Jonker v Van Tonder (1979/2020) [2020] ZAFSHC 139 (19 August 2020)

Jonker v Van Tonder (1979/2020) [2020] ZAFSHC 139 (19 August 2020)

The court found that the applicant was in peaceful and undisturbed possession of the outbuilding, having used it for storage and maintained access through her caretaker. The respondent acknowledged her possession by requesting her to vacate and later unlawfully deprived her of access by replacing the lock and storing his own property. The respondent's defence of counter-spoliation failed as he did not take immediate steps to reclaim possession and had not been in possession at the relevant time. The court held that the applicant satisfied all requirements for the mandament van spolie and was entitled to restoration of possession. Urgency was established due to the deprivation and risk of...

Citation
[2020] ZAFSHC 139
Parties
Applicant: Michelle Jonker; Respondent: Johannes Petrus Van Tonder
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
19 August 2020
Case Number
1979/2020
Procedural Posture
Urgent Application / First Instance
Outcome
Application granted; status quo ante restored; costs awarded to applicant.
Judges
M.A. Mathebula
Legal Topics
Mandament Van Spolie, Urgent Interdict, Possession and Dispossession, Counter Spoliation
Civil Procedure Land and Property Mandament Van Spolie Urgent Interdict Possession and Dispossession Counter Spoliation

Case Brief

Summary, issues, holding and outcome

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Parties

Michelle Jonker

Applicant

Johannes Petrus Van Tonder

Respondent

Procedural Posture

Urgent Application / First Instance

Legal Issues

  1. 1 Whether the applicant was unlawfully deprived of possession of the outbuilding by the respondent.
  2. 2 Whether the applicant is entitled to restoration of possession under the mandament van spolie remedy.
  3. 3 Whether the respondent's defence of counter-spoliation is valid.

Ratio Decidendi

The court found that the applicant was in peaceful and undisturbed possession of the outbuilding, having used it for storage and maintained access through her caretaker. The respondent acknowledged her possession by requesting her to vacate and later unlawfully deprived her of access by replacing the lock and storing his own property. The respondent's defence of counter-spoliation failed as he did not take immediate steps to reclaim possession and had not been in possession at the relevant time. The court held that the applicant satisfied all requirements for the mandament van spolie and was entitled to restoration of possession. Urgency was established due to the deprivation and risk of...

Court Disposition

Application granted; status quo ante restored; costs awarded to applicant.

Orders

  • The application is dealt with as one of urgency in terms of rule 6(12) of the Rules of Court.
  • The respondent is ordered to restore the status quo ante by restoring possession of the outbuilding to the applicant.