In Eskom Holdings SOC Limited v Masinda [2019] ZASCA 98 the Supreme Court of Appeal (SCA) dealt with this issue. The Court was called upon to decide whether Masinda was entitled to a spoliation order after Eskom had disconnected the supply of electricity to Masinda’s immovable property. In this case Masinda obtained a final order from the High Court directing Eskom to reconnect the electricity supply to her property.

Eskom appealed the final order to the SCA contending that the connection made from its grid to Masinda’s property was illegal and a danger to the public and, for this reason, it had acted lawfully in disconnecting the supply. In response, Masinda 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.

The SCA undertook an examination of the principles applicable to the mandament and held that although the remedy originally protected only physical or immovable property, this protection was extended in Telkom v Xsinet [2003] ZASCA 35 to quasi-possession of certain incorporeal rights such as rights of use or those of servitude. The Court emphasised that not all incorporeal rights may be the subject of spoliation.

The Court also cited Impala Water Users Association v Lourens NO & Others 2008 (2) SA 495 (SCA) which stands as authority that the mere existence of a terminated water supply is insufficient in itself to constitute an incident of possession of the property (the water supply) and that more than a personal right/contractual right is required for the afforded protection under the mandament.

The SCA held that in order to justify a spoliation order in the case of an incorporeal right, the right must be of such a nature that it vests in the person in possession of the property (water, electricity, right of way, as the case may be) as an incident of their possession such as rights bestowed by servitudes, registration or statute.

The SCA emphasised that rights that flow from a contractual nexus between parties are insufficient as they are purely personal, and, in such a case, this would reduce a spoliation order to an order of specific performance in the proceedings.

In applying these principles to Masinda, the Court considered the nature of the Masinda’s right to the electricity, which was purchased through the prepaid system, finding that her right to receive the prepaid electricity was a personal right flowing from the sale and that it did not flow from the possession of the property. The Court stated that Masinda relied solely on the existence of the electrical supply to justify the spoliation order, which was insufficient to establish her right to a spoliation order. Eskom’s appeal was upheld with costs and the order of the High Court was set aside.

Litigants seeking to restore possession of a personal right which flows from a contract should compel specific performance as a remedy in order to resolve the contractual dispute.