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De Jure Law Journal

versión On-line ISSN 2225-7160
versión impresa ISSN 1466-3597

De Jure (Pretoria) vol.54 no.1 Pretoria  2021

http://dx.doi.org/10.17159/2225-7160/2021/v54a6 

RECENT CASE LAW

 

Makeshift 1190 (Pty) Ltd v Cilliers 2020 5 SA 538 (WCC)

 

 

The increasing difficulty of protecting quasi-possession of incorporeals with the mandament van spolie

1 Introduction

The mandament van spolie (mandament; spoliation remedy) protects peaceful and undisturbed possession against unlawful spoliation (Muller et al Silberberg and Schoeman's the Law of Property (2019) 326-327; Boggenpoel Property Remedies (2017) 96-101; Kleyn Die Mandament van Spolie in die Suid-Afrikaanse Reg (LLD thesis 1986 UP) 297-307). It also protects quasi-possession of certain incorporeals or rights (Muller et al 337-346; Boggenpoel 105-121). In Eskom Holdings SOC Ltd v Masinda 2019 5 SA 386 (SCA) (Masinda), the Supreme Court of Appeal held that the quasi-possession of a right, specifically electricity supply, does not enjoy protection under the mandament if the right is sourced in contract (par 22). The quasi-possession of a right only enjoys possessory protection if the right is in the nature of a servitude, is registered or flows from statute (par 22).

In Makeshift 1190 (Pty) Ltd v Cilliers 2020 5 SA 538 (WCC) (Makeshift), the Western Cape Division of the High Court, Cape Town (the court; Cape High Court), recently had to decide whether the mandament is available for restoring the quasi-possession of electricity supply that derives from contract. The appellant severed the electricity supply to the respondent's home without her permission, upon which she instituted the mandament to have her quasi-possession of the supply restored. Rogers J, with Cloete J concurring, held that the quasi-possession of such supply, despite being contractual in nature, enjoys possessory protection. He distinguished the case from Masinda by reinterpreting the "incident of possession" notion, which is a key requirement for the quasi-possession of a right to enjoy possessory protection. He ruled that electricity supply used on land is an incident of possession of the land - and therefore enjoys possessory protection - if such supply is additional to, or part of, a professed right, the spoliatus has against the spoliator to occupy the premises where the right used. Furthermore, the spoliator must have an interest in the possession of the land. By severing the electricity supply, the appellant attempted to evict the respondent without following due process. He therefore granted the mandament to protect her quasi-possession of the electricity supply.

The Cape High Court's approach towards quasi-possession, particularly the "incident of possession" requirement, is novel and deserves attention, particularly due to the precedent in Masinda. This is because Rogers J identified a category of rights the quasi-possession of which enjoys possessory protection regardless of their personal nature. His attempt to distinguish the case from Masinda is admirable, as his judgement arguably upheld the respondent's right to have access to adequate housing and her right against arbitrary eviction from her home. Unfortunately, the decision's potential drawbacks seem to outweigh these positive features.

Rogers J's interpretation of the "incident of possession" requirement does not find authority in either case law or academic scholarship. His understanding of this requirement, though appearing to vindicate the respondent's constitutional rights, has the potential to subvert these same rights in other contexts. This is because without the spoliatus having an alleged occupation right against the spoliator (or when someone other than the spoliator cuts off the electricity supply), the quasi-possession of such spoliatus will not enjoy possessory protection. Furthermore, the court's construal of the "incident of possession" notion delves into the merits of the dispute, which are irrelevant in spoliation proceedings. Scrutinising the merits may subvert the speedy and robust nature of the spoliation remedy, which could undermine its purpose and, hence, the rule of law. For these reasons, the judgment is unappealing.

The case note is structured as follows: section 2 sets out the facts of the case and the court's decision. Section 3, in turn, evaluates the decision in view of the two points raised in the previous paragraph. The final part, namely section 4, sets out the conclusion.

2 The Makeshift case

2 1 Facts

Makeshift is an appeal to the Cape High Court from the Riversdale Magistrate's Court (court a quo). The appellant, namely Makeshift 1190 (Pty) Ltd (the appellant), owned a farm in the Riversdale area, on which the respondent and her family occupied a building (referred to as "the store"). It was common cause that the store was their home.

