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 Court emphasised that not all incorporeal rights may be the subject of spoliation. 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 ZASCA 35 to quasi-possession of certain incorporeal rights such as rights of use or those of servitude. 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. In this case Masinda obtained a final order from the High Court directing Eskom to reconnect the electricity supply to her property.Įskom 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. 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 Eskom Holdings SOC Limited v Masinda ZASCA 98 the Supreme Court of Appeal (SCA) dealt with this issue.
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