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[2018] ZAWCHC 25
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Walsh and Another v Rijks Cellar (Pty) Ltd (A305/2017) [2018] ZAWCHC 25 (27 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE
NO: A 305/2017
In
the matter between:
PIUS
WALSH
First
Appellant
DARAHEEN
FARM
CC
Second
Appellant
and
RIJKS
CELLAR (PTY)
LTD
Respondent
JUDGMENT
DELIVERED ON TUESDAY 27 FEBRUARY 2018
GAMBLE,
J:
INTRODUCTION
[1]
The parties to this appeal are farmers in
the district of Tulbagh. The first and second appellants (hereinafter
conveniently referred
to as “Walsh”) own a farm known as
“La Rhone” which abuts the Klein Berg River (“the
river”)
in that district. The respondent (“Rijks”)
is the holder of a licence issued in terms of Chapter 4 of the
National
Water Act, 36 of 1998 (hereinafter referred to as “the
Water Act”) which entitles it to pump water from the river for
use on its farm some distance away.
[2]
On 2 June 2017, in circumstances which will
appear more fully under, Walsh precluded employees of Rijks from
traversing La Rhone
to obtain access to Rijks’ pump situated on
the banks of the river. Rijks approach the local magistrate on an
urgent
ex parte
basis for a spoliation order permitting its employees to enter upon
La Rhone forthwith. An interim order was granted on 9 June
2017
(returnable on 23 June 2017) interdicting Walsh from denying Rijks
and its employees “
unhindered use
and
possession
of its property [on La Rhone] being a pipeline, pump and pump house
[belonging to Rijks] and denying [Rijks] its rights
of access…
thereto on… La Rhone.”
[3]
Acting in terms of Rule 55(3)(d) of the
Magistrates Court Rules, Walsh anticipated the return day on 24
hours’ notice, with
the matter being heard on 20 June 2017. On
that day the rule
nisi
issued
on 9 June 2017 was confirmed, albeit in slightly amended terms, and a
final order was made. Walsh appeals now against the
granting of that
final order. On appeal before us Walsh was represented by Adv DR
Mitchell SC and Rijks by Adv WRE Duminy SC. We
are indebted to
counsel for their helpful heads of argument and submissions from the
Bar at the hearing of the appeal.
THE
RELEVANT FACTUAL BACKGROUND
[4]
The founding affidavit in the court below
was deposed to by Mr. Dorrington, a director of Rijks, on 6 June
2017. It is short and
to the point. He said that a water licence had
been granted in October 2004 permitting the withdrawal of water from
the river and
the storage thereof in nearby dams, the one on La Rhone
and the other on land now owned by Rijks. It is common cause that the
rights
conferred under the license are now lawfully exercised by
Rijks.
[5]
Mr. Dorrington says that in June 2016 a
written agreement was concluded between Walsh and Rijks to regulate
the extraction of water
from the river by means of a pipeline which
traversed La Rhone and for the registration of an appropriate
servitude over that land
in favour of Rijks. A copy of the agreement
is annexed to the founding affidavit and contains the following
recordal -
“
The
parties agree that Rijks accordingly has the pumping right from the
Kleinberg (sic) River on the terms set out in the said licence
to be
exercised by way of a servitude pipeline and pump station over the
property of La Rhone… which servitude still has
to be
registered.”
The
agreement further makes provision for,
inter alia,
the precise
location of the pipeline, the extent and size thereof, as also for
the construction of a pump house to accommodate
a pump to service the
pipeline. It was further recorded that practical completion of “
the
works”
would take place by 15 July 2016.
[6]
Mr. Dorrington says in the founding
affidavit that Rijks’ rights flowing from the water licence and
the agreement with Walsh
comprise the following:
·
the right to “
extract
water from the Klein Berg River by way of a
pipe”
;
and
·
the right “
to
install and maintain a pipeline, a pump house and a
pump on ….La Rhone...”
[7]
Mr. Dorrington says that on 2 June 2017 he
attempted to obtain access to the “
property
and equipment of [Rijks] situated on the farm La Rhone.”
He
goes on to explain that he was unable to do so, having been
threatened and chased off the land by Walsh who addressed him in
foul
language which can only be described as “
agricultural
vernacular”.
As a consequence of
this, complains Mr. Dorrington, Rijks was unable “
to
have access to its property or to maintain its property.”