Eskom served the store with electricity. The respondent's husband paid the electricity bills, though it was the appellant who had the contract with Eskom for the provision of electricity. During December 2017, Eskom disconnected the electricity on the farm after the appellant cancelled its contract with Eskom. The only part of the farm that still used Eskom electricity at that point was the store and its related facilities. There was a strained relationship between the appellant and the respondent, and it appeared that the appellant terminated the electricity supply to force the respondent and her family off the land.

Immediately after the disconnection, the respondent launched an urgent spoliation application in the court a quo against the appellant to have the electricity supply restored. Following several developments which are irrelevant for present purposes, the court a quo finally granted the spoliation remedy in favour of the respondent on 6 December 2019.

The appellant subsequently appealed this decision to the Cape High Court.

2 2 The judgment

The legal question that confronted the court, according to Rogers J, was whether the respondent had quasi-possession of the electricity supply, as meant in Masinda, and whether she may use the mandament to have such quasi-possession restored (par 20). The spoliation remedy only protects the quasi-possession of certain rights and it is unnecessary to prove that the alleged right exists to reclaim quasi-possession with the mandament (par 21). To have quasi-possession of an alleged right, the spoliatus must have performed acts demonstrating the exercise of the right (par 21). Rights the quasi-possession of which enjoy protection under the spoliation remedy are gebruiksregte (use rights) or rights which are incidental to the possession or control of the property where the professed right is exercised (pars 22 and 24, with reference to Firstrand Ltd v Scholtz2008 2 SA 503 (SCA) (Firstrand) and Masinda). However, the mere fact that such supply is used at residential premises does not automatically mean it is incidental to the possession of property (par 25). As held in Masinda, the quasi-possession of electricity and water supply does not enjoy possessory protection if such supply is personal in nature (par 23).

Rogers J held that Masinda does not confine the rights the quasi-possession of which enjoys possessory protection only to those right which are "bestowed by servitude, registration or statute" (pars 29-30). In his view, there are rights the quasi-possession of which enjoys such protection despite them being "purely personal in nature" (par 30, citing Firstrand par 13). He divided quasi-possession cases into three categories to provide clarity in this regard:

a) cases where the professed right is an alleged servitude or alleged registered statutory right; here the quasi-possession of the professed right enjoys possessory protection (such as in Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi 1989 1 SA 508 (A) (Bon Quelle) and Impala Water Users Association v Lourens 2008 2 SA 495 (SCA) (Impala));

b) cases where the alleged right is contractual in nature and where no servitude or similar right is alleged; here the quasi-possession of the right does not enjoy possessory protection (such as in Masinda and Firstrand); and

c) cases where the alleged right is personal in nature but where its quasi-possession still enjoys possessory protection (as happened in Naidoo v Moodley 1982 4 SA 82 (T) (Naidoo) and Froman v Herbmore Timber and Hardware (Pty) Ltd 1984 3 SA 609 (W) (Froman) (par 32).

In Naidoo and Froman, which were not rejected in Masinda, the courts awarded the spoliation remedy to protect the possession of the premises and not the quasi-possession of the alleged right to electricity and water supply (pars 31 and 36, referring to Masinda). The defining feature of these cases, and, hence, category (c), is that the claimant is not complaining about the severing of the electricity or water supply in itself but rather about the "adverse impact" such severing has on her possession of the premises (par 37). Rogers J ruled that the same might also be said of cases in category (b), like Masinda (par 37). However, as Masinda did not share this view, there must be another consideration which distinguishes category (c) from (b).

In category (b), the supplier of the service has no interest in the possession of the land, while in category (c) the supplier has a direct interest in such possession (pars 33-34). Consequently, in category (c) cases the service provider severs the service to evict the claimant without following due process, while in category (b) there is no such attempt on the supplier's side (par 34). The distinguishing feature of category (c) is therefore that the "alleged right to electricity is an incident of, or an adjunct to, the alleged right which the [spoliatus] has against the spoliator to be in occupation of the premises" (par 38). If electricity supply is an incident of the claimant's possession in this manner, the quasi-possession of such supply enjoys protection under the mandament and terminating such supply amounts to spoliation of the premises where the supply is used (par 38). This is because severing electricity supply used at residential premises amounts to a substantial disturbance with the possession of the premises itself (par 39). As the spoliation remedy guards against interferences of this nature and not only against complete deprivation of possession, it may be awarded (par 39).

