Court name
Supreme Court
Case number
SA 20 of 2009

Kock t/a Ndhovu Safari Lodge v Walter t/a Mahangu Safari Lodge and Others (SA 20 of 2009) [2010] NASC 12 (26 October 2010);

Media neutral citation
[2010] NASC 12


NO: SA 20/2009


the matter between:











Coram: MARITZ,

Heard on: 08/03/2010

: 26/10/2010




  1. This
    is an appeal from the judgment of Parker J in the High Court of
    Namibia, delivered on 23 June 2009, in which the application by
    Horst Kock trading as Ndhovu Safari Lodge (the appellant), was
    dismissed with costs. Three respondents were cited but only the 1st
    respondent, trading as Mahangu Safari Lodge, opposed the
    application. The other two respondents did not oppose the
    applicant’s claim and played no part in the litigation and
    will not be referred to any further. The 1st respondent
    will be referred to merely as the respondent. The matter
    concerns a dirt feeder road which connects two adjacent lodges to a
    public road in the Hambukushu Tribal Authority in the Kavangu

  1. The
    facts are largely common cause. The feeder road, which traverses
    public space in a communal area, is not a proclaimed road as defined
    in the Roads Ordinance, 1992 (Ordinance 17 of 1992). As described
    by Parker J, in his judgment, “[a] part of the length of the
    feeder road lies in a flood plain and during rainy seasons the
    vicinity of the feeder road gets flooded and so it is not easily
    passable.” Before the events that led to the dispute arose,
    the feeder road was used freely by the occupants, staff and guests
    of the two lodges. The trouble began when the respondent effected
    improvements on part of the feeder road by upgrading or building-up,
    as Parker J describes it, “a longitudinal part of the feeder
    road for a distance of about 200m in the vicinity of the flood plain
    and to the south of the point where there is a trifurcation of the
    feeder road to the two lodges and a third lodge.” The
    respondent thereafter erected a lockable and manned gate on the
    longitudinal part of the feeder road that had been upgraded and
    allowed everybody, including the appellant’s employees, to use
    the upgraded longitudinal part of the feeder road, but excluded the
    appellant and guests of the appellant’s lodge. The respondent
    did not block the rest of the feeder road, namely, the unimproved
    portion, from use by the appellant. It is the exclusion described
    above that led to the appellant’s challenge.

  2. Parker
    J posed the problem as follows: was the appellant in peaceful and
    undisturbed possession of the 200 metre upgraded longitudinal part
    of the feeder road at the time the appellant contends the respondent
    deprived him thereof? I would pose the question in a slightly
    different way, namely: did the appellant have peaceful and
    undisturbed use of the feeder road, including the 200 metre
    longitudinal part that was later upgraded, at the time respondent
    interfered with it and blocked that improved portion from being used
    by the appellant? Depending on the answer, the next question might
    be whether or not this use, which is referred to in the papers
    variously as the appellant’s “right of way,”
    “right to access,” “right to use the road”
    or a “clear right to use the road,” constituted a type
    of possession that, in law, qualified for the protection of the
    mandament van spolie.

  1. The
    remedy has found recognition in the modern Namibian common law (
    v Van As

    1996 NR 345 (HC) and it is trite that it is available to protect
    possession. (
    and another v Kandjoze and others

    2007 (2) NR 749;
    Bonino v De Lange

    1906 TS 120;
    v Stuckey

    1946 AD 1049;
    v Qana

    1973(4) SA 735 (A);
    Checkers Ltd v Pangbourne Properties Ltd

    1994(1) SA 616 (W)). What gives rise to controversy is the nature
    and ambit of the remedy. What is clear is that since it is a
    possessory remedy, it serves as a counter against spoliation.
    and Schoeman
    The Law
    of Property
    edition at 287). Its purpose is to provide robust and speedy relief
    where spoliation has occurred to restore the
    quo ante

    because, as stated by Van Blerk JA in
    v Qana
    1973(4) SA 735 (A), of the “...fundamental principle that no
    man is allowed to take the law into his hands and no one is
    permitted to dispossess another forcibly or wrongfully and against
    his consent ‘of the possession of property, whether movable or
    immovable’ ....”
    Checkers Ltd v Pangbourne Properties
    SA 616 (W)

    J stated:

It is trite that the purpose of
the mandament van spolie is to protect possession without having
first to embark upon an enquiry, for example, into the question of
the ownership of the person dispossessed. Possession is an important
juristic fact because it has legal consequences, one of which is that
the party dispossessed is afforded the remedy of the mandament van

