- The High Court found that Herzenberg had not shown the independent physical control or intention to possess the property that the law requires for a spoliation claim.
- His claim that his stay was like that of a tenant was rejected. His separate request for a final interdict did not succeed either.
- The court dismissed both his appeal and the cross-appeal by the respondents. Each side was ordered to pay their own legal costs.
Jordan Mikael Herzenberg has failed to regain access to the family home in Yzerfontein where he lived with his former girlfriend, Katherine Loubser, and her mother, Elizabeth Loubser.
Herzenberg moved into the property in March 2025. The respondents said in a previous eviction application, which they later withdrew, that they let him stay because his parents were divorcing and he needed a quiet and stable place to prepare for exams.
Their relationship ended in November 2025. Shortly after that, the family removed the keys that were kept on a hook behind the kitchen door. Even so, Herzenberg kept coming to the property until he was eventually prevented from entering or staying there.
He went to the Magistrate’s Court in Malmesbury and asked for an order to get his possession of the property back. The court granted a rule nisi, ordering that his possession be restored. But when the sheriff tried to carry out the order, it was resisted. This led to a second order allowing the sheriff to change the locks. The respondents then handed over one key.
In the end, the magistrate dismissed the application. Herzenberg then took the matter to the High Court on appeal. The High Court in the Western Cape dismissed the appeal. Acting Judge V Barthus, with Judge J Lekhuleni agreeing, delivered the judgment on 30 October 2026.
Staying in the home was not enough
The main question was whether Herzenberg had peaceful and undisturbed possession of the property before access was denied. The mandament van spolie is a legal remedy that aims to restore possession to someone who has been unlawfully deprived of it. To succeed, the applicant must show they were in peaceful and undisturbed possession before being deprived of it.
The court found that Herzenberg simply said in his court papers that he had peaceful and undisturbed possession. He did not explain how he controlled the property, whether he controlled access, kept others out, or had his own keys.
Judge Barthus said the facts needed to be shown through evidence of real control, not just by repeating the legal requirements. The court found that Herzenberg’s stay was still part of the family’s domestic arrangements, not independent possession of the property.
The significance of the keys
The court looked at whether Herzenberg really controlled the property and whether he meant to have it for his own benefit. He did not show that he independently controlled the home, decided who could come in, looked after or secured the property, or had control over any particular room or area.
The judge said that having your own keys or exclusive use of the property is not always needed to prove possession. In some cases, shared access can also count as possession. But in this case, the keys stayed in the respondents’ house and were used according to their rules.
Together with the lack of other evidence of independent control, this was not enough to show the kind of possession the law requires. The court also looked at whether Herzenberg intended to have the property for his own benefit. Through his actions, he did not show that he saw the property, or any part of it, as his own space.
The judgment said that living somewhere because of a relationship or with permission does not automatically mean you have no protection under the spoliation remedy. What matters is how you stayed there and whether you showed the needed control and intention.
Court rejects comparison with a tenant
Herzenberg said that his stay at the property was like being a tenant, pointing to how long he lived there and the fact that no one had challenged his occupation before. The court did not agree with this comparison.
Judge Barthus explained that being a tenant usually means having a contract, clear possession, independent control and the ability to keep others out. These features were not present in Herzenberg’s case. He was there because of a personal relationship and the family’s goodwill, not because of a rental agreement or any contract.
The court also looked at the case of Nieuwoudt v Steyn and Another, where a person got back possession after living on a property for years, making improvements, claiming a lien, and being forced out despite an eviction case still going on.
The judge found that Herzenberg had not shown anything similar, like making improvements, contributing to the property, having his own access, or acting as if he really possessed the place.
The judgment also dealt with Herzenberg’s claim that two men assaulted him inside the house. But this happened after the respondents had taken the keys and after the alleged spoliation, so it did not help decide if he had peaceful and undisturbed possession before losing access.
No legal right to remain
Herzenberg also asked the court for a final interdict to stop the respondents from interfering with his stay at the property. Unlike a spoliation application, a final interdict needs the applicant to show a clear legal right, some harm actually done or reasonably feared, and that there is no other good remedy.
The court found that Herzenberg did not show he had a contract, owned any part of the property, or had any other legal right to stay there or decide who could come in. The judge found that taking away the keys stopped Herzenberg from practically getting into the house, but it did not break any legal right he had.
The court stressed the difference between the two remedies. The spoliation application was about whether Herzenberg actually had possession, while the final interdict needed him to prove he had a legal right to stay. He failed to establish either requirement.
Respondents’ cross-appeal also dismissed
The respondents also tried to appeal parts of the magistrate’s reasoning. But the High Court found they already got the order they wanted, which was the dismissal of Herzenberg’s application. Their challenge was really about the magistrate’s reasons, not the actual order.
The judge explained that you can only appeal a court’s order, not just its reasons. So the cross-appeal was not allowed. The High Court dismissed both the appeal and the cross-appeal. Herzenberg was ordered to pay the costs of his appeal, including his counsel’s fees. The respondents had to pay the costs of their cross-appeal.
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