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2023
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[2023] ZAFSHC 200
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Venter and Others v Fichardt and Others (2215/2023) [2023] ZAFSHC 200 (19 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 2215/2023
In
the matter between:
CHRISTIAAN
CORNELIS VENTER
First Applicant
CHRISTIAAN
CORNELIS VENTER
N.O.
Second Applicant
(
in
his capacity as duly, appointed trustee of the
Chris
Venter Family Trust, IT 1076/08
)
HANLIE
VENTER
N.O.
Third Applicant
(
in
her capacity as duly appointed trustee of the
Chris
Venter Family Trust, IT 1076/08
)
IZAK
DANIËL BOSMAN
N.O.
(
in
his capacity as duly appointed trustee of the
Chris
Venter Family Trust, IT 1076/08
)
Fourth Applicant
and
EMANUEL
(“MANI”) GUSTAV FICHARDT
First
Respondent
IRENE
FICHARDT
Second Respondent
GUSTAV
(“NIEL”) EMANUEL FICHARDT
Third
Respondent
JULIUS
FICHARDT
Fourth Respondent
JUDGMENT
BY:
C
REINDERS, J
HEARD ON:
12 MAY 2023
DELIVERED
ON:
19 MAY
2023
[1]
The applicants move for urgent relief under the mandament van spolie.
For sake of brevity the full description
of the parties will not be
cited, safe where necessary to do so. The relief sought by applicants
appears from the notice of motion
(although in some respects
incoherent) and is quoted verbatim:
1.
“
That this application be heard as an
urgent application in accordance with the provisions of Uniform Rule
of Court 6(12) and that
the requirements pertaining to service and
time periods be dispensed with
2.
The First Respondent (
and
the Second-, Third- and Fourth Respondent, in as far as the Second-,
Third- and Fourth Respondent may be acting / spoliating
the
Applicants on their own accord and not on the instructions and
direction of the First Respondent
) be
ordered to remove all and any fences, poles and/or obstacles
constructed, including but not limited to chains, wire, poles
or
locks, if any, giving:
2.1
the First Applicant and/or the Second to
Fourth Applicants, including their employees, contractors and/or
agents, undisturbed and
unfettered access to the gravel road
connecting and leading from the Farm Simonsium 594, district Reitz
(
adjacent to and/or across the Farm
Simonsium 594, district Reitz and/or the farm Gegund 420, district
Reitz and/or the farm Rietfontein
380 and/or the farm Silo 946 and/or
the farm Waldo 593
) to the tar road
connecting the town of Reitz in the Free State Province with the town
of Warden in the Free State Province;
and
2.2
The First Applicant and/or Second to Fourth
Applicants, including their employees, contractors and/or agents,
undisturbed and unfettered
access to the Klein Bietjie Dam, also
known as the Bass Feather Dam, situated outside the town of Reitz in
the Free State Province
on or near the Farm Waldo 593, Reitz District
from the farm Leland 575, District Reitz;
3.
that the First Applicant and/or the Second
to Fourth Applicants, including their employees, contractors and/or
agents, unfettered
use of and/or possession of and/or access to:
3.1
the gravel road connecting and leading from
the Farm Simonsium 594, district Reitz (
adjacent
to and/or across the Farm Simonsium 594, district Reitz and/or the
farm Gegund 420, district Reitz and/or the farm Rietfontein
380
and/or the farm Silo 946 and/or the farm Waldo 593
)
to the tar road connecting the town of Reitz in the Free State
Province with the town of Warden in the Free State Province;
and
3.2
the portion of the land situated on the
farm Leland 575, district Reitz and/or the farm Waldo 593, district
Reitz adjacent to the
Klein Bietjie Dam, also known as the Bass
Feather Dam, situated outside the town of Reitz in the Free State
Province, forthwith,
be restored
ante
omnia.
4.
That in the event that the First Respondent (
and/or Second
and/or Third- and/or and Forth Respondent, if applicable
) fail to
comply with the order in 2 and 3 above within the
twenty four [24]
hours
from the time and date of service of the order in 2 and 3
above upon the First Respondent (
or other Respondents opposing
this application
), the sheriff for the district of Reitz, Free
State, be and are hereby authorised to do all necessary to give
effect to the order
granted in 2 and 3 above and will such costs
incurred by the sheriff for the district, Reitz, constitute costs
taxable and recoverable
by the Applicants form the First Respondent
(
and/or any further Respondent opposing this application
);
5.
The First Respondent and any other
Respondents who may unsuccessfully oppose this application, be
ordered and directed to jointly
and severally, the one to pay, the
others to be absolved, to pay the Applicants' costs on a scale as
between attorney and own client.
6.
Further and/or alternative relief.”
[2]
As is evident from the quoted notice of motion, the relief prayed for
by the applicants entails two averred
incidents of spoliation, to
wit, that in relation to the Bietjie Water Dam, also known as the
Bass Feather Dam (“the dam”),
and in respect of the
Simonsium road (“the road”). It is common cause (or
not seriously disputed) that fences
were erected or constructed both
on the road and adjacent to the dam (as is fully described in the
notice of motion). First applicant,
Mr CC Venter, deposed to the
application in his private capacity as well as his official capacity
as a duly appointed trustee of
the
Chris Venter Family Trust
(“the trust”).