The court found that respondent's possession of the premises (and that of her family) was permitted in terms of a precarium (revocable consent) from the appellant, which precarium extended beyond permission to occupy the premises by including the use of Eskom electricity at the store (pars 43-44, 48). The electricity supply was thus an adjunct to the respondent's permission to occupy the store and, hence, an incident of her possession of the land (pars 44, 48). The respondent's occupation of the premises, and her use of its electrical appurtenances, therefore amounted to possession of the premises while, simultaneously, amounting to quasi-possession of the alleged right to electricity (par 41). Therefore, the respondent's case fell into category (c), as the appellant's severing of the electricity supply was intended - like in Naidoo and Froman - to be a constructive eviction (par 49). Consequently, Rogers J agreed with the court a quo's order and dismissed the appeal.

3 Evaluation

3 1 Introduction

It seems that the source of an alleged right which is being quasi-possessed was initially irrelevant in spoliation proceedings, as rights the quasi-possession of which enjoys possessory protection could derive from either real or personal rights (Kleyn Mandament 394; Kleyn "The protection of quasi-possession in South African law" in Descheemaeker (ed) The consequences of possession (2014) 187, citing Firstrand par 12). However, since Telkom SA Ltd v Xsinet (Pty) Ltd 2003 5 SA 309 (SCA) (Telkom) the courts have placed more emphasis on the source of a professed right to determine whether its quasi-possession enjoys possessory protection (see, for instance, Impala; Firstrand; City of Cape Town v Strümpher 2012 4 SA 207 (SCA); Masinda). This investigation is said to prevent the spoliation remedy from replacing a claim for specific performance, which would collapse the distinction between property law and contract law (Telkom par 14). Therefore, if the right is sourced in contract, its quasi-possession does not enjoy possessory protection (Telkom; Firstrand; Impala). This trend was recently confirmed in Masinda regarding quasi-possession of electricity supply.

Given the precedent in Masinda, one might have expected Makeshift to have gone the other way, as the alleged electricity supply in this case (as in Masinda) was sourced in contract. Still, Rogers J awarded the spoliation remedy by finding that the respondent's quasi-possession of the electricity supply was an incident of the possession of the land. As mentioned in the introduction, this finding is problematic in view of (i) the way courts and scholars have previously construed the "incident of possession" requirement, and (ii) the purpose of the spoliation remedy. I address these two matters under the next two headings below.

3 2 The "incident of possession" requirement

Rogers J relied on two considerations to award the spoliation remedy in the case before him. The first entails that the courts in Naidoo and Froman granted the mandament to protect the claimant's possession of the premises where the electricity supply was used and not the quasi-possession of the supply itself (pars 36-38, with reference to Masinda par 16). The second factor, which is related to the first, is the "incident of possession" requirement.

The first factor touches on how the mandament protects quasi-possession of incorporeals. There are two schools of thought in this context. Both acknowledge that quasi-possession plays a role when dealing with the control of rights, as rights - being incorporeals - are not susceptible to possession in the same way as tangible things (Telkom par 9; Boggenpoel 105-106). However, they differ as to the relative importance of quasi-possession in cases which concern severance of electricity (and water) supply.

For the first school of thought, which consists of Sonnekus, Van der Walt, and De Waal, the point of departure is the possession of the premises where the electricity supply is used (Sonnekus "Besit van serwituutbevoegdhede, mandamentvan spolie en logika" 1989 TSAR 430; Van der Walt "Mandament van spolie" 1983 THRHR 237-238; De Waal "Mandament van spolie" 1984 THRHR 115). By using the mentioned services through the appurtenances on land, such use is incidental to (or is a component of) the possession of the land (Sonnekus 1989 TSAR 430; Van der Walt "Die mandament van spolie en quasi-besit" 1989 THRHR 451-452; De Waal 1984 THRHR 115). Hence, cutting off the service amounts to a substantial interference with the possession of the premises, which disturbance may be addressed with the spoliation remedy (Sonnekus 1989 TSAR 430; Van der Walt 1989 THRHR 452). It is unnecessary to prove the existence of the right to use the spoliation remedy here (Van der Walt 1989 THRHR 448, 451; but see contra Sonnekus 1989 TSAR 432-434). Sonnekus and Van der Walt argue that quasi-possession merely shows that the possession at hand is exceptional (Sonnekus 1989 TSAR 432-434; Van der Walt 1989 THRHR 451-452). Hence, it is unnecessary to work with this notion when dealing with electricity and water supply cases, as it does not add anything to the existing principles on possession (Van der Walt 1989 THRHR 451-452).

