|The Appellant, Eskom Holdings SOC Limited (hereinafter “Eskom”) sought an order from the Supreme Court of Appeal, determining whether the Respondent, Ms Masinda (hereinafter “Masinda”) was entitled to a spoliation order due to the disconnection of the electricity supply to Masinda’s immovable property in the Eastern Cape.
Court a quo
As a result of the disconnection of the electricity supply, Masinda launched an urgent application against Eskom for the restoration of electricity supply to her property, by way of the mandament van spolie (also referred to as spoliation). In the alternative, Masinda alleged that Eskom’s decision to disconnect her electrical supply constituted an administrative action as outlined in the Promotion of Administrative Justice Act 3 of 2000 (hereinafter “PAJA”).
The court a quo held that Masinda was entitled to the spoliation order sought and ordered that her electrical supply be reconnected. Eskom subsequently brought an application for leave to appeal to the Supreme Court of Appeal (hereinafter “SCA”) and was granted leave to appeal.
Eskom’s argument was that after conducting various inspections in Tsolo, in the Eastern Cape (where Masinda’s property was located), Eskom discovered that Masinda’s property, along with others, had illegally been connected to its power grid. Furthermore, that these illegal connections, by their very nature, were fraught with peril and had become a substantial problem in the area. As a result, the supply to Masinda’s property was disconnected by Eskom.
Masinda’s argument was that her electricity meter and connection was installed by a party whom she had thought was an agent of Eskom. Eskom disputed this argument and averred that it had originally quoted Masinda for a 60-amp prepaid meter installation, which quote was rejected by Masinda.
In assessing the arguments put forward in respect of spoliation, the SCA held that an application for spoliation does not require proof of an applicant’s existing right to property, but rather their possession of the property in order to grant the relief sought. Furthermore, the SCA noted that the remedy of spoliation is preliminary to any investigation into the merits of the dispute, in that it provides for interim relief, pending a final determination of the parties’ respective rights.
In addition, the SCA pointed out that the mandament van spolie provides a remedy to protect what is referred to as ‘quasi-possession’ of certain incorporeal rights. In determining which of these incorporeal rights may be afforded protection by spoliation, it is essential to assess the nature of the incorporeal right. Should the incorporeal rights be contractual or personal in nature, spoliation will not offer protection, as these rights must flow from the exercise of possession of immoveable property.
|The SCA held that in order for an applicant to be granted a spoliation order, the supply of electricity must be of such a nature that it vests in the person who is in possession of the property, as an incident of their possession (i.e. rights derived from a servitude). As such, the SCA held that the mere existence of a supply of electricity is, in itself, insufficient to justify the protection of this incorporeal right by a spoliation order.
The SCA further found that a spoliation order which enforces rights, flowing from a contractual nexus, would essentially amount to an order for specific performance, where the respondent would be precluded from disproving the merits of the applicant’s claim for possession.
Furthermore, the SCA found that in granting the spoliation, the court a quo could not have intended for Masinda’s electrical supply to be reconnected by way of an unlawful and dangerous installation. Spoliation requires the status quo preceding the dispossession of such property to be restored and not its reconstituted equivalent. In lieu of this, the order of the court a quo to restore the electrical supply was declared problematic in that it went beyond the restoration of what was previously present at the property.
The SCA held that Masinda’s right to electrical supply flowed not from the possession of her property, but rather from the contractual right derived from the sale of the prepaid electricity. As a result, Eskom’s appeal was upheld, and the order granted by the court a quo was set aside.
Where a spoliation application is used to restore the possession of an incorporeal right, such as the right to electrical or water supply, the applicant must show that such supply is an incident of possession of the property to which it is delivered and must not only flow from a contractual nexus.
Written by Tayla Bruce and Simone Jansen van Rensburg