THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No: 739/07

ATM SOLUTIONS (PTY) LTD
Appellant

and

OLKRU HANDELAARS CC                             1st Respondent
ABSA BANK LIMITED
2nd Respondent

Neutral citation:  ATM Solutions (Pty) Ltd v Olkru Handelaars
CC(739/2007) [2008] ZASCA 153 (27 November
2008)

Coram:
STREICHER, CLOETE, LEWIS, JAFTA and
PONNAN JJA

Heard:
14 November 2008
Delivered:
27 November 2008

Summary:        Mandement van spolie not granted for the protection
or enforcement of a mere contractual right: appeal
against order of high court dismissed.

______________________________________________________________
ORDER

On appeal from the High Court Cape Town (Griesel J  sitting as  court of first
instance).
The appeal is dismissed with costs.

JUDGMENT
LEWIS JA (Streicher, Cloete, Ponnan and Maya JJA concurring)

[1] This is an appeal against a judgment of the Cape High Court (Griesel
J),1 with its leave, refusing the grant of a mandament van spolie against the
two respondents. The appellant, ATM Solutions (Pty) Ltd (ATM Solutions),
supplies and instals automated teller machines (ATMs) at the premises of
retailers. The first respondent, Olkru Handelaars CC (Olkru), runs a
convenience store in Worcester known as Kwikspar Breedevallei (Kwikspar),
in which ATM Solutions had installed an ATM in 2007. The second
respondent, Absa Bank Ltd (Absa), also instals ATMs within stores and
elsewhere. ATM Solutions brought an urgent application for a spoliation order
against both respondents when Olkru had the ATM in the Kwikspar premises
disconnected, and removed and placed in a storeroom. The claim against
ABSA was brought on the basis that it was a co-spoliator, having facilitated
immediate replacement of ATM Solutions’ ATM in Kwikspar with its own.

1 Now reported as ATM Solutions (Pty) Ltd v Olkru Handelaars CC & another 2008 (2) SA
345 (C).

[2] The high court refused the application for a spoliation order on the
basis that ATM Solutions had nothing more than a contractual right to have its
machine in place in Kwikspar and that the mandament is not the appropriate
remedy for the enforcement of contractual rights. In reaching this decision the
court considered itself bound by recent decisions of this court, in particular
Telkom SA Ltd v Xsinet (Pty) Ltd2 (Xsinet) and First Rand Ltd t/a Rand
Merchant Bank v Scholtz NO3 which have held that in order for rights to
qualify for protection through the grant of a spoliation order, they must be
‘gebruiksregte’ (rights to use property) or incidents of the possession or
control of property. The purpose of spoliation orders, it is trite, is to stop
people from taking the law into their own hands, and to preserve the peace,
rather than to order specific performance of a contract.

[3] It is thus necessary to determine the nature of the right on which ATM
Solutions relied in claiming spoliatory relief. ATM Solutions and Olkru had
entered into a contract, a ‘Site Location Agreement’, in February 2007, in
terms of which Olkru would provide floor space within the premises occupied
by Kwikspar for an ATM supplied by ATM Solutions. The ATM was intended
for use by Kwikspar’s customers, and was installed in the store with wooden
panelling around it, and was fixed to the floor with bolts.

[4] The agreement provided that ATM Solutions would ‘use and occupy’
the premises for the ‘sole purpose of placing and operating’ an ATM. The

2 2003 (5) SA 309 (SCA).
3 [2007] 1 All SA 436 (SCA); 2008 (2) SA 503.

ATM was placed at a ‘mutually agreed location’ and ATM Solutions undertook
responsibility for the ‘installation, operation and maintenance’ of the ATM
during the currency of the contract. Olkru was obliged to provide the electricity
for the ATM, while ATM Solutions ensured connectivity to banks. Olkru, as the
‘user’, was not entitled to ‘permit the removal’ of the ATM from the premises,
and granted ATM Solutions, and ‘third party servicing agents’ ‘reasonable
access to the ATM’ during Olkru’s ‘normal hours of operation or, for purposes
of servicing, during pre-opening and post-closing hours as are mutually
agreed’. In the event of the ATM failing to operate, Olkru undertook to notify
ATM Solutions within 24 hours; and ATM Solutions would ‘have the right at
any reasonable time during User’s business hours to enter’ the premises to
inspect and repair the ATM .