Kleyn, who represents the other school of thought, focuses on the quasi-possession of the right instead of the possession of land (Kleyn Mandament 391-392; Kleyn "Protection of quasi-possession" 200). He argues that by exercising physical acts normally associated with an alleged right on land, such exerciser acquires quasi-possession over the right (Kleyn Mandament 392-393; Kleyn "Protection of quasi-possession" 187, citing Firstrand par 12). It is unnecessary to prove the existence of the right to have quasi-possession over it (Kleyn Mandament 395). A right must be a gebruiksreg (use right) for its quasi-possession to enjoy possessory protection, as the mandament does not protect the quasi-possession of all kinds of rights (Kleyn "Protection of quasi-possession" 187, citing Firstrand par 13). There are two kinds of gebruiksregte, namely servitutal rights and rights which are incidental to the possession of land (which he also describes as "incidents of possession") (Kleyn "Protection of quasi-possession" 195). Examples of rights which are incidents of possession include electricity and water supply used on premises (Kleyn Mandament 393-394; Kleyn "Protection of quasi-possession" 204-205).

There must be a link between the exercise of an alleged gebruiksreg and corporeal property, like land, for such right to be an incident of possession (Kleyn Mandament 392-393; "Protection of quasi-possession" 187, citing Firstrand par 12). If this link is present, the spoliation remedy may be used to restore the quasi-possession of the alleged right, as preventing the spoliatus from exercising the right amounts to spoliation of the quasi-possession of the right. The link ensures that the spoliation remedy is not abused to compel specific performance, thereby upholding the division between contract law and property law (Kleyn "Protection of quasi-possession" 195). Although Kleyn acknowledges that electricity (and water) supply could also be regarded as a component of the possession of land, he prefers working with the notion of quasi-possession when dealing with possessory protection of incorporeals (Kleyn Mandament 393-394).

These approaches are two sides of the same coin - both reveal that the mandament may be used to restore electricity (and water) supply used on land, even though the spoliatus may not be entitled to the right. The incident of possession aspect is an essential requirement for obtaining spoliatory relief under both schools of thought.

Rogers J should be applauded for referring to, and quoting from, many of the sources cited in the previous paragraphs. In terms of the outcome in quasi-possession cases, nothing hinges on which school of thought one favours. This is because the correct application of the principles under either one leads to the same result. This view finds support in the Naidoo and Froman cases, given that the former is characteristic of the first school of thought, while the latter is reminiscent of the second one. The fact that Rogers J preferred the first school of thought is therefore unproblematic for purposes of the outcome in quasi-possession cases. Though there may be doctrinal implications for favouring one school of thought over the other, such an investigation is beyond the scope of this case note.

However, Rogers J's construal of the "incident of possession" requirement is problematic. As mentioned above, this requirement highlights the link between the exercise of a professed right and the land where it is exercised under both schools of thought. Rogers J's interpretation of the requirement differs from the views of the two schools of thought and the position in case law (Firstrand par 12; Zulu v Minister of Works, KwaZulu 1992 1 SA 181 (D) 188C). At best, Naidoo and Froman only provide indirect authority for his interpretation, as both cases were decided on the basis that the services were used on the land which the spoliatii occupied without explicit reference to an alleged occupation right they had against the spoliators. Rogers J's approach supplements the existing considerations under this requirement, as the investigation no longer pivots on whether the spoliatus performed acts normally associated with a professed right on land. If the right is sourced in contract, the spoliatus must also have an alleged agreement against the spoliator to occupy the premises. Furthermore, it must be the landlord who severs the supply. Absent this alleged occupation right and severance by the landlord, the electricity supply is not incidental to the possession of the premises and cannot, thus, be restored with the spoliation remedy. As will be seen below, these added considerations may undermine the constitutional rights of a spoliatus in certain instances.