[8]
Turning to the question of urgency, Mr.
Dorrington stated that the matter was urgent because of the
persistent drought which then
existed (and sadly continues to exist
on a much more devastating scale in 2018) in the Western Cape. He
stated that it was necessary
to extract water from the river for
purposes of watering crops and livestock and for supplying farm
workers with drinking water.
He went on to point out that a severe
storm warning on 7 June 2017 made it necessary for Rijks to safeguard
and secure its property
on the riverbank and to prevent damage
thereto. A suggestion was also made that urgent intervention was
necessary “
to prevent loss of
life”
but this was not explained
in any detail.
PROCEEDINGS
IN THE COURT BELOW
[9]
In seeking urgent spoliatory relief the
following claim was made by Mr. Dorrington in the founding affidavit.
“
[Rijks]
has been unlawfully deprived of its possession and control of the
pipeline, pump and pump house which it is entitled (sic)
by agreement
and permission of the Department of Water Affairs and hereby seeks
that the status
quo
ante be restored.”
[10]
In a written judgment handed down on 27
June 2017, the Magistrate noted that after Walsh had anticipated the
return day of the rule
nisi
granted earlier, he filed a set of papers in which he requested that
the interim order be set aside, on the basis of “
absence
of urgency and that the audi alteram partem rule was not adhere (sic)
to, prior to the issuing of the interim order.”
When
Rijks sought a postponement to reply to Walsh’s papers, this
was objected to and Walsh requested that the matter be determined
there and then on Rijks’ papers as they stood. He expressly
abandoned any reliance on the opposing papers which he had filed.
[11]
Walsh’s papers clearly formed part of
the record but were not placed before this Court, evidently because
the parties believed
that they were not relevant to the determination
of the appeal. While it is correct that the appeal falls to be
determined only
on Rijks’ papers, the record should have been
augmented by the addition of all the papers which were before the
Magistrate.
In any event, counsel for both parties urged this Court
to dispose of the matter in order that finality could be reached.
[12]
In
delivering his 2 page judgment
[1]
the Magistrate stated that he was satisfied that the matter was
urgent and that an
ex
parte
application was warranted, acknowledging in his judgment that the
Western Cape was then in the grips of a severe drought. The
Magistrate found too that Rijks had been deprived of the possession
of its property, that Walsh had taken the law into his own hands
in
denying it access to its property and that a
mandement
van spolie
was
therefore the appropriate remedy.
ISSUES
RAISED ON APPEAL
Urgency
[13]
Before
us Mr. Mitchell SC raised 2 points. Firstly, he argued that there was
a procedural defect in the lower court in that the
Magistrate erred
in hearing the matter
ex
parte.
He
relied on
Office
Automation
[2]
and
submitted that this court had the power to reconsider the procedural
defect alleged to have occurred. He urged us to do so and
to find
against Rijks on this ground alone.
[14]
Mr. Duminy SC urged the court to consider
that what is subject to appeal here is not the interim order granted
on 9 June 2017 since
such interim orders
are
manifestly not appealable.
[3]
Rather, said counsel, the court of appeal could only consider
confirming or setting aside the final order made on 20 June 2017.
It
was argued that at that stage the opposing party was before the
Magistrate, had been afforded the opportunity to file an affidavit,
had done so and then tactically decided to withdraw that affidavit
and then argue the case on the founding papers filed by Rijks.
So,
said counsel relying on
Scenematic
[4]
,
any procedural defect that may have arisen as a consequence of the
ex
parte
hearing
on 9 June 2017 had been remedied by a full hearing on the anticipated
return day. The principle of
audi
alteram partem,
about
which Walsh had evidently complained in argument, had been properly
applied on the return day.
[15]
Scenematic
concerned
an administrative decision taken by a functionary in the Department
of Environmental Affairs and Tourism regarding the
allocation of
fishing rights. A party affected by the decision complained, in an
internal appeal to the Minister, of procedural
irregularities by the
functionary due to defective delegated functions. The matter
thereafter went on review to the High Court
and eventually found its
way to the Supreme Court of Appeal. In that court, the issue of
procedural irregularities in the administrative
process was dealt
with thus.
“
[34]
Quite clearly, if the effect of whatever it was that vitiated the
initial decision is perpetuated so as to taint the appeal
process,
there can be no question of the latter serving to cure the former….
