THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 1225/2018

In the matter between:
ESKOM HOLDINGS SOC LIMITED                                       APPELLANT
and
NOMAJAPAN
MASINDA
RESPONDENT

Neutral citation:  Eskom Holdings SOC Limited v Masinda (1225/2018) [2019]
ZASCA 98 (18 June 2019)

Coram:
Leach, Wallis and Mocumie JJA and Mokgohloa and Weiner AJJA
Heard:
17 May 2019

Delivered: 18 June 2019

Summary: Spoliation – rights protectable by mandament van spolie – whether
an electricity supply in itself an incident of possession of the property to which
it is delivered or a mere personal right – whether such supply protectable by the
mandament.

________________________________________________________________
ORDER
________________________________________________________________

On appeal from: Eastern Cape Division of the High Court, Mthatha (Jolwana
AJ sitting as court of first instance):

The appeal is upheld, with costs.
The order of the court a quo is set aside, and substituted with the
following:
‘The application is dismissed, with costs.’

________________________________________________________________
JUDGMENT
________________________________________________________________

Leach JA (Wallis and Mocumie JJA and Mokgohloa and Weiner AJJA
concurring)

[1] The issue we are called upon to decide in this appeal is whether the
respondent (Ms Masinda) was entitled to a spoliation order when the appellant,
Eskom Holdings SOC Limited (Eskom), disconnected the supply of electricity
to immovable property she owns and possesses in Tsolo, Eastern Cape. The
court a quo decided she was, and ordered that the electrical supply to her
property be reconnected. The appeal against that order is with leave of this
court.

[2] Eskom is a public company with its entire share capital held by the State.1
It is the national generator and distributor of electricity and is licensed to
provide electricity directly to customers in the area in which Ms Masinda’s
property is situated. Illegal electricity connections to Eskom’s power grid,
which by their very nature are fraught with peril, appear to have become a
substantial problem in the area. Regarding itself obliged to take steps to avoid
harm occurring due to dangerous and unauthorised connections to its grid, on
8 August 2017, Eskom sent a team made up of members from its various
departments to hold an inspection in Tsolo. On doing so, various illegal
connections to the Eskom grid were identified and then disconnected.

[3] One of the properties identified as having an illegal connection was that
of Ms Masinda. The alleged defects in the supply installation on her property
were unfortunately not set out in Eskom’s papers with the clarity one would
have expected. Rather it adopted a procedure, previously criticised by this
court,2 of adducing evidence by way of hearsay allegations in its main
answering affidavit, supported by so-called ‘confirmatory affidavits’ by the
witnesses who should have provided the necessary details, but who merely
sought to confirm what had been said in the main affidavit ‘in so far as
reference [has been] made to me’. Despite this slovenly practice, it can be
accepted that Eskom averred that the electrical supply installation included
equipment of incorrect sizes, did not meet prescribed standards, had been
erected by an unauthorised contractor, and constituted an immediate danger to
the public.

[4] For this reason, the supply to Ms Masinda’s property was disconnected.
On doing so, certain Eskom officials approached Ms Masinda to ask her about

1 Sections 2 and 3 of the Eskom Conversion Act 13 of 2001.
2 See eg Drift Supersand (Pty) Ltd v Mogale City Local Municipality & another [2017] ZASCA 118; [2017] 4
All SA 624 (SCA) para 31.

her prepaid electricity meter and its connection to the national grid. Instead of
providing the details requested, she began shouting at them, stating that she had
applied for electricity and now that someone else had connected her, Eskom
should not disconnect her. Ms Masinda denied these allegations, but as the
matter is to be decided on the affidavits, they must be accepted for present
purposes.

[5] Ms Masinda alleged in her replying affidavit that her meter and
connection had been installed by a contractor whom she understood was
Eskom’s agent. This, according to Eskom, was inconsistent with what she had
said at the time of the disconnection. It further alleged that it had quoted Ms
Masinda for a 60 amp prepaid meter installation which she had not accepted.
Whatever may have happened, it does appear that she was purchasing electricity
which was then being drawn through a meter installed on her property.
Unfortunately for her, according to Eskom, this was being done through an
illegal and dangerous installation which led to her supply being disconnected.

