This blog was co-authored by Lesego Moloisana, Candidate Attorney.

The Applicant was the registered owner of commercial property. On 04 November 2021, the owner of commercial property cancelled the lease agreement and later changed the locks on the premises after placing the lessee on terms for arrear rentals. The lessee contended that the cancellation was not in accordance with the lease agreement and amounted to unlawful dispossession. The Respondent successfully instituted a spoliation application to restore its possession of the property on the basis that the lease agreement did not entitle the lessor to repossess the property without recourse to the law.

The spoliation order is a common law possessory remedy which returns property to a party that was previously in peaceful possession of the property and subsequently dispossessed without a court order.

In order for a party to succeed with their spoliation application, they must prove that they were:

  1. In peaceful and undisturbed possession of the property; and
  2. Unlawfully dispossessed of that possession.

The party dispossessed does not need to have a legal right to possess the property and the dispossession must have occurred without their consent or court involvement.

On appeal, the lessor’s grounds of appeal where as follows:

  1. The lease agreement was lawfully cancelled, and the lessee did not prove their legitimate right to occupy the property in terms of Clause 17 of said agreement and failed to consider that the parties were bound by clause 18 of the lease agreement which permitted the lessor to repossess the property after termination for a breach not remedied after 7 days’ notice.

It was alleged that Clause 18 of the lease agreement was in conflict with the fundamental principles of the Mandament van Spolie.

The court relied on the principle that agreements, freely and voluntarily concluded, must be honoured (pacta sunt servanda) and emphasised that contracting parties may exercise their right to freely enter into contracts within the bounds of constitutional values of equality and dignity. The court applied the test in section 34 of the Constitution to the facts, that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court. The court found that the clause unfair because it made provision for the termination of possession without seeking judicial oversight. It is only in circumstances where the principle of pacta sunt servanda is counterbalanced with the constitutional principles of dignity and equality, that provisions in contracts that regulate extra-curial process may be justified. The court found the formulation of the clause in this policy to be at odds with the above constitutional principles and the spoliation order was granted, thus restoring possession to the lessee. Self-help is seldom permitted by our court, especially in the light of section 34.

Graceful Blessings (Pty) Ltd v Zander Burger Properties (Pty) Ltd [210/2022] A32/2023