A Cape Town woman has lost an urgent High Court bid to immediately enforce an order requiring her late partner’s parents to return furniture and other household items they removed from the home she shared with him.
Western Cape High Court Judge Dumisani Lekhuleni handed down the judgment in an application brought by Tembela Ntloko against Faniswa Kewuti Nkati and Mpho Nkati.
The dispute followed the death of Tembela Ntloko’s partner in May, after which his parents removed a range of movable items from the couple’s Parklands North home, including a refrigerator, washing machine, microwave, kettle, toaster, television, beds and other furniture.
The magistrate granted Ntloko a final spoliation order. A spoliation order is a quick court command that forces someone to return property taken without a proper legal process.
In Ntloko’s case, the order was halted after the Nkati family appealed the magistrate’s ruling.
Dispute followed partner’s death
Ntloko and the deceased had lived together as partners at Parklands North in Cape Town. They had jointly purchased a sectional title unit in August 2025.
The man died in May 2026 and left a will appointing his mother, Faniswa Nkati, as the executrix of his estate.
Following his death, she said his family arrived at her premises without a court order and removed a refrigerator, washing machine, microwave, kettle, toaster, television, television stand, camp chair, iron, two beds and a headboard.
She approached the High Court seeking an order declaring that she had been married to him by customary union. That application was dismissed because she had cited the “Kewuti family” rather than a natural or juristic person as the respondent.
She also opened a criminal case of housebreaking against them.
Ntloko maintained that although she knew her partner’s will would allow his mother to take the furniture, she argued that his family could not take the law into their own hands without following due legal process. She also said she was unaware that any letters of executorship had been issued at the time.
Spoliation order granted
Ntloko approached the Cape Town Magistrate’s Court and filed a spoliation order, and it was granted on 16 July.
Ntloko then instructed the Sheriff to enforce the order. But on 20 July, the respondents filed a notice of appeal against the magistrate’s decision, preventing the Sheriff from executing the order.
Ntloko’s attorneys then wrote to the respondents, arguing that simply noting an appeal did not suspend the spoliation order. They gave them until the close of business on 22 July to restore possession of the movable property.
When the respondents failed to comply, Ntloko brought the urgent High Court application.
Arguments in the high court
Ntloko argued that the matter was urgent because she had been deprived of essential household goods.
Her counsel told the court that she had been left without a bed, refrigerator and other essential furniture and had been forced to leave her home and stay with her parents.
The man’s family disputed the urgency of the application, arguing that Ntloko had delayed bringing the matter before court after becoming aware of their notice of appeal.
They also maintained that the deceased had been the sole owner of the movable property and that his will gave them authority over the residue of his estate.
They further disputed Ntloko’s claim that she had been married to the deceased and said the couple had separated before his death. According to their version, Ntloko had left their common home in March 2026 and returned only after the deceased’s burial.
Ntloko should have approached magistrate’s court
The High Court found that there was no underlying dispute before the magistrate concerning Ntloko’s entitlement to possession of the movable assets at the time she sought spoliation relief.
The magistrate had simply restored the status quo after finding that Ntloko had been unlawfully dispossessed.
For that reason, the order was final in effect and was suspended once the respondents noted their appeal.
Judge Lekhuleni said Ntloko should instead have approached the magistrate’s court under section 78 of the Magistrates’ Courts Act to seek an order allowing execution of the spoliation order despite the pending appeal.
Section 78 allows a magistrate’s court, after an appeal has been noted, to direct that a judgment be carried into execution or that its execution be suspended pending the appeal, subject to any conditions, including security, that the court considers appropriate.
The High Court therefore concluded that the respondents’ notice of appeal had indeed suspended the spoliation order.
Court criticises continued possession of property
Although the application was dismissed, the judgment did not overlook the circumstances that led to the dispute.
Lekhuleni noted that the respondents remained in possession of the assets they had been found by the magistrate to have unlawfully taken from Ntloko.
The judge said the respondents continued to benefit from their unlawful conduct and described such conduct as fundamentally inconsistent with constitutional values.
However, because the legal issue before the High Court concerned whether the appeal suspended the magistrate’s order, the court could not simply allow the order to be executed without the appropriate application under section 78.
The High Court ultimately dismissed Ntloko’s application and ordered each party to pay its own costs.