On the other hand, even if the appeal process
were not intrinsically
tainted by the earlier proceedings, the circumstances may be such
that considerations of fairness demand
that both the initial
administrative decision and the appeal process, judged separately, be
lawful and procedurally fair. No purpose
would be served by
attempting to formulate some all-embracing rule. Each case will
depend on its own facts.
[35] To return
to the present case, once it is accepted that the Minister properly
applied his mind to the respondent’s appeal
and that the
process was both lawful and procedurally fair, I can think of no
reason why any shortcoming in relation to the delegation
issue…
should not have been cured by the appeal. There can be no question of
the former tainting the latter.… It
follows that the decision
to reject the respondent’s appeal would have rendered
irrelevant any complaint the respondent might
have had with regard to
the delegation issue.”
[16]
In the circumstances, I am in agreement
with Mr. Duminy SC that whatever shortcomings there might have been
in the application arising
from the failure to give notice to Walsh
were adequately dealt with on the return day. On that day it was in
fact Walsh who wanted
the matter heard immediately, and he can hardly
complain now that he wasn’t given a fair opportunity to answer
Rijks’
case. In fact the stance adopted by Walsh suggests that
he regarded the matter as sufficiently urgent to warrant the matter
being
dealt with without more. In my view there is no merit in the
procedural point raised by Mr. Mitchell SC.
[17]
Turning to the question of urgency itself,
it bears mention that an application for a spoliation order in the
Magistrates Court
is governed by Rule 56(1) of the Magistrates Court
Rules which directs that –
“
(1)
Application to the court for an order of an interdict or attachment
or for a
mandement van spolie
shall
be
made in terms of rule 55.”
(Emphasis
added)
Rule
55(3)(a) of the Rules in turn is to the following effect.
“
55(3)(a)
No application in which relief is claimed against another party shall
be considered ex parte unless the court is satisfied
that-
(i)
the giving of notice to the party
against whom the order is claimed would defeat the purpose of the
application; or
(ii)
the degree of urgency is so great
that it justifies dispensing with notice.”
(b) The notice
of motion in every application brought ex parte shall be similar to
Form 1 of Annexure 1.
(c) Any order
made against a party on an ex parte basis shall be of an interim
nature and shall call upon the party against whom
it is made to
appear before the court on a specified return date to show cause why
the order should not be confirmed.
(d) Any person
against whom an order is granted ex parte may anticipate the return
day upon delivery of not less than 24 hours’
notice.
(e) A copy of
any order made ex parte and of the affidavit, if any, on which it was
made shall be served on the respondent thereto.
(f) Where cause
is shown against any order made ex parte against a party the court
may order the applicant or respondent or the
deponent to any
affidavit on which it was made to attend for examination or
cross-examination.
(g) Any order
made ex parte may be confirmed, discharged or varied by the court on
cause shown by any person affected thereby and
on such terms as to
costs as the court may deem fit.
(h) Ex parte
applications may be heard in chambers.”
[18]
When
Office
Automation
was decided the
provisions of rule 56 read differently. As will be noted from the
citation of the erstwhile section at 445E-I of
the judgment in that
matter, there was then no incorporation of the provisions of rule 55
into rule 56. Rather, at that time rule
56 contained a discrete set
of procedural steps to be followed in an application for a spoliation
order. In any event, it would
appear that the case was decided upon a
different factual footing to the present.
“
Before
the magistrate the application was opposed on a number of grounds.
Only one of these grounds, which was raised as a point
in
limine,
is relevant for purposes
of this appeal…..
The essence of
the point
in
limine
was that
no
allegations
of urgency had been made by the respondent; that the matter was in
fact not urgent; that in the circumstances the respondent should
not
have brought the application
ex
parte
;
and that the magistrate should have required that notice be given to
the appellants in the absence of any allegation that the
giving of
such notice would be prejudicial to the respondent and in the absence
of any case having been made of urgency. This was
also the basis of
the argument advanced on appeal.”