[6] Ms Masinda was not prepared to take this lying down. By way of notice
of motion dated 18 August 2017, but filed only on 1 September 2017, she
launched urgent proceedings against Eskom in which she sought, inter alia, an
order obliging it to forthwith restore the electricity supply to her home. In
seeking this relief she relied, first, upon the mandament van spolie (commonly
known as a spoliation application) and, secondly, upon an allegation that the
decision to disconnect her electrical supply constituted administrative action as
envisaged by the Promotion of Administrative Justice Act 3 of 2000 (PAJA). In
respect of the former she contended that Eskom’s officials had unlawfully
disconnected the supply of electricity without her consent ‘and without recourse
to due legal process’. In respect of the latter she sought to review the

respondent’s action on the basis that it had been procedurally unfair or decided
upon arbitrarily and capriciously in breach of the provisions of PAJA.
[7] Nothing really needs to be said in respect of the claim brought under
PAJA. It was abandoned in the court a quo and not only was there no attempt to
resurrect it in this court, but counsel for Ms Masinda specifically eschewed all
reliance upon PAJA in attempting to support the order obtained below. The
matter was therefore argued solely in respect of the spoliation, to which issue I
now turn.

[8] The mandament van spolie (spoliation) is a remedy of ancient origin,
based upon the fundamental principle that persons should not be permitted to
take the law into their own hands to seize property in the possession of others
without their consent. Spoliation provides a remedy in such a situation by
requiring the status quo preceding the dispossession to be restored by returning
the property ‘as a preliminary to any enquiry or investigation into the merits of
the dispute’3 as to which of the parties is entitled to possession. Thus a court
hearing a spoliation application does not require proof of a claimant’s existing
right to property, as opposed to their possession of it, in order to grant relief.
But what needs to be stressed is that the mandament provides for interim relief4
pending a final determination of the parties’ rights, and only to that extent is it
final. The contrary comment of the full court in Eskom v Nikelo5 is clearly
wrong. A spoliation order is thus no more than a precursor to an action over the
merits of the dispute.6

3 Nino Bonino v De Lange 1906 TS 120 at 122 confirmed by this court in Bon Quelle (Pty) Ltd v Otavi
Municipality 1989 (1) SA 508 (A) at 511H-I (Bon Quelle).
4 See eg D G Kleyn Die Mandament Van Spolie In Die Suid-Afrikaanse Reg LLD dissertation University of
Pretoria (1986) at 300-301 and the cases there mentioned.
5 Eskom v Nikelo [2018] ZAECMHC 48 (21 August 2018).
6 Bon Quelle at 513H-I.

[9] As I have mentioned, Ms Masinda sought restoration of her electricity
supply on two alternative bases. In respect of the first, the spoliation, an
investigation into the merits of her claim to receive such a supply would
ordinarily not be called for. In respect of the second, the review under PAJA,
she was required to establish that she had such a right to electricity which had
been unlawfully taken away from her. The two alternative claims are the very
antithesis of each other. Possibly as a result of this, the matter appears to have
morphed into an application in which Ms Masinda sought and obtained a
permanent order from the court a quo requiring Eskom to restore an electricity
supply to Ms Masinda.

[10] Presumably the court did not intend for such electrical supply to be
restored by way of an installation that was unlawful and a danger to the public
but rather one which complied with the necessary requirements of safety –
something, according to Eskom, the original installation had lacked. In this
respect its order was immediately problematic as it seemingly went beyond
requiring the re-establishment of what there was before, whereas spoliation only
requires the status quo ante to be restored.7 (This was probably the product of
the court a quo applying the principles of spoliation in circumstances where,
effectively, final relief was being sought.) In Tswelopele8 Cameron JA dealt
with the nature of the mandament and said:9
‘its object is the interim restoration of physical control and enjoyment of specified property –
not its reconstituted equivalent. To insist that the mandament be extended to mandatory
substitution of the property in dispute would be to create a different and wider remedy than
that received into South African law, one that would lose its possessory focus in favour of
different objectives (including a peace-keeping function).’

7 This may include doing more than simply restoring possession. It requires restoration of the property to its
former state. See Zinman v Miller 1956 (3) SA 8 (T).
8 Tswelopele Non-Profit Organisation & others v City of Tshwane Metropolitan Municipality & others [2007]
ZASCA 70; 2007 (6) SA 511 (SCA) affirmed in Ngomane & others v City of Johannesburg [2019] ZASCA
paras 18-20. See also Rikhotoso v Northcliff Ceramics 1997 (1) SA 526 (W) at 535B-C.
9 Paragraph 24. This may cast doubt on the grounds of the judgment, but not the result, in Fredericks & another
v Stellenbosch Divisional Council 1977 (3) SA 113 (C).

