Makeshift 1190 (Pty) Ltd v Cilliers (A38/2020) [2020] ZAWCHC 41; [2020] 3 All SA 234 (WCC); 2020 (5) SA 538 (WCC) (25 May 2020)

Makeshift 1190 (Pty) Ltd v Cilliers (A38/2020) [2020] ZAWCHC 41; [2020] 3 All SA 234 (WCC); 2020 (5) SA 538 (WCC) (25 May 2020)

The court held that the respondent’s right to electricity was an incident of her family’s occupation of the store, granted under a precarium by Makeshift, and not a mere personal right. The deprivation of electricity was intended to disturb their possession and force them off the property, thus constituting spoliation. The Magistrate’s Court was empowered to grant spoliatory relief requiring restoration of the electricity supply, and such an order did not amount to impermissible specific performance. Statutory unlawfulness of occupation was irrelevant in spoliation proceedings. The appeal was dismissed with costs.

Citation
[2020] ZAWCHC 41
Parties
Appellant: Makeshift 1190 (Pty) Ltd; Respondent: Colleen Cilliers
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
25 May 2020
Case Number
A38/2020
Procedural Posture
Civil Appeal / Appeal From Riversdale Magistrate’s Court Spoliation Order
Outcome
Appeal dismissed with costs.
Judges
Rogers, Cloete
Legal Topics
Mandament Van Spolie, Quasi Possession, Electricity Supply, Precarium, Specific Performance, Unlawful Occupation
Civil Procedure Land and Property Mandament Van Spolie Quasi Possession Electricity Supply Precarium Specific Performance Unlawful Occupation

Case Brief

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Parties

Makeshift 1190 (Pty) Ltd

Appellant

Colleen Cilliers

Respondent

Procedural Posture

Civil Appeal / Appeal From Riversdale Magistrate’s Court Spoliation Order

Legal Issues

  1. 1 Whether the respondent’s right to electricity supply was an incident of possession of the property or a mere personal right.
  2. 2 Whether the Riversdale Magistrate’s Court had jurisdiction to grant spoliatory relief requiring restoration of electricity supply.
  3. 3 Whether the respondent’s occupation of the property was unlawful and precluded spoliatory relief.

Ratio Decidendi

The court held that the respondent’s right to electricity was an incident of her family’s occupation of the store, granted under a precarium by Makeshift, and not a mere personal right. The deprivation of electricity was intended to disturb their possession and force them off the property, thus constituting spoliation. The Magistrate’s Court was empowered to grant spoliatory relief requiring restoration of the electricity supply, and such an order did not amount to impermissible specific performance. Statutory unlawfulness of occupation was irrelevant in spoliation proceedings. The appeal was dismissed with costs.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.
  • It was reasonably necessary for the respondent’s counsel to file supplementary heads of argument due to the lateness of the appellant’s heads.