This was illustrated in a dispute that arose in the North West Province where portions of some maize and sunflower farms were sold subject to suspensive conditions (Bisschoff & Others v Welbeplan Boerdery (Pty) Ltd (Case No. 815/2016) [2021] ZASCA 81). Pending finalisation of the sale it was agreed that the purchaser could access the farms and if the sale fell apart, the agreement would automatically convert to a 12-month lease. The suspensive conditions weren’t fulfilled, the sale collapsed, and the sale agreements duly converted to leases. The purchaser then breached the leases and received letters from the sellers’ attorney confirming that the agreements had been cancelled and telling it not to trespass on the land. The purchaser complained to the High Court that the lawyer’s letters were an act of spoliation which prevented it from accessing the land without any court process. The High Court agreed saying that the words used in the lawyer’s letters were equal;

“to putting a lock at the gate physically”.

The Supreme Court of Appeal analysed the letters and pointed out that the application in the High Court was for a mandament van spolie, for the return of possession of property where the applicant was unlawfully deprived of its prior peaceful and undisturbed possession. The court said there must be an actual loss of possession, that the mere threat to approach a court in the circumstances of this case could not constitute unlawful deprivation of the purchaser’s control of the land, nor self-help and the High Court should not have to granted the order that it did.

A sensible conclusion.