Solar Power vs. Property Rights: Lessons on “Spoliation” from the High Court

In property law, the old saying “possession is nine-tenths of the law” is more than just a cliché—it is a principle protected by a powerful legal remedy known as the mandament van spolie. A recent judgment from the Northern Cape High Court, Mooi Plaats Solar Power (RF) (Pty) Ltd v Bovlei Boerdery Trust, provides a valuable case study on how this remedy works and why it is often misunderstood.

Below is a detailed summary of the case, followed by an analysis of the legal principles applied by the court.

Case Summary

Case Name: Mooi Plaats Solar Power (RF) (Pty) Ltd v Bovlei Boerdery Trust and Another (2025-164852) [2026] ZANCHC (30 January 2026)

I. Summary of the Facts

Mooi Plaats Solar Power (RF) (Pty) Ltd is developing a 240 MW solar facility on a farm owned by the Bovlei Boerdery Trust. The solar company brought an urgent application to restore access through a specific “primary access gate” (a private gate leading to PV Area 1) using the mandament van spolie.

The parties had a notarial lease granting the applicant access to the property, along with a registered servitude for access along existing gravel roads. The applicant claimed it had enjoyed free, unfettered access through this specific gate for months until it was padlocked on 2 August 2025. Although the gate was later unlocked, the applicant argued that “unilateral restrictions” imposed from 10 September 2025 interfered with their 24-hour access and project logistics.

The respondents (the Trust) countered that the applicant never had a right to unrestricted, 24-hour use of this private gate. They argued the gate was ordinarily locked overnight (18h00 to 06h00) and that the applicant’s use began only in July 2025 based on temporary permission for a concrete batching plant. Furthermore, the respondents pointed out that the applicant still had access to the project via a different, main gate.

II. The Legal Question

The court had to decide whether the applicant met the requirements for a mandament van spolie regarding the private gate. Specifically: Did the solar company have peaceful and undisturbed possession (or quasi-possession) of the right of access, and were they unlawfully deprived of it?

III. Ratio Decidendi (The Court’s Reasoning)

The Court emphasized that spoliation is a “speedy remedy” designed to prevent self-help, but it requires the applicant to prove their case on a final relief standard. To succeed, an applicant must prove:

1. Peaceful and undisturbed possession (or quasi-possession of a right, like a servitude).

2. Unlawful deprivation without consent or legal process.

The Judge clarified that spoliation is not the correct tool to enforce contractual rights or specific performance (citing FirstRand v Scholtz NO and Telkom v Xsinet). It is strictly about restoring factual possession.

Applying these principles, the Court found the applicant failed the first requirement. The applicant’s own version admitted the gate was “closed and secured in the evenings,” which contradicted their claim of having “free and unfettered” 24-hour access.

Critically, the Court noted that minutes from a meeting on 26 August 2025 showed the parties met to “negotiate access” through the gate. The need to negotiate access suggested the solar company did not hold the right “peacefully and undisturbed”—when one must ask for permission or negotiate terms, the use is arguably conditional rather than an established quasi-possession.

IV. Finding

The application was dismissed with costs.

Analysis: Legal Principles and Takeaways

This judgment illustrates the specific limitations of spoliation orders within South African property law.

1. Contract vs. Possession

A key distinction highlighted in this case is the difference between contractual rights and factual possession. The applicant argued they had a lease and a servitude that allowed them access. However, the court reiterated that the mandament van spolie generally does not inquire into contractual entitlements; it looks at the factual state of affairs before the disturbance.

From a legal perspective, when a dispute centers on enforcing the terms of an agreement (e.g., “The lease grants this right”), the appropriate remedy is typically an interdict or specific performance, rather than spoliation.

2. The Nature of “Quasi-Possession”

The concept of “quasi-possession” (possession of a right, such as using a road) usually requires that the use be open and distinct. In this matter, the court found that because the applicant relied on permission for a specific temporary purpose (the concrete batch plant), their access was “precarious”. In legal theory, holding a right by the grace of the owner (“precarium”) often negates the claim of independent, undisturbed possession required for spoliation.

3. “Undisturbed” Implies Consistency

The applicant sought to restore “24-hour vehicular access”. However, the facts indicated the gate was historically locked every night. The judgment demonstrates that a court cannot order the restoration of a right that was not factually exercised prior to the dispute. The remedy is designed to restore the status quo ante (the previous state of affairs), not to create a new state of affairs that aligns with a party’s ideal interpretation of a contract. The court treated the applicant’s asserted “24-hour access” as not part of the factual position previously enjoyed, which is why spoliation could not be used to create a more favourable access regime than what existed before the disturbance.

Conclusion

Mooi Plaats v Bovlei Boerdery Trust reinforces the strict requirements of the mandament van spolie. The judgment serves as an example that negotiation or conditional permission can undermine a claim of peaceful and undisturbed possession.