The appeal court reaffirmed in May 2024 that a spoliation order to prevent self-help will not be granted where the dispossession of property possessed by another arises from the terms of an agreement or the result of the order will be to permit an illegality. It is a fundamental principle that no-one is entitled to take the law into their own hands. No-one is permitted to dispossess another forcibly or wrongfully without consent of the possessor of the property, whether moveable or immovable. The court will summarily restore the possession without any deep enquiry into the merits. One of the requirements is that the person dispossessed must have been in peaceful and undisturbed possession of the property.

The municipality alleged that the owner of a billboard had illegally allowed the billboard to remain on the municipality’s property and dismantled the billboard. The possessor sought a court order for the municipality to re-erect and restore possession of the billboard to it.

A dispute had arisen whether the billboard was lawful or not and a settlement agreement was entered into. The billboard owner was given two years in which to apply for permission to have the billboard on the property, subject to payment of the prescribed fees. A court order arising from the settlement made it plain that in the event of non-compliance by the billboard owner, the municipality would be entitled to remove the offending billboard. As the fees were never paid, the municipality acted accordingly.

In addition, the applicable by-laws require payment of the prescribed fees when an application is lodged for a billboard. The municipality was not authorised to consider the application without the fees being paid as this would violate its own regulations. In the circumstances, the municipality was justified in dismantling the billboard because the other party was not in lawful possession of the billboard at the time of removal by reason of non-payment of the fees. Allowing the structure to remain on the municipality’s land would sanction an illegality which a spoliation order cannot do.

[City of Ekurhuleni Metropolitan Municipality v Tshepo Gugu Trading CC [2024] ZASCA 81]

City of Ekurhuleni Metropolitan Municipality v Tshepo Gugu Trading CC and Another (1054/2022) [2024] ZASCA 81 (28 May 2024) (saflii.org)