[3]
The respondents opposed the relief claimed in respect of both urgency
and, to the extent that will be
set out herein later, the merit of
the application. Having heard submissions by counsel representing the
parties, I was satisfied
that the applicants had made out a case for
the relief in prayer 1, granted such an order and took the matter on
the roll.
[4]
In the answering affidavit the deponent, Mr EG Fichardt (the first
respondent), states that he deposes
to the affidavit on behalf of the
second, third and fourth respondents. Paragraph 8 of the answering
affidavit reads: “
Insofar as the
applicants seek the restoration of their use, possession and/or
access to the gravel road… (as per prayers
2.1 and 3.1 of the
notice of motion), I formally tender such access to the applicants…
”
At the commencement of the hearing of the
application, the tender was repeated orally, and I was informed that
the respondents were
already busy removing the fence at the time. The
tender was made
“…
pending
the outcome of an action to be launched by me, within 30 days of the
date of the granting of an order herein. In these action
proceedings
I shall seek a declaratory order to the effect that the road has been
constructed on my land and that I am entitled
to fence off my
property as I have done.”
Accordingly,
it is only necessary to deal with the issue of the dam herein.
[5]
Mr Venter avers that the trust, its employees, himself and his
friends have had peaceful and undisturbed
possession and use of the
dam in order to access, fish, boat and/or pump (withdraw) water from
the dam since at least 2019. The
applicants aver that the respondents
had spoliated them by the erection of the complained of fence. He
avers that the issue in
respect of the dam is no different than the
conceded issue in respect of the road.
[6]
The respondents in answering to the applicants’ founding
affidavit summarize its opposition
to the relief sought by applicants
(apart from disputing urgency), as follows:
“…
14.2
the Chris Venter family Trust (“the trust”) has not
authorised the
launching of this
application;
14.3
the applicants have access to the dam via the applicant’s farm
Simonsium 594 and,
therefore, are not deprived of access to the dam;
and
14.4
the applicants have not made out a case for the granting of an order
in terms of the mandament van
spolie.”
[7]
The attack by respondents regarding the authority of Mr Venter to
launch the application
on behalf of the trust, is without merit in my
view. The sad passing of the third applicant still left the fourth
applicant to
constitute, together with Mr Venter, the required two
trustees to take decisions on behalf of the trust including the
institution
of these proceedings, as is evident from the trust deed
annexed to founding affidavit. Moreover, the respondents failed to
file
a notice in terms of Uniform Rule 7.
[8]
It is trite that the mandament van spolie is a possessory remedy, the
rationale being
that no person is allowed to take the law into their
own hands.
[1]
It
seeks only to restore the
status
quo ante.
It does so by mandatory order irrespective of the merits of any
underlying dispute regarding the rights of the parties.
[2]
The
despoiled persons need only prove that they were in possession of the
object and were wrongfully deprived of such possession
without
consent.
[3]
[9]
In my view the crisp issue in this application relates to the
question on what constitutes
possession for purposes of the mandament
van spolie.
[10]
Relying on the work of Silbert and Schoeman: The Law of Property, Mr
Van Niekerk (appearing for
respondents) contended that, on the facts
of the matter, the applicants were not in possession of the dam. As I
understood his
argument, he contended that some sort of a physical
presence at all times next to the dam was required in order to
constitute possession
and successfully apply for relief under the
mandament van spolie. It was also contended that the applicants had
alternative access
to the dam, and the small opening provided for
access to the pump house close to the dam, should suffice for
purposes of accessing
the pump.
[11]
I was referred by counsel for applicant to case law dealing with
possession. Mr Snyman (acting
on behalf of applicants) submitted that
the use of the road or route is included in the concept of
possession, with reference to
Knox
and Another v Second Lifestyle Properties (Pty) Ltd and Another
[4]
where it was held on appeal:
“
[19]
…
The use of a road which has been despoiled, gives rise to
protection under the mandament van spolie regardless of whether the
road
is subjected to multiple use by other person other than the
applicant
. The appellants in casu were confronted with a
situation where the road they have been using was closed.
They can
no longer
use that road
.
Their peaceful and undisturbed
possession of that road is therefore despoiled through the closure
thereof
. In my view, they are entitled to relief under
spoliation. (own emphasis)
[20]
One of the findings by the Court a quo in dismissing the application
for spoliation is
that the appellants had an alternative route
that they could have used
. Apart from the fact that the
appellants in their affidavits give an explanation as to the inherent
difficulties in the use of
the alternative route, it is my view that
this was a collateral issue which cannot be raised as a defence
against spoliation. It
is trite that in an application for
spoliation, the applicants need to show only two grounds namely:
20.1
That they were in peaceful and undisturbed
possession of the thing or in this case, the road; and
20.2
That they have been unlawfully deprived of that
possession.
See
in this regard Yeko v Qana
1973 SA 735A.
[21]
Once an applicant establishes these two
grounds, he is entitled to relief in terms of mandament van
spolie.
