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[2010] ZAWCHC 628
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Coetzee v Kingsrivier Estate (Pty) Ltd (2456/2009) [2010] ZAWCHC 628 (10 December 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
Case No: 2456/2009
In the matter between:
GARY JEREMIA COETZEE
….............................................................................
Applicant
and
KINGSRIVER ESTATE
(PTY) LTD
…...............................................................
Respondent
JUDGMENT
DELIVERED ON 10 DECEMBER 2010
ALLIE, J
[1] The applicant seeks
an order in the following terms:
1.1. Restoring
applicant's access to the remainder of the Farm Klip Berg No. 136,
Robertson ("the property");
1.2. Directing
respondent to remove any chains, locks or other obstructions barring
applicant's access;
1.3. Costs.
[2] Applicant described
the relief sought as one for restoration of previously undisturbed
access to the property.
[3] It is common cause
that:
3.1. the property is
landlocked;
3.2. the single road
leading to the property is the only access road. It is private and
passes over privately owned property ending
at the Klip Berg Dam
used by the Department of Water Affairs and the local Water Board;
3.3. a gate owned by the
Department of Water Affairs is located at the end of the road which
leads to land owned by the Municipality;
3.4. respondent is the
owner of the first property that the road passes, namely the farm
Vrolikheid;
3.5. the registered
owners of the property known as the remainder of Klip Berg Farm are
67 people including the respondent several
of whom hold under a 1888
Title Deed;
3.6. the applicant is
not a registered owner of the property;
3.7. there were several
locks and chains placed on the gate but any one lock could open the
gate.
[4] Applicant alleged
that he is the legitimate heir of more than one of the original
owners of the property. He had family excursions
during his
childhood to the property during vacations and visits to the
Klipberg Dam. He is 37 years old and lives in Elsies
River, Cape. He
has caused the municipality to place the municipal rates accounts in
his name.
[5]
During January 2007, the McGregor Emerging Farmer Agricultural
Cooperative Limited was established by
inter
alia,
descendants
of the registered owners of the property.
[6] Acting together with
the Co-Operative, he obtained soil samples from the property and had
them tested at the beginning of
2008.
[7] He wished to make
further investigations on the property. On 26 October 2008,
applicant arrived at the gate with a tractor,
a container and
farming equipment because he wished to assess the property's
suitability for farming.
[8] The representative
of the respondent, Mr De Clercq prevented him from gaining access to
the road. They left the tractor there
and returned to Cape Town
where he enlisted the assistance of an official of the Department of
Land Affairs who facilitated his
gaining access to the property for
the purpose of turning the truck around and then leaving the
property.
[9] Respondent alleged
that applicant initially gained access to the property in 2007 by
cutting the chains on the gate. Applicant
only visited the property
on a few occasions and never stayed the night.
[10] On 27 October 2008,
a day after respondent blocked applicant's access through the road,
applicant's attorney addressed a
letter to respondent's
representative demanding access to the road. On 30 October
respondent's attorney replied and requested
the basis of applicant's
claim that he "operates on the land". Respondent's
attorney further denied that applicant
had a right of access to the
property or right of way across the road. The attorney further
requested documents proving applicant's
interest in the property.
[11] On the same day
applicant's attorney responded by saying that applicant is a
descendant of certain registered owners. No
mention is made of which
registered owners and how descendancy equates to a sole right to
inherit a share in the property. The
letter goes on to allege that
the Co-Operative had authorised applicant exclusively to conduct
farming activities on the property.
[12] On 10 November
2008, respondent's attorney wrote to applicant's attorneys and once
again requested copies of documents that
prove applicant's
entitlement to share in the property. In that letter it is explained
that as a co-owner, respondent was not
consulted about the decision
to conduct farming on the property.
[13] On 12 November 2008
applicant's attorney requested information concerning who conducts
farming on the property, where on
the property they do so and who
gains access to the property. Respondent's attorney replied on 21
November 2008 explaining that
respondent did not assert that it
farmed or wished to farm on the property. Once again proof of
entitlement to the property was
requested but not provided.
[14] None of the
correspondence is mentioned in the founding papers. Despite not
providing any proof of his right to claim an
entitlement to a share
in the property, applicant alleged in these papers that he was so
entitled. Applicant did also not disclose
to the court the names of
the persons that he claims to have inherited the property from nor
did he disclose how he was entitled
to so inherit.
[15] Applicant's counsel
submitted that applicant brought the application in his own capacity
and not on behalf of the Co-Operative.