It must be emphasised that the ratio decidendi in Masinda precluded Rogers J from only focusing on the link between the exercise of the right and the land where it is used, as per the two schools of thought. Due to the personal nature of the right in Makeshift, strict adherence to Masinda would have meant that the judge had to reject the respondent's reliance on the spoliation remedy. Instead, Rogers J voiced his disagreement with Masinda by holding that severing electricity supply in category (b) cases entails an adverse impact of one's possession of premises in the same way as in category (c) cases, which means there is no difference between these two categories (par 37). Nonetheless, he was bound by Masinda due to the doctrine of stare decisis. It is for this reason that he attempted to distinguish Makeshift from Masinda on another basis, which he did by reinterpreting the "incident of possession" requirement.

Distinguishing Makeshift from Masinda (as well as disagreeing with the latter decision)is commendable, given the Masinda court's (over)emphasis of the source of the right (Kleyn "Protection of quasi-possession" 206-208). Furthermore, Rogers J's decision appears to vindicate the constitutional rights of the respondent, namely her right to have access to adequate housing and her right against arbitrary eviction from her home (section 26(1) and 26(3) in the Constitution of the Republic of South Africa, 1996 (Constitution)).

Electricity is necessary for the "dignified and humane occupation of residential premises" (Freedman "The application of the mandament van spolie to constitutional and statutory rights" 2015 TSAR 200). It is "one of the most common and important basic municipal services and has become virtually indispensable" in modern society (Joseph v City of Johannesburg 2010 4 SA 55 (CC) (Joseph) par 34). It therefore comes as no surprise that electricity supply is a constitutive element of "adequate" housing, as meant in section 26(1) of the Constitution (G Muller "Restoring electricity use with the spoliation remedy" 2019 Pretoria Student Law Review 3-4). Where adequate housing exists, it should not "be removed unless it can be justified" Jaftha v Schoeman; Van Rooyen v Stoltz 2005 2 SA 140 (CC) par 29). The spoliation remedy protects this right against limitation by forcing those who sever electricity supply through unlawful self-help to restore the supply forthwith. This is so that the dispute may be adjudicated on the merits in subsequent legal proceedings based on the merits (see the discussion in section 3 3 below and the sources referred to there). Although there might be other remedies available to protect an electricity user's electricity supply (and, hence, the right to have access to adequate housing), such as the interdict and perhaps even remedies in electricity legislation, these remedies are arguably not as effective as the mandament. This is because they - unlike the mandament - require proof of a right (see section 3 3 below and the sources referred to there). Furthermore, where existing legislation does not provide remedies which offer the same type of protection as the spoliation remedy (which seems to be the case in the electricity setting), it might be preferable to use the mandament until existing legislation is amended (or new legislation is enacted) to provide similar protection to those whose electricity supply is severed without following due process (Boggenpoel 154-155).

Rogers J's approach also seems to uphold the right against arbitrary eviction from one's home (section 26(3) of the Constitution). In Motswagae v Rustenburg Local Municipality 2013 2 SA 613 (CC), it was held that any attenuation or obliteration of the incidents of peaceful and undisturbed occupation of one's home, without a court order, amounts to an eviction contrary to section 26(3) of the Constitution of the Republic of South Africa, 1996 (Constitution) (par 12). Given this ratio and the indispensable nature of electricity in society, as mentioned in the previous paragraph, it follows that severing electricity used at residential premises without the occupier's permission amounts to a constructive eviction without a court order and is therefore contrary to section 26(3) of the Constitution and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) (see similarly Muller 2019 PSLR 8). Forcing the spoliatus to restore the electricity supply forthwith discourages the spoliator from engaging in unlawful self-help and forces him to follow due process when evicting the spoliatus.

