Mandament Van Spolie, Lease Cancellation, Contractual Interpretation, Pacta Sunt Servanda, Constitutional Right of Access to Court, Extra Curial Ejectment
Land and Property Civil Procedure Commercial and Corporate Mandament Van Spolie Lease Cancellation Contractual Interpretation Pacta Sunt Servanda Constitutional Right of Access to Court +1 more

Case Brief

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Parties

Graceful Blessings (Pty) Ltd

Appellant

Zander Burger Properties (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment Granting Mandament Van Spolie

Legal Issues

  1. 1 Whether the respondent established the requirements for mandament van spolie.
  2. 2 Whether the lease agreement was validly cancelled by the appellant.
  3. 3 Whether clause 18 of the lease agreement entitled the appellant to repossess the premises without recourse to court.

Ratio Decidendi

The court held that the respondent established the requirements for mandament van spolie, having been in peaceful and undisturbed possession and unlawfully dispossessed when the appellant changed the locks without a court order. Although the lease agreement contained clause 18 purporting to allow the owner to take any action for immediate ejectment, such a provision does not pass constitutional muster and cannot oust the right of access to court. The court found that freedom of contract is subject to constitutional values, and extra-curial repossession is contrary to public policy. The appellant's reliance on clause 18 was rejected, as the wording did not clearly and lawfully permit...

Court Disposition

Appeal dismissed; High Court order granting mandament van spolie confirmed.

Orders

  • The appeal is dismissed.
  • Appellant pays the costs of the appeal.