Man loses appeal to return to ex-girlfriend’s family home.
A man who sought to regain access to his former girlfriend’s family home in Yzerfontein after their relationship ended has lost his appeal in the Western Cape High Court, which found that his occupation was based on domestic goodwill rather than legally protected possession.
The court dismissed Jordan Mikael Herzenberg’s appeal against a Malmesbury Magistrate’s Court ruling refusing to restore his occupation of the property.
Acting Judge Veronique Barthus, with Judge James Dumisani Lekhuleni concurring, found that Herzenberg had failed to establish the factual possession required for a spoliation remedy or a legal right entitling him to remain in the house.
Why he was living at the property
The judgment states that Herzenberg began living at the property in March 2025 because of his romantic relationship with the third respondent, Katherine Loubser, and the goodwill of her mother, Elizabeth Loubser.
The property belonged to the respondents’ family trust and was their family home.
The respondents previously explained in an eviction application, which was later withdrawn, that Herzenberg had been allowed to stay with them because his parents were going through a divorce and he needed a quiet and stable environment to prepare for his examinations.
The relationship ended in November 2025.
Shortly afterwards, the ex-girlfriend's family removed the keys from a hook behind the kitchen door, preventing him from entering or remaining at the property.
Court finds occupation did not amount to possession
Herzenberg approached the magistrate’s court seeking restoration of possession under the mandament van spolie, a legal remedy intended to prevent people from taking the law into their own hands by unlawfully dispossessing others.
However, the high court found that he had failed to demonstrate that he exercised the degree of physical control over the property required for the remedy.
The judges said he had not shown that he independently controlled access, excluded others, secured or maintained the premises, or exercised control over a particular room or area.
His occupation remained part of the respondents’ domestic arrangements and depended on their tolerance.
The court stressed that neither exclusive occupation nor possession of personal keys was an absolute requirement for spoliation protection.
However, the absence of his own keys, considered alongside the broader circumstances, supported the conclusion that he had not established sufficiently stable and effective physical control.
The judges also found that he had failed to demonstrate an intention to possess the property for his own benefit, as opposed to residing there as a member of the respondents’ household.
No legal right to remain in the house
Herzenberg had argued that his occupation resembled that of a tenant because he had lived at the property for an extended period without interference.
The court rejected the comparison, finding that a tenancy ordinarily involves a contractual entitlement, defined possession and autonomous control.
None of those features was established in his case.
His occupation was based on a relationship and permission rather than a contractual arrangement.
The court separately considered his application for a final interdict, which required him to establish a clear legal right to remain at the property.
The judges found that he had not demonstrated any contractual entitlement, proprietary interest or other personal legal right entitling him to occupy the house or regulate access to it.
The removal of the keys, the court said, amounted to the withdrawal of permission to access the property rather than an infringement of an established legal right.
The judges concluded that the loss of tolerated access could not, on its own, justify an interdict.
The high court dismissed Herzenberg’s appeal and ordered him to pay the respondents’ appeal costs on Scale B, including counsel's fees.
The respondents’ cross-appeal, which challenged aspects of the magistrate’s reasoning rather than the actual order dismissing the original application, was also dismissed.