The fact that Makeshift seems to vindicate the mentioned constitutional rights is admirable. Yet, the judgment unfortunately only achieves this goal in a narrow setting. For example, it does not cover cases where someone severs electricity supply (which is sourced in contract) to a premises when there is no alleged occupation right between such person and the one using the supply to the land. It also does not extend to instances where someone other than the landlord cuts off such supply (compare Joseph, where the electricity supply was severed by the relevant power utility and not the landlord). Although Masinda, and not Makeshift, bears responsibility for this shortcoming, the problem remains: absent an alleged occupation right and severance by the landlord, the quasi-possession of the electricity supply does not enjoy possessory protection. Excluding the mandament from cases which fall outside the narrow exception Rogers J created will probably frustrate the two fundamental rights discussed above, as persons using electricity supply at their homes will arguably not be able to protect their section 26(1) and 26(3) rights as effectively as would be the case if they had access to this remedy.

The single-system-of-law principle, which the Constitutional Court laid down in Pharmaceutical Manufacturers Association of SA: In Re Ex Parte President of the Republic of South Africa 2000 2 SA674 (CC)(Pharmaceutical Manufacturers), entails that all sources of law, including the common law, flow from the Constitution and is subject to constitutional control (par 44; AJ van der Walt Property and constitution (2012) 20ff). All legal sources must thus promote the spirit, purport and objects of the Bill of Rights, as per section 39(2) of the Constitution (Van der Walt Property and constitution 20). The proviso to the second subsidiarity principle, which the Constitutional Court developed in light of the single-system-of-law principle, states that litigants may only invoke the common law to protect their rights if the common law does not conflict with a constitutional right or, should such a conflict exist, it can be developed to accord with the Constitution (Van der Walt Property and constitution 36ff, 115-116). Given the potential of Rogers J's understanding of the "incident of possession" requirement to undermine section 26(1) and 26(3) of the Constitution outside the narrow confines of his approach, this proviso requires that courts should adopt an interpretation of the common-law sources (or develop the common law, if necessary) which does not frustrate these fundamental rights (Van der Walt The law of servitudes (2016) 43-44; Van der Walt Property and constitution 36ff, 115-116). The construal of the "incident of possession" requirement in terms of the two schools of thought, and as applied in Naidoo and Froman, seem to provide a constitutionally-compliant interpretation, as it does not require proof of an alleged occupation right or that the spoliator must have an alleged interest in the possession of the land. It would be better to afford possessory protection to all persons who use electricity at their homes irrespective of there being an alleged occupation right or whether the spoliator has an interest in possession of the premises. That said, this avenue was unfortunately closed to Rogers J due to the precedent in Masinda.

3 3 The purpose of the mandament van spolie

The second problem with Rogers J's interpretation of the "incident of possession" notion is that it frustrates the purpose of the mandament by complicating the investigation under this requirement. The spoliation remedy is usually described as being speedy and robust in nature (Kleyn "Die mandament van spolie as besitsremedie" 1986 De Jure 1; Muller et al 328; Boggenpoel 98-1θ0). It can be obtained on an urgent basis and restores the status quo ante forthwith, as per its maxim spoliatus ante omnia restituendus est (the spoliatus must be restored to her prior position before all else) (Muller et al 326; Boggenpoel 96). Merits are irrelevant and may not be raised during spoliation proceedings at all; parties may only litigate on the merits in subsequent legal proceedings (Nienaber v Stuckey 1946 AD 1049 1053; Muller et al 349; Kleyn 1986 De Jure 6-7). The irrelevancy of merits flows from (i) the distinction between the possessory suit (where merits play no role) and the petitory suit (where rights must be proved) in South African law (Kleyn 1986 De Jure 3-5), and (ii) the rationale of the remedy.

The spoliation remedy protects bare possession, which is possession without reference to rights, and is therefore available to all types of possessors, namely both possessors and holders (Kleyn 1986 De Jure 89; Boggenpoel 96). Even a thief may institute the mandament against anyone who committed unlawful spoliation, including the owner of property (Yeko v Qana 1973 4 SA 735 (A) 739G). The fact that the remedy does not protect rights, but rather possession as a mere factual relationship, makes it unique (Kleyn 1986 De Jure 1; Boggenpoel 96-97). The purpose of the mandament is to uphold law and order by protecting stable possessory relations against unlawful dispossession (Van der Walt "Squatting, spoliation orders and the new constitutional order" 1997 THRHR 525-526). Therefore, it prevents unlawful self-help in the possessory context by discouraging people from taking the law into their own hands (Nino Bonino v De Lange 1906 TS 120 156; Kleyn 1986 De Jure 11). In Ngqukumba v Minister of Safety and Security 2014 5 SA 112 (CC) (Ngqukumba), the Constitutional Court held that "[s]elf-help is so repugnant to our constitutional values that where it has been resorted to in despoiling someone, it must be purged before any enquiry into the lawfulness of the possession of the person despoiled" (par 21). The remedy gives effect to the rule of law by requiring spoliators to immediately undo the consequences of their unlawful acts, thereby encouraging parties to submit their dispute to a court of law instead of resorting to self-help (section 1 (c) of the Constitution; Ngqukumba par 12).

