Protecting Quasi-Possession of Electricity Supply with the Mandament van Spolie – Has the Supreme Court of Appeal Switched Off this Possibility? [A Discussion of Eskom Holdings Soc Ltd v Masinda 2019 5 SA 386 (SCA)]

• Date: 29 September 2021
• Author: Marais, E.J.
• DOI: https://doi.org/10.47348/SLR/2021/i2a2
• Pages: 215-233
• Citation: (2021) 32 Stell LR 215
• Published date: 29 September 2021

https://doi.org/10.47348/SLR/2021/i2a2

215

PROTECTING QUASI-POSSESSION OF

ELECTRICITY SUPPLY WITH THE MANDAMENT

VAN SPOLIE – HAS THE SUPREME COURT OF

APPEAL SWITCHED OFF THIS POSSIBILITY?

[A DISCUSSION OF ESKOM HOLDINGS SOC

LTD V MASINDA 2019 5 SA 386 (SCA)]

EJ Marais

BA LLB LLD

Senior Lecturer, University of Johannesburg*

Abstract

In Eskom Holdings SOC Ltd v Masinda 2019 5 SA 386 (SCA) (“Masinda”),

the Supreme Court of Appe al had to decide whether the mandament va n spolie

is available for restoring quasi-possession of electr icity supply. The respond ent

used the mentioned supply, which was sourced in contract, at her home. The

court ruled that the spoliation remedy does not protect the quasi-possession

of rights sourced in contract. For its quasi-possession to enjoy possessory

protection, the right must be in the nature of a servitude, be registered or

ow from legislation. Thi s emphasis on the source of the right is problematic

for two reasons. First, it contradicts certain common-law authorities which

reveal that the quasi-possession of electric ity supply sourced in contract doe s,

in fact, enjoy protection under the spoliation remedy. This applies as long as

the supply is a gebruiksreg (use right) and the spoliatus performs physical acts

associated with the right on immova ble property. Secondly, (over)emphasising

the source of the right potentially undermines various fundamental rights.

When the common law is o pen to several possible interpretations, a s seems to

be the case with quasi-possession, the supremacy of the Constitution and the

single-system-of-law principle require that courts choose the interpretation

that upholds (rather than impairs) constitutional rights. In the Masinda case,

the court unfortunat ely opted for an understanding of quasi-pos session which

seems to undermine the Constitution. For these reasons, the decision is an

unwelcome development .

Keywords:mandament van spolie; quasi-possession; single-system-of-law

principle; development of the comm on law; electricit y supply

∗This art icle was presented as a paper at the South ern Africa n Law Teachers’ Conferenc e 2020, hosted by

the Univer sity of Johan nesburg at the Skuk uza Rest C amp in the Kruger National Park , 20-24 Janua ry

2020 I tha nk the par ticipants of the propert y law panel for their feed back and the two anonymou s peer

reviewers, whose incisive comments really helpe d to improve the art icle Thank s also go to Professor s

Duard Kleyn , Gustav Muller, Warren Freedm an, and Marius de Waal for engag ing with me on the topic,

and to M s Joyce Phiri for providing excellent resear ch assistance Finally, I express my g ratitude to the

NRF for provid ing the finan cial support that m ade this resea rch possible Remaini ng errors are my ow n

(2021) 32 Stell LR 215

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https://doi.org/10.47348/SLR/2021/i2a2

1 Introduction

The mandament van spolie (or spoliation remedy) is available when a

spoliator has completely deprived a spoliatus of possession or where there

has been a subst antial interference with possession.1 It is a speedy and robust

remedy, as it re stores possession forthwith without cour ts investigating

the merits of a dispute.2 If the spoliatus satises the requirements, namely

peaceful and undis turbed possession and u nlawful spoliation of such

possession,3 and none of the defences again st this remedy i s applicable,4 the

spoliator must restore possession to the spoliatus before al l else: spoliatus

ante omnia restituendus est.5 The purpose of the mandament van spolie is

to discourage unlawful self-help by forcing legal s ubjects to resolve disputes

through ofcial legal channels instead of taking the law into their own hands.6

Initially, the spoliation remedy only protect ed possession of corporeal

property.7 Through legal development it has also come to protect possession

of incorporeal things, namely rights. The notion of “quasi-possession” is used

in this context, as rights cannot be possessed in the same way as tangible

things.8 Thi s article investigates whether the mandament van spolie may still

be u sed to prote ct quasi-possession of a pa rticular right, namely electr icity

supply, used at residential premises. This question recently came up for

decision (again) before the Supreme Court of Appeal in Eskom Holdings SOC

Ltd v Masinda9 (“Masinda”).

The court held that the quasi-possession of a right, in casu elect ricity

supply, only enjoys protection if s uch right is in the nat ure of a servit ude,

is a registered right, or if it is sourced in legislation.10 To t his category

must be added rights which ow from the Constitution of the Republic of

South A frica, 1996 (the “C onstitution”).11 In light of the Masinda decision,

electricity supply now forms part of the growing category of rights, the

quasi-possession of which does not enjoy possessory protection if the right is

sourced in contract.12 This narr owing of the prote ctive ambit of the spoliation

1 G Muller, R Brits, J M Pienaar & ZT Boggenpoel S ilberberg and Schoe man’s The Law of Property 6 e d

(2019) 326-327; ZT Boggenpoel Pr operty Remed ies (2017) 96-101; DG Kleyn Die Ma ndament van Spol ie

in die Suid-Af rikaanse Reg LLD t hesis University of Pre toria (1986) 297-307

2 Muller et al Law of Propert y 328, 330-332; Boggenpoel Propert y Remedies 97-101

3 For a discussion of these requirement s, see Muller et al Law of Proper ty 332-348; Boggenpoel Property

Remedies 101-128

4 Such as impossibil ity of restor ation of poss ession, for exa mple: see Boggenp oel Property Remedies

129-149

5 The spoliatus must be restored to his or h er prior position (b efore spoliation occu rred) before all els e

6 Ngqukumba v Minister of Safety and Security 2014 5 SA 112 (CC) para 10; Ntshwaqela v Chairman

Western Cape Reg ional Servi ces Council 198 8 3 SA 218 (C) 225G- I See also CG van de r Mer we “Th ing s”

in LAWS A 27 (2014) para 93; Muller et al Law of Prop erty 326-327

7 Telkom SA Ltd v X sinet (Pty) Ltd2003 5 SA 309 (SCA) para 9

8 Telkom SA Ltd v X sinet (Pty) Ltd 2003 5 SA 309 (SCA)para 9 See also Van der Mer we “Thi ngs” in

LAWSA 2 7 para 70; Boggenpoel Propert y Remedies 105-106

9 2019 5 SA 386 (SCA)

10See the discu ssion of the judgment i n part 2 below

11City of Cap e Town v Strümpher2012 4 SA 207 (SCA) paras 9-10

12See, for in stance, Telkom SA Ltd v Xsinet (Pty) Ltd 2003 5 SA 309 (SCA) (which concer ned quasi-

possession of telec ommunications se rvice) See also Firstra nd Ltd t/a Rand Merchan t Bank v Scholtz NO

2008 2 SA 503 (SCA); Impala Water Users Associati on v Lourens NO 2008 2 SA 495 (SCA); City of Cape

Town v Strümphe r 2012 4 SA 207 (SCA), all of which concerned quasi- possession of water sup ply

216 STEL L LR 2021 2

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