For that reason he had earlier in the judgment accepted that the mandament is a
preliminary and provisional order.10

[11] The obvious difficulty standing in the way of relief being granted was
that the supply that was sought to be restored was said to be unlawful and
constituted a danger to the public. This notwithstanding, the respondent’s
counsel argued that, as in spoliation proceedings the legality or otherwise of an
applicant’s possession is not an issue to be decided, the supply had to be
reconnected before any dispute as to its legality could be determined.

[12] Although it is correct that spoliation requires restoration of possession as
a precursor to determining the existence of the parties’ rights to the property
dispossessed, there may well be circumstances in which a court will decline to
issue a spoliation order. Thus in Ngqukumba,11 a case involving the spoliation
of a motor vehicle, the engine and chassis numbers of which had been altered,
the Constitutional Court stated:12
‘. . . in this case we are not concerned with objects the possession of which by ordinary
individuals would be unlawful under all circumstances. Had we been concerned with objects
of that nature, then the mandament van spolie might well not be available; but that issue is
not before us and need not be decided. The fact that we are here concerned with an article
that may be possessed quite lawfully makes all the difference . . . At the risk of repetition, the
simple point of distinction is that an individual can possess a tampered vehicle if there is
lawful cause for its possession.’

[13] This dictum raises the possibility of a court refusing to order the return of
property to a person who may not lawfully possess it, although to do so would
require reconsideration of a line of authority in this court that has not hitherto

10 Paragraph 23.
11 Ngqukumba v Minister of Safety and Security & others [2014] ZACC 14; 2014 (2) SACR 325 (CC).
12 Paragraph 15.

been questioned.13 In any event, Eskom was undoubtedly under a common law
duty to take steps to guard against its electrical supply constituting a hazard to
the public (I leave out of the reckoning certain regulations, the applicability of
which are in dispute)14 and the fact that the electrical installation that was
removed did not meet required specifications and constituted a public danger,
might well be sufficient for a court to decline to issue a spoliation order. After
all, directing it to restore the electricity connections that were removed would
compel it to commit an illegality.15 In the light of my view on this matter,
however, no final decision on this aspect of the case need be taken as, for the
reasons that follow, the appeal must succeed.

[14] It is necessary to undertake a more detailed examination of the principles
applicable to the mandament. Although it originally protected only the physical
possession of movable or immovable property, this court pointed out in Telkom
v Xsinet16 that in the course of scientific development it was extended to provide
a remedy to protect so-called ‘quasi-possession’ of certain incorporeal rights,
such as those of servitude.17 But not all incorporeal rights may be the subject of
spoliation. As was explained in Firstrand v Scholtz:18
‘The 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 such 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 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

13 Yeko v Qana 1973 (4) SA 735 (A) at 739D-G; Bon Quelle fn 3 at 512A-B; Ivanov v North West Gambling
Board & others [2012] ZASCA 92; 2012 (6) SA 67 9SCA) paras 23-25. But see Parker v Mobil Oil of Southern
Africa (Pty) Ltd 1979 (4) SA 250 (C).
14 It is presumed to have been negligent if anyone suffers damage or injury caused by means of electricity
generated, transmitted or distributed by it. See s 25 of the Electricity Regulation Act 4 of 2006 and Grootboom v
Graaff-Reinet Municipality 2001 (3) SA 373 (E).
15 Cf Zulu v Minister of Works, KwaZulu Natal & others 1992 (1) SA 181 (DC) at 190I-J.
16 Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA) para 9.
17 See further Bon Quelle fn 3 at 514D-516E.
18 FirstRand Limited t/a Rand Merchant Bank & another v Scholtz NO & others [2006] ZASCA 99; 2008 (2)
SA 503 (SCA) para 13.

characterised to establish whether its quasi-possessio is deserving of protection by
the mandament. Kleyn seeks to limit the rights concerned to “gebruiksregte” such as rights of
way, a right of access through a gate or the right to affix a nameplate to a wall regardless of
whether the alleged right is real or personal. That explains why possession of “mere”
personal rights (or their exercise) is not protected by the mandament. The right held in quasi-
possessio must be a [“right of use”]19 or an incident of the possession or control of the
property.’(Emphasis added.)

[15] Depending upon the circumstances, the supply of electricity or water may
be recognised as being an incorporeal right, the possession of which is capable
of protection under the mandament. That this is so is apparent from the decision
of this court in Impala Water v Lourens20 in which the respondents sought and
obtained a spoliation order directing the appellant, a supplier of water, to restore
the flow of water to reservoirs on their farms. There had been a dispute
concerning the legality of certain water charges levied by the appellant and,
although proceedings to recover these charges were pending, the appellant
exercised its powers under the National Water Act 36 of 1998 to restrict the
flow of water to the respondents by closing certain sluices. The respondents’
rights to receive water were not mere personal rights but were linked to and
registered in respect of certain portions of each of the respondents’ farms that
were dependent on the supply of the water. This court, in dismissing an appeal
against an order that the appellant restore the flow, held that such rights were an
incident of the possession of each farm, and that the mandament was therefore
available.