The allegation in the
founding affidavit and in the correspondence is that applicant
sought access to the property on 26 October
2008 to carry out a
mandate of the Co-Operative. No supporting affidavit by the
Co-Operative was filed. In fact, no supporting
affidavit was filed
by any of the alleged descendants of original owners who were part
of the Co-Operative and who allegedly
authorised applicant to
conduct soil sample testing.
[16] While applicant
alleged in his founding affidavit that he only sought access to the
property to investigate the viability
of farming, his attorney
stated clearly in his letter that applicant had the sole right to
farm. The intended purpose for which
applicant seeks access has
accordingly become vague.
[17] Applicant has
produced no evidence to explain why he as an alleged descendant of
registered owners, should be preferred above
other descendants or
co-owners without them being cited as interested parties in this
application.
[18] Respondent admits
that Mr De Clercq had blocked applicant's access to the road on 26
October 2008. Respondent alleged that
De Clercq did that because
applicant had not established a right to gain access to the property
and to place equipment and a
shipping container on the property.
[19]
Applicant clearly seeks a
mandament
van spolie.
Mr
Abrahams, on behalf of applicant pointed out that applicant seeks to
have his peaceful and undisturbed rights of access to
the road
restored. The relief sought in the Notice of Motion is not access to
the road but the restoration of access to the property.
In the
concluding allegations of the founding affidavit, applicant alleged
that Mr De Clercq deprived him of possession of and
access to the
property. In paragraph 10 of his replying affidavit, applicant
stated that the issue of his right to use the road
in question is
irrelevant to these proceedings and promised that further argument
in that regard would be presented at the hearing.
[20] As mentioned,
earlier, the argument presented on his behalf was that the use of
the road is the relief sought and by implication,
is relevant to the
proceedings. In paragraph 14 of the replying affidavit, applicant
said that respondent did not deny prior,
peaceful and undisturbed
access over the road. That paragraph was in response to respondent's
allegation that prior visits were
to the Dam and not the property
and a denial that applicant enjoys a right of access.
[21]
Applicant, on his own version placed his own lock on the gate. When
this is read with respondent's allegation that applicant
had cut the
old locks and chains which applicant did not deny, then it is not
possible to conclude that applicant had peaceful
and undisturbed
access to the road immediately prior to 26 October 2008. Applicant's
alleged visits to the dam as a child can
clearly not establish the
type of peaceful and undisturbed access he attempts to prove.
Although the courts have held that possession
can be established in
the form of access to incorporeal rights, there has to be actual
quasi-possession of the right which had
to be exercised peacefully
and without disturbance [See
Bon
Quelle (Edms) Bpk v Munisipaliteit van Otavi in
1989 (1) SA 508
(A)
at 515 C - D]
[22]
To the extent that applicant's papers seek a spoliation order to
restore access to the property, I have to consider whether
applicant
has shown that he had peaceful and undisturbed possession of the
property and actual possession. Visits to the property
intermittently during 2007 and 2008 by replacing locks to the gate
of the access road cannot establish possession or that of
a peaceful
and undisturbed nature. [See
Pieter
v Muller
1973 (4) SA 126
(E); Joubert: The Law of SA Volume 27;
first reissue at paragraph 269]
[23]
Applicant
has not shown that he had physical control with or without the
consent of all owners of the property [see
Nienaber
v Stuckey
1946 AD 1049]
He
has not proved that he used the property. He has had neither
continuous nor exclusive control over the property. Even though
Mr
De Clercq blocked applicant's access without a court order,
applicant can only lay claim to due process if he established
peaceful and undisturbed possession.
[24]
In
Nino
Bonino v De Lange
1906 TS 120
at 122
the
rationale for a
mandament
van
spolie
was aptly described as follows:
"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 inquiry or investigation into
the merits of the dispute."
[25]
The
facts in the case of
Willowvale
Estates CC & Another v Bryanmore Estates Limited
1990 (3) SA 954
(W)
which
applicant relied upon are substantially different from the facts
in
casu.
In
the Willowvale Estate's case, the person allegedly despoiled had
shown that it was in undisturbed possession of access to the
property to which the road provided access.
[26] Applicant has not
disputed respondent's allegation that he was previously confronted
and questioned by Mr De Clercq about
his assertion of a right to
enter the property by using the road in question. This fact,
together with applicant's conduct in
forcibly gaining access to the
road by cutting the locks show that whatever limited access
applicant had, was neither peaceful
nor undisturbed.
[27]
I am not persuaded that the applicant has discharged the onus of
proving, on a balance of probabilities, that he was in peaceful
and
undisturbed possession of the property nor that he had peaceful and
undisturbed possession of a right of access to the road
in question.
For a discussion of this onus see
Erasmus'
Superior Court Practice at E9 - 4.
[28] The application is
accordingly dismissed with costs.
ALLIE, J