The following considerations touch on the merits of a dispute and may therefore not feature in spoliation proceedings: the spoliator has a stronger right (like ownership) in the property, the spoliatus' possession is unlawful or illegal, the spoliator has a right to terminate the spoliatus' possession, and whether restoring possession to the spoliatus would inconvenience the spoliator (Muller et al 349; Boggenpoel 96-99, 129). Rogers J's construal of the "incident of possession" requirement contains elements of several of these considerations.

According to the judge, electricity supply used at a residential premises is only an incident of the possession of such premises if the supply is additional to an alleged occupation right the spoliatus has against the spoliator. The spoliator must therefore have a professed interest (like ownership) in possession of the premises. Stated differently, the spoliator must have a right to terminate the spoliatus' possession. On the flipside, the spoliatus must have an alleged right against the spoliator (like a lease) to occupy the premises. These aspects, notwithstanding their alleged or professed nature, all touch on the merits and should play no role in spoliation cases.

The spoliation remedy realises its purpose by providing immediate and effective relief. Such relief is only possible if merits are disregarded (Muller et al 331-332; Taitz "Spoliation proceedings and the 'grubby-handed' possessor" 1981 SALJ 40-41). Investigating the merits undermines the efficacy of the remedy, as it will delay the court in delivering judgment, thereby postponing the restoration of the status quo ante. This is because parties will have to lead evidence in addition to the two requirements of the mandament van spolie, namely peaceful and undisturbed (quasi-)possession and unlawful spoliation (Kleyn 1986 De Jure 6). Such an investigation, which involves a factual dispute, is more at home at a trail procedure and not the more expedient motion procedure in terms of which spoliation cases are normally decided (Muller et al 331-332). Indeed, one merely has to look at what length Rogers J went to examine the merits of the dispute before him to find that the spoliatus' use of the electricity supply was indeed additional to her alleged occupation right and that the severing of the electricity supply was intended to be a constructive eviction (pars 48-49).

Though the merits are examined in spoliation proceedings to some extent, namely, to determine whether an alleged right is an incident of possession to ascertain whether its quasi-possession enjoys possessory protection, such investigation is limited and does not dominate the proceedings (Boggenpoel 120). This restricted examination does not extend to the actual rights (namely the merits) the parties to the dispute have in the property (Boggenpoel 120-121). Though Sonnekus argues that the spoliatus must prove that he is entitled to the right for its quasi-possession to enjoy possessory protection (Sonnekus "Watervoorsiening en die mandament van spolie - die Hoogste Hof verstel die wissels" 2007 TSAR 148-149), it is trite law that rights need not be proved in quasi-possession cases (Bon Quelle 51 6E-H; Masinda par 14; Van der Walt 1989 THRHR 448, 451; Kleyn Mandament 395). Requiring proof of an alleged occupation right, which is nearer Sonnekus' view, seems to conflict with the legal position that rights need not to be proved for their quasi-possession to enjoy protection under the spoliation remedy.