[5]
(Emphasis
added)
[19]
The Full Court in
Office
Automation
held as a matter of fact
that there were no allegations of urgency whatsoever made in that
matter and that the magistrate should,
in the circumstances have
refused to entertain the application. In the present matter the
position is different. In Mr. Dorrington’s
founding affidavit
specific allegations are made in relation to the alleged urgency of
the matter. And, to the extent that no allegation
was made in that
affidavit that the provisions of rule 55(3)(a)(i) were applicable,
the matter could only otherwise be determined
in accordance with sub
rule (ii). In other words the Magistrate had to be persuaded, not
that notice would defeat the object of
the order, but that the matter
was sufficiently urgent to be heard without notice
[20]
And, that is precisely how the Magistrate
approached the application. He initially decided on the papers before
him that the matter
was sufficiently urgent to justify a hearing
without notice and he granted an interim order under rule 55(3)(c).
That order, once
served, was anticipated by Walsh in terms of rule
55(3)(d) and the Magistrate reconsidered the application under rule
55(3)(g).
When he did so, he viewed the matter in the absence of any
factual allegations (both in regard to urgency and the merits) to the
contrary made by Walsh, for that is how Walsh elected to handle the
matter: he effectively withdrew his answering affidavit and
asked the
court to reconsider the application on the basis of Mr. Dorrington’s
founding affidavit.
[21]
There
is no doubt that Mr. Dorrington could have beefed up the founding
affidavit and amplified the allegations regarding urgency.
That
having been said, if one reads the affidavit in its entirety, and in
the context of the facts upon which Rijks relied
[6]
,
together with the allegation of an impending winter storm (which any
reasonable person would have appreciated might cause flash
flooding
and loss of property at the very least), it cannot, in my view, be
said that there was not an element of urgency in the
application. It
is trite that on appeal a court will not easily interfere with the
exercise by a lower court of its discretion
unless such court
“
exercised
its discretion capriciously or upon wrong principle, or has not
brought its unbiased judgment to bear on the question,
or has not
acted for substantial reasons.”
[7]
In the result, I am unable to say that the Magistrate improperly
exercised his discretion regarding urgency under rule 55(3)(a)(ii)
and the appeal cannot succeed on this ground either.
Possession
[22]
The next
argument advanced by Mr. Mitchell SC was that Rijks had failed to
assert and/or establish a right of possession which was
capable of
protection under the
mandement.
Allied
to that was an ancillary argument that at best for Rijks it enjoyed a
contractual right which was not capable of protection
under the
mandement.
[23]
The
mandement
van spolie
is
an extraordinary possessory remedy which derives from the common law
and has been part of our law for centuries. Its purpose
is to protect
possessory rights and when these are infringed, to restore possession
to the party unlawfully deprived of possession
before any enquiry
into the merits of the matter is embarked upon. In
Nienaber
[8]
Greenberg
JA crisply described the position thus.
“…
A
spoliation order does not decide what, apart from possession, the
rights of the parties to the property spoliated were before
the act
of spoliation and merely orders that the
status
quo
be restored…”
[24]
The fundamental
principle underlying the recognition of the remedy of the
mandement
is that the law sets it face against any form of self-help by a party
before it.
“
It is a
fundamental principle that no man is allowed to take the law into his
own hands; no one is permitted to dispossess another
forcibly or
wrongfully and against his consent of the possession of property,
whether movable or immovable. If he does so the Court
will summarily
restore the
status
quo ante
and will do that as a preliminary to any enquiry or investigation
into the merits of dispute.”
[9]
Accordingly,
it has been repeatedly said, the remedy is available to even a
mala
fide possessor
of property or a thief in the event that such
person’s peaceful possession has been unlawfully disturbed.
[25]
A
party relying on the
mandement
must
establish factual possession although it is not necessary to prove
possession in the juridical sense as such.
[10]
It is enough if the holding by an applicant seeking the
mandement
is
with the intention of securing some benefit. So, for example, a
lessee who is deprived of the use and enjoyment of premises is
entitled to rely on the
mandement
even
in circumstances where s/he is not a possessor in the truly juristic
sense.
[11]
I shall revert to this point later in this judgment.
[26]
The facts before the Magistrate showed that
the parties concluded a contract in June 2016 in which a servitude
was conferred on
Rijks to permit it to lay a water pipe over La
Rhone, to construct a pump house on the banks of the river and to
place a pump therein.
The pump was to be electrically driven via an
underground cable which was to be buried adjacent to the water pipe.
The parties
agreed that all of this work was to be completed by 15
July 2016.
[27]
While
the servitude conferred on Rijks had not been registered at the time
of the alleged spoliation, it is common cause that it
was enforceable
inter
partes.