  1. Does
    the protection of the mandament van spolie extend to incorporeals?
    In Nienaber v Stuckey 1946 AD at 1056 it was held that the
    possession of incorporeal rights is protected against spoliation and
    in Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi 1989 (1)
    508 (A), the Appellate Division of South Africa held that the
    mandament van spolie is available for the restoration of lost
    possession in the form of quasi-possession which, in that case,
    consisted in the actual use of a right of servitude. I understand
    this to refer to the limited role of the mandament van spolie and to
    mean that although an incorporeal thing like a servitude was
    incapable of physical detention, it was indeed capable of being
    quasi-possessed by the actual use of the servitude. Hefer JA stated
    that, “[t]he status quo that the spoliatus desired to
    restore by means of the mandament van spolie was the factual
    exercise of the servitude, and not the servitude itself.”
    What one extracts from these decisions, and others such as Shoprite
    Checkers supra, Zulu v Minister of Works, KwaZulu and Others,
    (1) SA 181 (T) is that the true purpose of the mandament van spolie
    is not the protection and vindication of rights in general, but
    rather the restoration of the status quo ante where the
    spoliatus has been unlawfully deprived of a thing, a movable or
    immovable, that he had been in possession or quasi-possession of.
    Thus in Zulu, where the applicant had sought an order for the
    respondent to supply him with water, the Court held that the
    applicant had never had possession of the water and could not
    therefore found his claim on loss of physical possession. Mandament
    van spolie had no role there. As a concept or a form of relief, it
    is not concerned with the protection of rights “in the widest
    sense” but with the restoration of factual possession of a
    movable or an immovable. This extends to incorporeals such as the
    use of a servitudal right. It is the limited nature of the scope of
    the mandament van spolie that excludes, for instance, the right to
    performance of a contractual obligation from its operation. (See
    also Plaatjie and Another v Olivier NO and Others, 1993 (2)
    SA 156 (O) at 159F). These principles, with which I respectfully
    agree, were further clarified, specifically in relation to
    quasi-possession, in ATM Solutions (Pty) Ltd v Olkru Handelaars
    cc and Another,
    2009 (4) SA 337 (SCA) at 340 - 341 where Lewis
    JA quoted with approval remarks by Malan AJA in the First Rand
    Ltd t/a Rand Merchant Bank and Another v Scholtz NO and Others,
    (2) SA 503 (SCA) at p 510:

... The cases where
quasi-possession have been protected by a spoliation order have
almost invariably dealt with rights to use property (for example,
servitudes, or the purported exercise of servitudes ... or an
incident of the possession or control of the property. The law in
this regard was recently succinctly stated in First Rand Ltd v
(footnote omitted) where Malan AJA pointed out that - ...
[t]he mandament van spolie does not have a ‘catch-all function’
to protect the quasi-possessio of all kinds of rights
irrespective of their nature. In cases as where a purported servitude
is concerned the mandament is obviously the appropriate remedy, but
not where contractual rights are in dispute or specific performance
of specific obligations is claimed. Its purpose is the protection of
quasi-possession of certain rights. It follows that the nature of the
professed right, even if it indeed not be proved, must be determined
or the right characterized to determine whether its quasi possession
is deserving of protection by the mandament.” (See also The
Three Musketeers Properties (Pty) Ltd and Another v Ongopolo Mining
and Processing Ltd and 2 Others (unreported)
Supreme Court case
SA 3 of 2007.

spoliation is committed also when a co-possessor unlawfully takes
over exclusive control of the thing. (See Du Randt v Du Randt
1995 (1) SA 401 (O)).