The use of an alternative route has
no relevance to the
exercise of peaceful and undisturbed possession the thing. Further,
it is not a defence to the unlawful deprivation
of the thing
possessed.
(Own emphasis)
[22]
It seems to me that the remedy provided by
spoliation permits very limited defences. The only possible
defences
should be in the form of a response to the grounds stated above,
namely that the applicant was not in peaceful and undisturbed
possession alternatively that the deprivation of such possession was
lawful. I accordingly respectfully disagree with the Learned
Judge in
the Court a quo that the application for spoliation should fail
on
the ground that because there was or there may be an alternative
route which the applicant could have used
.” (Own emphasis)
I align myself with the
reasoning and views expressed herein above by Motle, J
(Mngquibisa-Thusi and Tuchen JJ concurring).
[12]
In
Moss
and Another v Paxton
[5]
the
contention by the respondents that some sort of physical and
continuous presence was required to establish possession under
spoliation, was rejected by Traverso DJP (as she then was) with whom
Van Staden AJ agreed) in holding that:
“
I
need not repeat what I have stated above.
In
my view the appellants demonstrated clearly that they have been
dispossessed of their peaceful, private and undisturbed possession
of
their use of the garden
and that this was brought about by the demolition of the
walls.”
[6]
(Own emphasis)
[13]
Applying the above principles to the facts of this matter I have to
conclude that the applicants have made
out a case that they were in
undisturbed possession of both the dam as well as the road. That
undisturbed possession was disturbed
by the respondents wrongfully
and without consent of the applicants. In respect of the road, the
respondents were probably advised
that their conduct constitutes
spoliation and hence the tender and communication that the
respondents were busy removing the fence.
The applicants are
therefore entitled to an order restoring their possession ante omnia.
I agree with the submission by Mr Snyman
that correspondence attached
to the papers, more specifically the uncontested transcribed voice
message wherein the second respondent
states words to the effect that
they (respondents) will erect fences on the borders of their farm as
there is no more neighbourliness
between them, confirms that
respondents intended to spoliate the applicants and ultimately
succeeded. The applicants are however
not entitled to an order of
“unfettered” use and/or an order granting them “access”.
Such orders may appear
to be final in form, granting the applicants
rights which in my view should not be granted under the guise of a
spoliation order.
[14]
The usual order of cost is that it follows the successful party. It
was submitted by Mr Van Niekerk that
in the event of the applicants
being successful, cost in relation to the road should only be granted
up until the date of the filing
of respondents’ answering
affidavit in view of the respondents’ tender. Mr Snyman urged
me to grant
costs on a scale as between
attorney and own client
against the
respondents in view of the background to this application, including
the alleged mala fides of respondents. I do not
intend making any
punitive cost orders.
[15]
Accordingly, I make the following order:
1.
The respondents are ordered to immediately
restore the applicants’ undisturbed possession ante omnia in
respect of:
1.1
the gravel road connecting and leading from
the Farm Simonsium 594, district Reitz (adjacent to and/or across the
Farm Simonsium
594, district Reitz and/or the farm Gegund 420,
district Reitz and/or the farm Rietfontein 380 and/or the farm Silo
946 and/or
the farm Waldo 593) to the tar road connecting the town of
Reitz in the Free State Province with the town of Warden in the Free
State Province; and
1.2
the portion of the land situated on the
farm Leland 575, district Reitz and/or the farm Waldo 593, district
Reitz adjacent to the
Klein Bietjie Dam, also known as the Bass
Feather Dam, situated outside the town of Reitz in the Free State
Province.
2.
The respondents are ordered to remove all
and any fences, poles and/or obstacles constructed including chains,
wires, poles and
locks interfering with and/or preventing applicants’
undisturbed possession.
3.
In the event that respondents fail to
comply with this order within 72 hours of service of this order, the
Sherriff for the District
of Reitz, Free State is authorized to give
effect to this order and do all that is necessary to restore the
applicants’ undisturbed
possession of the road and dam
specified in paragraphs 1.1 and 1.2 of this order.
4.
The respondents are ordered to pay the
costs, jointly and severally, the one to pay, the others to be
absolved.
______________
C. REINDERS, J
On
behalf of the Applicants:
Adv
C Snyman
Instructed
by:
FJ
Senekal Inc
BLOEMFONTEIN
On
behalf of the Respondents:
Adv
Van Niekerk
Instructed
by:
Corne
Boshoff Attorneys
c/o
Phatsoane Henney Attorneys
BLOEMFONTEIN
[1]
Administrator,
Cape, & Another v. Ntshwaqela & Others
1990(1)
SA 705 at 717 – 721.
[2]
Van
Rhyn and Others NNO v Fleurbaix Farm (Pty)Ltd
2013 (5) SA 54 (WCC).
[3]
Ngqukumba
v Minister of Safety and Security
2014 (5) SA 112
CC at para 13.
[4]
A28/2011 [2012] ZAGPPHC 223 (11 October 2012).
[5]
(A46/2011)
[2011] ZAWCHC 361
(7 September 2011).
[6]
At para [11].