[12]
It
was therefore open to Rijks to seek enforcement of the terms of the
contract through the courts as it possessed a personal right
ad
servitutem adquirendam.
That
right is now statutorily entrenched through the provisions of ss127
and 128 of the Water Act which are to the following effect.
“
127.
Acquisition of servitudes
(1)
A person who is authorised under
this Act to use water may claim-
(a)
a servitude of-
(i)
abutment;
(ii)
aqueduct; or
(iii)
submersion…
(2)
The servitude claimed under
subsection (1)(a) may be-
(a) a personal servitude in favour
of the claimant; or
(b) a praedial servitude in favour
of the claimant in the claimant’s capacity as owner of the
property and which the claimant
may use the water.
128. Rights
and duties of servitude holders and landowners.
(
1)
A holder of a servitude contemplated in this Chapter has a reasonable
right of access to the land which is subject to the servitude
for the
purpose of constructing, altering, replacing, inspecting,
maintaining, repairing or operating the relevant waterwork
[13]
,
or for any other purpose necessary for the effective enjoyment of
that servitude.”
[28]
Given
that we are dealing here with a personal servitude, the provisions of
s128(1) are applicable and Rijks acquired, as part of
the agreed
servitutal right of aqueduct
[14]
,
the statutory right of access to the pipeline and pump house for
purposes of inspection, maintenance, repair and operation thereof.
This accords with the common law obligation imposed on Walsh that he
must permit (or at least tolerate) Rijks’ entitlement
to do
what is necessary for the enjoyment of its servitude of aqueduct, but
then only within the ambit of the servitude.
[15]
Manifestly, access to the pump house for purposes of maintenance or
even temporary removal of the pump to avoid flood damage would
be the
very essence of such entitlement. It follows, in my view that Rijks
was lawfully entitled to demand access to the pipeline
and pump house
on 2 June 2017 as Mr. Dorrington sought to do.
[29]
The
question that then follows is that when Walsh so rudely ordered Mr.
Dorrington off the land on that day, was the latter entitled
to rely
on the
mandement
or
was he limited to interdictory relief against Walsh? It is well
established that the
mandement
is
available for the protection of servitude rights
[16]
.
However, Mr. Mitchell SC urged us to find that Rijks had not
established in the founding affidavit that it was in possession of
the pump house and/or the pipeline on the day in question and that it
had therefore not established the foundational basis for
spoliatory
relief.
[30]
While the founding affidavit of Mr.
Dorrington is, as I have already suggested, rather lean and without
unnecessary muscle, it does
contain the following material
allegations -
·
“
On 2 June 2017 at 11h30 I tried
to obtain access to the property and equipment of [Rijks] situated on
the farm La Rhone;
·
By chasing me…away from the farm
La Rhone..and denying the staff and personnel of..[Rijks] access to
the pipeline, pump and
pump house…[Walsh]...is making it
impossible for..[Rijks]...to have access to its property or to
maintain its property;
·
A storm warning on 7 June 2017 and
subsequent cold fronts also make it urgent that...
[Rijks]...safeguards and secures his (sic)
property on the riverbank
and safeguard its future water supply;
·
[Rijks] has been unlawfully deprived of
its possession and control of the pipeline, pump and pump house…”
[31]
I regret that I am unable to agree with
counsel’s submission on this point. In my view, the only
reasonable inference and
conclusion which a reasonable reader can
draw from these allegations is that prior to 2 June 2017, Rijks’
equipment and pipeline
were already in place and that it had
commenced exercising its rights of servitude in the terms of the
agreement of June 2016,
which as we know had contemplated completion
of the works nearly a year before - by 15 July 2016.
[32]
Furthermore, if the pump and pipes were not
in place, it would have made no sense for Rijks to have approached
the Magistrate for
urgent spoliatary relief which, in such
circumstances, would have had no practical effect. Finally, if Rijks
had not placed its
equipment on the river bank, laid its pipes and
commenced exercising its right under the servitude agreement, it is
reasonable
to assume that Walsh would have said so when he approached
the court on the anticipated return day. But rather than do so, he
played
ducks and drakes with the court and seemingly for reasons of
expediency sought to withdraw his affidavit from the suit. He must
now bear the consequences of that decision.
