IN THE HIGH COURT OF LESOTHO
In the matter between:
LEBOHANG PHOOKO APPLICANT
J & M PROPERTIES (PTY) LTD RESPONDENT
Coram : L.A. Molete J
Date of hearing : 30th April, 2015
Date of Judgment: 29th July, 2015
Spoliation Proceedings – Requirements thereof – Applicant to be in undisturbed possession – Evidence on affidavits considered – Applicant not entitled to confirmation of the rule – Application dismissed.
Matime and Others V Moruthoane LAC 1983-1989
Cabinet of the Transitional Government for the territory of West Africa v Eins1988(3) SA 369
Commander LDF & Another V Matela 1999-2000 LLR13
Mbangamthi V Sesing-Mbanganthi LAC 2005-2006 295
Scoop Industries (Pty) Ltd V Lang Laagte Estate & GM Co. Ltd 1948(1) SA 91
Mbangi & Others V Dobsonville City Council 1991(2) SA 330
Herbstein and Van Winsen, “The Civil Practice of the Supreme Court of South Africa (4th ed) Juta & Co
Harry Silberbeg “The Law of property” Butterworths (1975)
 The Applicant applied to this Court for the following relief:
“1. Dispensing with the rules of court concerning notices and service of process on account of the urgency of the matter.
2. A rule nisi returnable on a date and time determinable by the above honourable court calling upon Respondent to show cause if any why the following order shall not be made final, namely;
“2.1 Interdicting and restraining Respondent from interfering with Applicant’s development of his site as held by lease number 12281-010, Hoohlo Industrial, Maseru except by due process of law;
2.2 Directing Respondent to remove its security guards, vehicles, plant, machinery, fencing and apparatus or other property from the aforesaid property;
2.3 Directing Respondent to pay costs on an attorney and client scale and;
2.4. Granting Applicant further/ and or alternative relief.”
 The Court granted an interim order of interdict in terms of Prayers 1 and 2.2 to operate with immediate effect. The matter was opposed and finally ready to be heard after a number of postponements to complete the filing of papers and heads of argument.
 The application was moved and granted on the basis that at the time there was a matter before this court in terms of which J & M Properties (Pty) ltd was involved in a dispute with one Masitise Selesoconcerning this property. In that dispute J & M Properties (Pty) ltd sought to compel Respondent to either transfer the disputed site to it, or refund the sum of M400,000-00 allegedly paid for the plot.
 The present Applicant claimed title to the same plot, and alleged that Respondent had despoiled him and forcibly removed him from the site and placed its own security guards, vehicles and machinery on the said property.
 Applicant accordingly moved this application in the form of mandament van spolie. Indeed at the hearing of the matter applicants counsel maintained the nature of the application was for a spoliation order.
 The Respondent raised a number of objections in limine to the application. They consisted of non-joinder, lack of locus standi and abuse of exparte procedure. There was a number of authorities to support the points in limine including:
 The authoritative text of Herbstein and Van Winsen, The Civil Practice of the Supreme Court of South Africa was also used as authority for where ex parte application procedure may be used.
 In an application of this nature, it is necessary to allege and prove that a person who is entitled to legal possession of a thing or right has been unlawfully ousted.
Mbangamthi v Sesing-Mbanganthi
 In his Book, “The Law of Property”, the learned author Harry Silberberg puts it as follows;
“A possessor who has been deprived; or despoiled of his possession by force, fraud or stealth, may apply to court by mandament van spolie for an order directing to return the thing to him immediately…….all that the applicant must prove is that he was in possession and that he was ousted illicitly from such possession-----------the first question in every spoliation case must, of course, be whether the applicant was in possession of the thing which he claims should be returned to him.”
“in other words, the possession sought to be protected or restored must be possession which clearly exists, which is sufficiently firm or established …….. The justification for a spoliation order would be lacking where applicant for such order was still in the process of trying to wrest possession from the respondent.”
“In an attempt to take occupation of the aforesaid plot after paying the agreed consideration (value) demanded by the owner; I was met with resistance from Respondent’s security
guards on the plot with instructions at gunpoint to stop me and my hired construction to start developing this land belonging to me. This was on 2nd to 5th December 2013 when I met this resistance.”
 It is clear from the affidavit of the applicant that he never had any peaceful and undisturbed possession at any point in time. The only possible inference to be made from his statement is that when he sought to take possession he was prevented by respondent’s security guards who were already on the plot, presumably on respondent’s instructions.
For the Applicant : Adv. M.Nthloki KC
For Respondent : Adv. A.M. Chobokoane (Instructed by
V.M. Mokaloba attorneys)
 LAC 1983-1989
 1988(3) SA 369
 1999-2000 LLR13
 4th edition Juta & Co P367
 LAC (2005-2006) 295 at 296
 Page 86
 1948 (1) SA 91 at 98-99
 1991 (2) SA 330
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