Moreover, Rogers J's approach has elements of the notion of the "grubby handed" possessor (Taitz 1981 SALJ 36), which entails that a court may refuse to grant the spoliation remedy to a spoliatus who has no right in the property (Taitz 1981 SALJ 40). This concept, of which scholars are critical (Taitz 1981 SALJ 40-41; Van der Merwe LAWSA (ed Joubert & Faris) 27 (2014) par 111), has been rejected by the Supreme Court of Appeal (Yeko v Qana 1973 4 SA 735 (A) 739G-H; Ivanov v North West Gambling Board 2012 6 SA 67 (SCA) par 32). Rogers J's seems to apply this notion in a unique manner, namely where the focus falls on the reprehensible conduct of the spoliator (and not that of the spoliatus). In his view, quasi-possession of electricity supply only enjoys protection if the spoliator has an (alleged) interest (or right) in possession of the premises. Here the spoliator's hands are "grubby" due to him seeking to evict the spoliatus without following due process (in terms of section 26(3) of the Constitution and PIE), which means the court may award the spoliation remedy. The same objection to the grubby-handed possessor defence applies to this approach, namely that it touches on the merits and would defeat the purpose of the spoliation remedy (Taitz 1981 SALJ 40-41).

The emphasis on the source of the right, which involves the merits, first started to feature in quasi-possession disputes with Telkom, where it was held that the quasi-possession of a right does not enjoy possessory protection if it is sourced in contract. This approach was carried through to the electricity supply context in Masinda. In light of Makeshift, even further scrutiny of the merits is now necessary to ascertain whether the electricity supply is incidental to the spoliatus' possession of the premises. The quasi-possession investigation is therefore characterised by increasing difficulty, one where the merits play a bigger and bigger role. The Makeshift decision is unattractive because of its potential to undermine the rationale of the spoliation remedy and, hence, the rule of law.

4 Conclusion

In Makeshift, the Cape High Court held that the quasi-possession of electricity supply enjoys possessory protection despite such supply being sourced in contract. According to Rogers J, exercising a professed right on land is an "incident of possession" - which means the right's quasi-possession enjoys protection under the mandament - only if the right is additional to an alleged right the spoliatus has against the spoliator to occupy the premises where the electricity is used and if the spoliator has an interest in the possession of the land. The judge deserves praise for his attempt to distinguish the case before him from Masinda, where it was held that the mandament does not protect the quasi-possession of contractual rights at all.

Makeshift is preferable to Masinda, as it vindicates spoliatus' right to have access to adequate housing and her right against arbitrary eviction from her home (though only in a narrow setting). Nevertheless, Rogers J's decision is problematic for two reasons. Firstly, it misconstrues the "incident of possession" requirement. According to case law and academic scholarship on this notion, exercising an alleged right is incidental to the possession of premises if one performs acts usually associated with such right on land. Severing the right is then tantamount to interference with the possession of the premises, which may be addressed with the spoliation remedy. This is so irrespective of whether the right is additional to an alleged occupation right the spoliatus has against the spoliator. More significantly, Rogers J's interpretation of this notion has the potential to undermine the mentioned constitutional rights in cases where his restricted requirements are not met, such as when there is no such alleged right or where someone other than the landlord severs the supply.

Secondly, requiring proof of an alleged occupation right complicates the investigation under this requirement by touching on the merits of the dispute, which are irrelevant in spoliation proceedings. The mandament, which restores possession forthwith without considering the merits, upholds the rule of law in the possessory context by restoring the status quo ante immediately. Such restoration discourages unlawful self-help and forces litigants to submit their dispute to a court of law. It realises this goal by providing speedy and robust relief, which is only possible if courts disregard the merits. Rogers J's investigation of the merits has the danger of undermining the efficacy of the remedy by requiring courts to consider factors other than the two requirements of the spoliation remedy. Such added investigation has the potential to undermine the speedy and robust nature of the remedy and, hence, the rule of law.

The sourced-based investigation in quasi-possession cases, which began in Telkom and was confirmed in Masinda, has led Rogers J to identify a limited category of personal rights the quasi-possession of which enjoys possessory protection. Though preferable to Masinda for its potential to uphold the mentioned constitutional rights, the decision is unappealing for the reasons discussed in this case note. The decision needlessly complicates how the mandament protects the quasi-possession of incorporeals by adding to the array of considerations courts must consider when deciding spoliation cases. It would be preferable if the courts extended possessory protection to all persons who use electricity supply at their homes and not to limit it to the narrow exception Rogers J created, which can be done by returning to the legal position as per Naidoo and Froman. Given the precedent in Masinda and Telkom, however, this change will have to be brought about by either the Supreme Court of Appeal or the Constitutional Court.

 

EJ Marais

Senior lecturer, University of Johannesburg

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