[16] Importantly, it was clear from the facts in that case that the right to the
supply flowed from the exercise of possession of the immovable property. Put
somewhat differently, whoever was in lawful possession of the relevant portions

19 The judgment used the Afrikaans word ‘gebruiksreg’.
20 Impala Water Users Association v Lourens NO & others 2008 (2) SA 495 (SCA); [2004] 2 All SA 476
(SCA).

of land was entitled to receive water from the appellant. This has not always
been recognised in previous decisions in which the courts have at times seemed
to regard the mere supply of water or electricity, without more, as constituting
an incident of possession – see eg Eskom v Nikelo.21 In Naidoo v Moodley22 and
Froman v Herbmore Timber23 it appears that the electricity was cut off with a
view to forcing the applicants to vacate immovable property, so that, as with
Nienaber v Stuckey 1946 AD 1049, where the complaint was of interference
with access to a property, it was the possession of that immovable property that
was being protected. Nisenbaum v Express,24 which is sometimes referred to as
an instance of the spoliation of a water supply, was rather an order for specific
performance of a lease.

[17] The decision in Painter v Strauss25 was cited as authority for that
proposition in these latter cases but, on closer scrutiny, it is not. It involved a
farmer who, after having rented out land, revoked the authority he had given to
his tenant ‘to arrange with the Department of Irrigation for the supply of water
to the land’. The precise nature of the right revoked does not appear from the
judgment, although at first blush it appears to have been contractual – which, if
it was, would not have been protected by the mandament. (Counsel for the
landowner, however, appears to have conceded that the right was capable of
spoliation.) In any event, whatever the nature of the right revoked may have
been, the court appears to have regarded it, rightly or wrongly, as similar to that
of a servitude. The latter is of course capable of being registered, and would
clearly be an incident of the possession enjoyed by the holder of a dominant
tenement.26 If that was so, it is a far cry from a mere personal right extended by

21 Footnote 5.
22 Naidoo v Moodley 1982 (4) SA 82 (T) at 84A-E.
23 Froman v Herbmore Timber and Hardware (Pty) Ltd 1984 (3) SA 609 (W) at 610G-611D.
24 Nisenbaum and Nisenbaum v Express Buildings (Pty) Ltd 1953 (1) SA 246 (W).
25 Painter v Strauss 1951 (3) SA 307 (O) at 318F-H.
26 See the judgment in Bon Quelle, fn 3 above.

contract which in no way attaches to property. The decision is thus not
authority, as appears to have been accepted by the subsequent decisions which
referred to it, for the proposition that the mere supply of water or electricity to a
property, in itself and without more, constitutes an incident of the possession of
that property, protectable by the mandament.
[18] Furthermore, examination of recent decisions of this court shows the
fallacy of such a proposition. Spoliation was granted in Bon Quelle not because
of the mere existence of the supply of water, but because such supply had been
received in the exercise of the rights of a servitude holder. And in Impala Water
v Lourens,27 which I have already mentioned, the mandament was available as
the right to receive water was not a mere personal right.

[19] However, in the further decision already mentioned, Firstrand v Scholtz,
it was held that the mandament was not available to enforce the re-
establishment of a water supply. In that matter the first appellant had supplied
water through a pipeline to several farmers within an irrigation area. The right
to receive water through the pipeline was governed by agreements concluded
with the farmers and was provided pursuant to payment of a fee for a period
ending 31 December 2004. Because the parties were unable to agree on a fee
payable thereafter, the appellants ceased to deliver water from 1 January 2005.
The respondents, who owned properties that had been serviced by the pipeline,
brought spoliation proceedings for restoration of the supply. They succeeded in
the court of first instance but failed in an appeal to this court, which held that
they had not been deprived of quasi-possession of any statutory water rights
which they were entitled to exercise, but mere contractual rights relating to the
use of the pipeline, which had expired.