[33]
In
Nienaber
[17]
the
court of appeal expressly held that the
mandement
van spolie
is
available where a party, who is in possession of a right of access to
land, is deprived thereof through the unlawful conduct
of
another.
[18]
“…
(I)t
is clear that the appellant was
in
possession of the right of access
through
this gate of which he has been deprived, and the remedy is therefore
available.”
[34]
But
even if it be said, contrary to what I have already found, that Rijks
had not established that it had physically taken possession
of the
land which was the subject of the servitude, the
mandement
was
still available to it on the basis that its servitutal right of
aqueduct afforded it a right to possession of the land in question.
In terms of
Bon
Quelle
[19]
that right is regarded as a right of
quasi
possession
which
is similarly capable of enforcement through spoliation proceedings.
CONCLUSION
[35]
In the
circumstances I am of the view that the order of 20 June 2017 was
correctly granted.
ORDER
OF COURT
The
appeal is dismissed with costs.
__________________
GAMBLE,
J
I
agree:
_____________________
TONJENI, AJ
JUDGE:
Gamble
J
et
Tonjeni AJ
JUGDMENT
DELIVERED BY:
Gamble J
FOR
APPELLANTS:
Adv. D Mitchell SC
INSTRUCTED
BY:
Joubert Van Vuuren Incorporated
FOR
RESPONDENT:
Adv. W R E Duminy SC
INSTRUCTED
BY:
H Pretorius Attorneys
DATES
OF HEARING:
9 February 2018
DATE
OF JUDGMENT (Reasons) :
27 February
2018
[1]
The brevity thereof is, in part at least, attributable to the fact
that use was made of a particularly small font.
[2]
Office Automation
Specialists CC and Another v Lotter
1997 (3) SA 443 (E)
[3]
In terms of
s 83(b) of the Magistrates’ Court Act,32 of 1944, an appeal to
the High Court lies against “
any
rule or order in such suit or proceeding and having the effect of a
final order..”
[4]
Minister of Environmental
Affairs and Tourism and another v Scenematic Fourteen (Pty) Ltd
[2005] ZASCA 11
;
2005 (6) SA 182
(SCA) at
[33]
-
[35]
. See also
Slagment
(Pty) Ltd v Building, Construction and Allied Workers’ Union
and others
1995 (1) SA 742
(A) at 756D-757A.
[5]
444D-F
[6]
The on-going crippling drought in the Western Cape was (and remains)
a fact of daily life of which every inhabitant is acutely
aware.
[7]
Minister of Education,
Western Cape and others v Governing Body, Mikro Primary School and
another
2006 (1) SA 1
(SCA) at [25].
[8]
Nienaber v Stuckey
1946 AD 1059
at 1053
[9]
Nino Bonino v De Lange
1906 TS 120
at 122
[10]
Yeko v Qana
1973
(4) SA 735
(A) at 739E-G;
Ness
and another v Greef
1985(4)
SA 641 (C) at 647D-G.
[11]
Bennett Pringle (Pty) Ltd v
Adelaide Municipality
1977
(1) SA 230
(E) at 232H;
Outdoor
Network Ltd and another v The Passenger Rail Agency of South Africa
and another
[2014] ZAGPJHC
271 (30 April 2014) at [23]
[12]
Willoughby’s
Consolidated Co Ltd v Copthall Stores Ltd
1918 AD 1
at 16
[13]
“
Waterwork”
is
defined in s1 of the Water Act to include “
any
borehole, structure, earthwork or equipment installed or used for or
in connection with water use"
and
would therefore include Rijks’ pump and pump house.
[14]
According
to
LAWSA
(2
nd
ed) Vol 24 para 565 “
aquaeductus
“
is
a “
rural
servitude of water [which
includes]...the right of leading water over or out of another’s
land...”
[15]
Van der Merwe
Sakereg
(2
nd
ed) at 465;
Van der Walt
The Law of Servitudes at
230-1;
Johl and another v
Nobre and others
[2012]
ZAWCHC 20
(20 March 2012) at [14].
[16]
Bon Quelle (Edms) Bpk v
Munisipaliteit van Otavi
1989 (1) SA 508
(A) at 516C.
[17]
At 1059
[18]
In that matter the respondent had precluded access through a farm
gate to the applicant who claimed to be a lessee of the land
and
wished to recommence ploughing thereon.
[19]
At 514D-F; 515C-F