Self help is a no- Court tells Phadi-Mmutle and Co
Innocent Selatlhwa | Monday September 1, 2025 06:00
Spoliation is an old common law remedy commonly used by a person who has been dispossessed of goods without following due legal procedure.
The JV had, in protest, locked up chambers for the project termed Goodhope District water supply Scheme 2.2. awarded for P549.6 million.
WUC, through attorney Kago Mokotedi, had dragged the JV (first respondent) and the project manager, Kelebogile Monnaatshipi (second respondent), before the court after the contractor shut down the water supply to some villages in the Borolong area by shutting and putting padlocks on chambers supplying water to villages in the area.
The commencement date for the project was the 24th of May 2022, while the completion date was the 23rd of November 2023.
Amongst their arguments, WUC contended that from the reading of the letter from the JV, they did not dispute locking the chambers. That in conceding to the locking exercise against the peacefully possessed, such amounted to unlawful self-help to exert pressure on the applicant to address grievances raised in the letter.
In addressing the court on this aspect, Mokotedi submitted that there was no doubt that the taking over of certificates gave the applicant peaceful possession of the chambers. He contended that the act of locking the chambers with padlocks by the JV was a shrewd act of dispossession and spoliation, as it inhibited the applicant from discharging its statutory water supply mandate to the three villages.
Mokotedi submitted that the respondents' unlawful self-help had far-reaching, catastrophic, and calamitous consequences on the other 15 neighbouring and pipeline benefitting villages.
He further contended that the conduct of the respondent was not in line with the rule of law, which prohibited persons from taking the law into their own hands to enforce their rights. He further submitted that if the JV believed it had a right to lock the chambers and deny the applicant access and possession, it must do so by way of a court process.
Mokotedi submitted that the applicant's statutory mandate and function were being undermined most egregiously and brazenly by the JV. The unlawful termination of water supply to the 15 villages would likely lead to a breakout of communicable diseases such as malaria, diarrhea, and even typhoid.
On urgency, he said both public interest considerations and the interest of justice dictated that the matter be heard on urgency. He stated that the circumstances were such that the applicant had no immediate alternative plans or budget in place to supply and distribute water to the affected villages. That if the matter was to be heard at a hearing in due course, the applicant and indeed the public would not be afforded any substantial redress. It contended that if it were to wait for a hearing in due course, lives would have been lost and the public health already jeopardized.
He also submitted that the JV's commercial interests could not be allowed to jeopardize the residents of the 15 villages, who do not know the nature and texture of the JV's grievances.
Mokotedi also argued that the applicant acted swiftly in addressing the impasse ever since becoming aware of the spoliation and that, in any event, public interest cases were inherently urgent to be countenanced by the Court.
For his part, attorney Mooketsi Segaise argued that there was no way the JV could have handed over the chambers without the compulsory disinfection. He denied that his clients exercised any self-help but rather exercised contractual rights and obligations to protect public health under clause 4.18 (Health and Safety), which provides for the contractor to ensure works are carried out in compliance with applicable health and safety requirements.
Whilst the JV denied the characterisation of self-help, Segaise submitted that allowing the applicant access to the disinfected tanks would endanger thousands of residents and expose the respondents to liability. He further submitted that the locks to the chambers should remain in place because no engineer had been appointed, disinfection and water quality certification were incomplete, and payments remained outstanding. He therefore submitted that the applicant was not entitled to spoliation.
Segaise said the allegations that respondents acted in self-help were unfounded. He argued that the locks were applied after acts of vandalism were made and were to safeguard the infrastructure.
Delivering the judgment, Justice Maphakwane said the court had noted and considered the contradictory reasons advanced by the JV, which seek to deny the peaceful possession of the chambers and water tanks and equally discredit the taking over certificates which were signed by the JV's project manager, Nginani Mbayi.
“The Court holds that the taking over of certificates WUC4 unequivocally gave the applicant peaceful and undisturbed possession as confirmed by the JV's representative. The certificate also indicated that there were no outstanding works. As such, the respondents' conduct amounted to acts of spoliation and was therefore unlawful,” he stated.
Maphakwane said, as earlier stated, the JV insisted that they had contractual grievances which they wanted to coerce the applicant to resolve by despoiling the applicant's possession of the chambers and valves. “This cannot be because even the FIDIC conditions for construction and the parties' tender contract recognise a dispute resolution mechanism of either arbitral or litigation. Spoliation conduct committed by the respondents cannot, therefore, be countenanced by this Court,” he said.
He said in spoliation proceedings, such as this, the court will not entertain arguments relating to the respondent's contractual rights or entitlement or contractual grievances. Maphakwane said it will not be in the interests of justice not to accede to the applicant's spoliation application for restoration of water supply to the affected villages, as the requirements for spoliation have been met.
“Whatever rights and grievances the respondents may legally or contractually have would have to be taken to the appropriate litigation forum. This Court has an obligation to ensure that the rule of law is respected and reigns supreme regardless of the intensity of the parties' contractual claims. Therefore, the applicant has discharged its onus of proving spoliation as alleged and respondents have failed to negate it,” he said.
In the result, Maphakwane said the application succeeds and the rule nisi was granted on 18th July 2025. Costs were awarded to WUC on an ordinary scale against both respondents.