27 Footnote 12.

[20] In these cases the mere existence of the water supply which was
terminated, was held in itself to be insufficient to constitute an incident of the
possession of the properties, and that more than a purely personal right was
required in order to show that to be the case.
[21] This was echoed in Telkom v Xsinet,28 a case which is probably the most
comparable to the present in that it involved the supply by Telkom of electronic
impulses to the Xsinet’s premises, thereby providing the telephone and
bandwidth system used by it to conduct its business as an internet service
provider. Alleging that Xsinet was indebted to it in respect of another service,
Telkom disconnected the supply. This court did not accept that the use of the
bandwidth and telephone services constituted an incident of the possession of
the property, even though those services were used on Xsinet’s premises. It
observed that it would be both artificial and illogical to conclude that the use of
the telephone, lines, modems, or electrical impulses had given Xsinet
possession of the connection of its property to Telkom’s system.29 It also
rejected the contention that Telkom’s services could be restored by the
mandament as those services constituted ‘a mere personal right and the order
sought is essentially to compel specific performance of the contractual right in
order to resolve a contractual dispute’.30

[22] As was pointed out in Zulu, the occupier of immovable property usually
has the benefit of a host of services rendered at the property.31 However the
cases that I have dealt with above graphically illustrate how, in the context of a
disconnection of the supply of such a service, spoliation should be refused
where the right to receive it is purely personal in nature. The mere existence of
such a supply is, in itself, insufficient to establish a right constituting an incident

28 Telkom fn 8.
29 Paragraphs 12 and 13.
30 Paragraph 14.
31 Zulu at 186E-190G.

of possession of the property to which it is delivered. In order to justify a
spoliation order the right must be of such a nature that it vests in the person in
possession of the property as an incident of their possession. Rights bestowed
by servitude, registration or statute are obvious examples of this. On the other
hand, rights that flow from a contractual nexus between the parties are
insufficient as they are purely personal and a spoliation order, in effect, would
amount to an order of specific performance in proceedings in which a
respondent is precluded from disproving the merits of the applicant’s claim for
possession. Consequently, insofar as previous cases may be construed as
holding that such a supply is in itself an incident of the possession of property to
which it is delivered, they must be regarded as having been wrongly decided.

[23] In the light of this conclusion, it is necessary to revert to the facts of the
present case. It is common cause that what had been installed on Ms Masinda’s
property was a prepaid system using a meter box that someone had wired into
Eskom’s grid. This system was used in conjunction with a prepaid card in order
to effect the supply. Electricity is purchased using the individual number of the
meter which is reflected on the card. The receipt issued in respect of the
transaction bears a coded number which, once typed into the meter, registers a
credit in respect of the amount of electricity purchased. The supply of electricity
to Ms Masinda’s property was therefore dependent upon it being paid for in
advance.

[24] In seeking restoration of her electricity supply, Ms Masinda’s claim could
hardly have been more terse. She said no more than that Eskom’s officials had
unlawfully disconnected the supply of electricity to her house and the prepaid
meter, and asked that it be reconnected to the national grid. There was no
attempt to show that such supply was an incident of her possession of the
property. She relied solely upon the existence of the electrical supply to justify a

spoliation order. In the light of what is set out above, this was both misplaced
and insufficient to establish her right to such an order.

[25] In addition, there is the common cause fact that Ms Masinda purchased
her electricity on credit through the prepaid system which I have described. In
these circumstances, her right to receive what she had bought flowed not from
the possession of her property, but was a personal right flowing from the sale.
Similar to the case in Xsinet, her claim was essentially no more than one for
specific performance (and to the limited extent of a supply worth no more than
the unused credit still due after her last purchase). This personal, purely
contractual right, cannot be construed as an incident of possession of the
property. As the mandament does not protect such a contractual right, for this
reason too the claim ought to have been dismissed.

[26] This conclusion renders it unnecessary to decide the further ancillary
issue, namely, whether Eskom was entitled to invoke the provisions of reg 7 of
the Electrical Installation Regulations, 200932 in order to remove the installation
on Ms Masinda’s property. It was argued on her behalf that the regulations
operated solely in an industrial and not a domestic environment. The full court
in Eskom v Nikelo expressed its reservations as to their applicability in
circumstances such as the present.33 But as it is an issue unnecessary to decide,
it is undesirable to comment further on the matter.

[27] For these reasons the following order will issue:
The appeal is upheld, with costs.
The order of the court a quo is set aside, and substituted with the
following:

32 Occupational Health and Safety Act, 1993 Electrical Installation Regulations, GN R242, GG 1975, 6 March
2009.
33 Paragraph 28.

‘The application is dismissed, with costs.’

______________
L E Leach
Judge of Appeal

Appearances

For the Appellant:

T J M Paterson SC
Instructed by:

Makaula Zilwa Inc, Sandton

Matsepes Inc, Bloemfontein

For the Respondent:

J L Hobbs
Instructed by:

L Jikela Attorneys, Mthatha

Webbers, Bloemfontein