[5] On 17 September 2007 Olkru, without the consent of ATM Solutions,
disconnected the electricity supply to the ATM and moved the machine to a
storeroom on the Kwikspar premises. Immediately afterwards an ATM
belonging to Absa, and bearing its brand, was installed in the same space –
hence the claim that the respondents were both guilty of spoliation.  Although
ATM Solutions initially claimed specific performance of the contract against
ATM Solutions, in the alternative, it did not pursue this relief.

[6] The basis of the argument that ATM Solutions was entitled to a
spoliation order was initially that the ATM occupied a specific mutually agreed
part of the premises, that it would remain available for use by Kwikspar
customers during normal business hours, and that ATM Solutions was entitled

to maintain and service the ATM. These allegations were meant, presumably,
to establish that ATM Solutions actually had possession of the machine.
Olkru’s reply, however, showed that ATM Solutions had never had actual
possession of the ATM within Kwikspar.

[7] It was not disputed that the ATM and the floor space where it stood
were at all times in Olkru’s possession and control; that only Olkru held the
keys to the Kwikspar premises, and indeed the keys to the ATM itself; that
Olkru controlled all access to the ATM; and that an employee of Olkru stocked
the ATM with money, changed the paper rolls for receipts, and effectively
operated the ATM. Access by ATM Solutions to the ATM was controlled by
Olkru. The claim to actual possession of the ATM thus had to fail.

[8] However, ATM Solutions asserted in its replying affidavit that it
‘physically, through the ATM device, occupied an identifiable portion of the
premises’,  a proposition that was argued before the high court and this court
to mean that ATM Solutions had ‘quasi-possession’ which would justify a
spoliation order should it be precluded from exercising its right.

[9] The cases where quasi-possession has been protected by a spoliation
order have almost invariably dealt with rights to use property (for example
servitudes or the purported exercise of servitudes – ‘gebruiksregte’4) or an
incident of the possession or control of the property. The law in this regard

4 The classic cases on granting a spoliation order for the protection of the exercise or
purported exercise of a servitude are Nienaber v Stuckey 1946 AD 1049 and Bon Quelle
(Edms) Bpk v Munisipaliteit van Otavi  1989 (1) SA 508 (A).

was recently succinctly stated in First Rand Ltd v Scholtz 5 where Malan AJA
pointed out that a spoliation order ‘does not have a “catch-all function” to
protect the quasi-possessio of all kinds of rights irrespective of their nature. In
cases  . . . 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 contractual obligations is claimed: its
purpose is the protection of quasi possessio of certain rights.   It follows that
the nature of the professed right, even if it need not be proved, must be
determined or the right characterized to establish whether its quasi possessio
is deserving of protection by the mandament.’6 Mere personal rights, said
Malan AJA, are not protected by the mandament. Thus only rights to use or
occupy property, or incidents of occupation, will warrant a spoliation order.7

[10] Counsel for ATM Solutions sought to persuade us that this matter is
different from Xsinet and First Rand in both of which the ongoing performance
of a contract (the first for the supply of telephone connectivity, and the second
for water) was in issue. ATM Solutions, on the other hand, it was argued, had
had not only a right to maintain their machine in place, but it had in fact
already been installed and connected, and then removed. The physical state
of presence and connectivity was changed through Olkru’s conduct. Ongoing
performance was not being claimed. I fail to see the distinction. ATM
Solutions sought an order that its ATM be re-installed and reconnected. That

5 Above, para 13.
6 Footnotes omitted.
7 See also Xsinet above para 14; cf Impala Water Users Association v Lourens NO 2008 (2)
SA 495 (SCA), reported first in [2004] 2 All SA 476, where the court considered that the rights
to water in issue were not purely contractual in origin and that they were protected by the
mandament.

seems to me no different from claiming specific performance of a contract, as
was the case in Xsinet and First Rand.

[11] Counsel also relied on cases where the mandament has been granted
to restore incidents of occupation of premises such as the supply of electricity
or water by a lessor.8 Particular reliance was placed on Shapiro v South
African Savings and Credit Bank9 where the court ordered the replacement of
a nameplate on the wall of the entrance to the building in which Dr Shapiro
hired premises. Shapiro had no control over the entrance, and the nameplate
was not affixed to his premises but to another part of the building. Roper J
held, however, that he was given the right, ‘as part of his conditions of
tenancy’ to occupy the space covered by his nameplate.10 When the building
was sold and the new owner removed the nameplate, Shapiro applied
successfully for a spoliation order that the nameplate be restored.  However,
Roper J went on to say,11 ‘it seems to me that the applicant had a contractual
right as against the respondent to have his nameplate upon that defined
portion of the respondent’s premises. I can see no reason why this right
should not be capable of protection by a spoliatory order’.