  1. What
    is the essence of the relief sought by the appellant? Quite clearly
    he approached the court to seek the restoration of the
    quo ante
    had been disturbed by the respondent. It is indeed the exercise of
    a right that appellant has been unlawfully deprived of and all he
    wants is the restoration of the exercise of the specific right that
    has been unlawfully taken away from him. He is not suing for the
    realisation or enforcement of a right in the widest sense. What is
    sought is not specific performance of a contractual obligation; but
    the restoration of the factual position that had obtained, until the
    respondent intervened. That factual position bears repeating: The
    feeder road was in the communal area and was used by both the
    appellant and the respondent, their guests and their employees,
    freely and for an appreciable time. The respondent changed this
    state of affairs
    the appellant. He blocked appellant’s right to use that
    particular portion of the feeder road and, by his conduct, claimed
    exclusive control over it. It is irrelevant that the appellant could
    have created for himself, other routes or adopted other means of
    self-help. He had been deprived of the use of a portion of the road
    that he had enjoyed usage of freely, without having to ask anybody
    for permission, and that gave him access to the public road.
    However one characterizes the right that had been exercised by the
    appellant, it came to an abrupt stop and that constitutes a
    deprivation perpetrated by the respondent, and this without invoking
    an order of a court of law. It is a classic case of taking the law
    into one’s own hands. In this context, it is relevant to
    highlight the public character of the feeder road. It is common
    cause, and judicial notice may be taken of these facts, that in
    terms of legislative provisions, the communal land on which the
    feeder road is was vested in and placed under the control of the
    Government of Namibia by Article 124 read with Schedule 5 of the
    The respondent has argued that the mandament van spolie is not
    available or applicable in this case because there is no question of
    the applicant having had possession, or quasi possession of the
    improved portion of the feeder road. Instead, the essence of the
    argument went, the appellant was seeking to exercise some
    non-descript right and had failed to demonstrate that it was a right
    in respect of which the relief of mandament van spolie was
    available. By now it is settled law that the possession of
    incorporeal rights is protected against spoliation. (See
    v Stuckey,
    AD at 1056). In the

    case it was held that the mandament van spolie is available for the
    restoration of lost possession, in the sense of quasi possession,
    which in that case consisted in the actual use of a right of
    servitude. However, Hefer JA, speaking for the Court, refused to
    accept that a servitudal right had to be proved for the institution
    of a spoliation order, since that would amount to an investigation
    of the merits of the case. I am in respectful agreement with the
    learned Judge of Appeal. In this context, I hold further that the
    usage exercised by the appellant was one protected by the mandament
    van spolie. The decision in
    accordingly distinguishable from the present case. It follows that
    the appeal must be upheld and the judgment of the court a quo must
    be set aside.

  1. There
    is, to my mind, no reason why the order of costs should not follow
    the result. Both in the rule nisi and in argument before this
    Court, the appellant insisted on a special order of costs in the
    application a quo. It is true that the respondent had taken
    the law into his own hands, and that is in fact the essence of the
    wrong that he committed. His attitude towards the appellant could
    be described as rather high-handed, particularly, if one has regard
    to the proprietary terms with which he referred to the disputed
    portion of the feeder road as “his” road. It is
    precisely this type of conduct which could easily lead to the
    disturbance of the public order. (See Ross v Ross, 1994(1)
    SA 865 (SECLD)). I however consider that this is not a case in which
    a special order for costs should be ordered. It may well be that the
    respondent was badly advised (and the Court a quo apparently
    agreed with that advice). The circumstances in my view do not
    justify a special order of costs and I have accordingly proposed an
    ordinary costs order.

  1. In
    the premises, the following order is made:

(a) The appeal is upheld
and the judgment and order of the Court a quo are set aside
and replaced with the following:

Paragraphs 2.1 – 2.3 of
the rule nisi issued on 15 February 2008 are confirmed with
costs, such costs to include the costs of one instructing and one
instructed counsel.”

(b) The First Respondent
is ordered to pay the costs of the appeal, such costs to include
those consequent to the employment of one instructing and one
instructed counsel.









Counsel on behalf of
Appellant: Mr. J. A. N. Strydom

By: Diekmann Associates

on behalf of 1st Respondent: Mr. H. Geier

By: Du Pisani Legal Practitioners

Although this decision was overruled by the Supreme Court of Namibia
in an unreported judgment of the same name delivered on 3 November
2009 under case no. SA42/2007, it was not on the point cited. The
principle was in fact endorsed.

Yeko v Qana, 1973 (4) SA 735 (A) at 739D-H. See also
Silberberg supra at 292.

See also Section 17 of the Communal Land Reform Act 5 of 2002 which

17 Vesting of
communal land

  1. Subject to the
    provisions of this Act, all communal land areas vest in the State
    in trust for the benefit of the traditional communities residing in
    those areas and for the purpose of promoting the economic and
    social development of the people of Namibia, in particular the
    landless and those with insufficient access to land who are not in
    formal employment or engaged in non-agriculture business

No right conferring
freehold ownership is capable of being granted or acquired by any
person in respect of any portion of communal land.”