[12] Counsel for ATM Solutions argue that the ‘conditions of tenancy’
referred to by Roper J were the source of the contractual right and that the
right to have his nameplate at the entrance was not an incident of Shapiro’s

8 See Naidoo v Moodley 1982 (4) SA 82 (T) and Froman v Herbmore Timber and Hardware
(Pty) Ltd 1984 (3) SA 609 (W).
9 1949 (4) SA 985 (W), approved in several cases since, notably Bon Quelle above at 515C-
E.
10 At 991.
11 Ibid.

tenancy of another part of the building. I do not agree. The placing of a
nameplate at the entrance to a building is part of the right of occupation of
premises just as is the supply of electricity, water or other services provided
by a lessor. The nameplate both indicates the presence of the lessee in the
building and directs people to his premises. That Shapiro had no control over
the entrance does not make it any less part of his ‘conditions of tenancy’.

[13] In this case, too, the origin of the right to have the ATM in the Kwikspar
premises is contractual. Counsel for ATM Solutions contend that we must
distinguish between the origin of the right it seeks to protect – the contract –
and the fact that the ATM was installed in the Kwikspar premises and
connected to the Kwikspar electricity supply. I do not see the distinction.  ATM
Solutions did not occupy the premises, did not control the ATM and did not
have access without the co-operation of Olkru.  It did not control any part of
the premises through the presence and connection of the ATM.

[14] Indeed, counsel for Olkru contended that ATM Solutions had
‘relinquished control’ of the ATM. That, argue counsel for ATM Solutions, is
not the point. They may have relinquished control of the machine, but they did
not relinquish their right to have the machine present and connected in the
Kwikspar premises. But that right is in my view purely contractual. The
presence of the machine in Kwikspar and its connection to Kwikspar’s
electricity supply were nothing more than consequences of the contract, and
not incidents of actual possession or occupation. See in this regard First

Rand,12 and Wille’s Principles of South African Law 9 ed  (2007) (general
editor Francois du Bois) where C G van der Merwe and Anne Pope state:13
‘Protection for non-servitutal rights appears to be confined to those rights that flow
from or are incidental to possession of corporeal property. . . Where the non-
servitutal right of use is separate from applicant’s possession of corporeal property it
is almost inevitably a contractual right which is not protected by the mandament van
spolie.’

[15] Thus in my view the relief ATM Solutions sought in the high court –
reinstallation and reconnection of its ATM in the Kwikspar premises –
amounted to no more than an order for specific performance of the contract.
In the circumstances the high court correctly dismissed the application for a
spoliation order. The application against Absa accordingly also had to fail.

[16] The appeal is dismissed with costs.

_____________
C H Lewis
Judge of Appeal

12 Para 14.
13 Pages 458-459.

Appearances:

For the Appellant:

A Subel SC and J Blou

Instructed by:

TWB-Tugendhaft, Wapnick, Banchetti & Partners

Cape Town

Honey Attorneys

Bloemfontein

For the 1st Respondent:
A D V LaGrange SC

Instructed by:

Conradie Davids

Cape Town

Phatsoane Henney Inc

Bloemfontein

For the 2nd Respondent:     R T Williams SC

Instructed by:

Jan S de Villiers

Cape Town

Rosendorff Reitz Barry

Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

Case no: 739/2007

In the matter between:

ATM SOLUTIONS (PTY) LTD

APPELLANT

and

OLKRU HANDELAARS CC AND ABSA BANK LIMITED               RESPONDENTS

From :
The Registrar, Supreme Court of Appeal
Date:
26  November 2008
Status:
Immediate

Please note that the media summary is for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal

The Supreme Court of Appeal today upheld a decision of the Cape High Court
(Griesel J) that the disconnection, removal and storage of an automated teller
machine, installed and connected by the appellant in a convenience store in
Worcester, Kwikspar Breedevallei, by the owner of the store, did not amount to
spoliation – the unlawful dispossession of property or a right to use property.

The SCA confirmed that the appellant’s right to have the machine in place, and
electrically connected, in terms of a contract with the store owner, was purely
contractual and that the relief sought amounted to an order for performance of the
contract. A spoliation order – requiring restoration of possession or control of
property before any right is determined – is not available for the enforcement of a
contractual right. A spoliation order will be granted only where a litigant is deprived

of actual possession or control of property, or of a right to use property or an incident
of the right to use it.

--- ends ---