Oosthuizen v Terblanche (A84/2021, A85/2021, A86/2021) [2022] ZAFSHC 81 (24 March 2022)

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[2022] ZAFSHC 81
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Oosthuizen v Terblanche (A84/2021, A85/2021, A86/2021) [2022] ZAFSHC 81 (24 March 2022)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
IN THE HIGH
COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable:
Of
Interest to other Judges:
Circulate
to Magistrates:
NO
NO
NO
Appeal Case No’s:
A84/2021, A85/2021 & A86/2021
Court
a quo
Case No’s:
H50/2020, 125/2020 & 132/2020
In the matter
between:
JACOBUS DU
PLESSIS OOSTHUIZEN
Appellant
(Identity number:
[….])
and
ELIZABETH SOPHIA
TERBLANCHE
Respondent
(Identity number:
[….])
CORAM
:
DAFFUE J
et
RAMLAL AJ
HEARD
ON
:
14 FEBRUARY 2022
DELIVERED
ON
:
24 MARCH 2022
JUDGMENT BY:
DAFFUE J
This judgment was
handed down electronically by circulation to the parties’
representatives by email, and release to SAFLII.
The date and
time for hand-down is deemed to be 14h00 on 24 March 2022.
I
INTRODUCTION
[1]
Two elderly siblings are the role players
[RA1]
[JD2]
in
acrimonious litigation that kicked off in the Magistrate’s Court of
Reitz.  The elder sibling has recently turn 76 years
old whilst
his younger sister is 67 years old.
[2]
We are confronted with three appeals between the same parties that
were
argued the same day.  In appeal A84/2021 a final protection
order was granted by the Magistrate of Reitz on 13 May 2021 in favour
of the applicant (the respondent in the appeal) against her elder
brother who is the appellant in the proceedings before us.
[3]
In appeals A85/2021 & A86/2021 the rules
nisi
initially
granted by the Magistrate of Reitz in favour of the present appellant
based on his sister’s alleged spoliation were discharged
on 13 May
2021.  The three applications were simultaneously heard on 29
April 2021 by the court
a quo
.
[4]
The appellant, being the unsuccessful litigant in all three matters
in the
court
a quo
, took them on appeal and although counsel
for the parties drafted separate heads of argument pertaining to the
protection order and
the dismissal of the spoliation applications,
all three appeals were argued simultaneously.  Insofar as the
facts relating to
the different matters are to a great extent
intertwined I have decided to prepare one judgment to deal with all
three appeals.
II
THE PARTIES
[5]
The appellant is Jacobus Du Plessis Oosthuizen, as mentioned a
76-year-old
male person who resides in the town of Reitz and farms in
the district.  He was represented before us by Adv J Els of the
local
Bar.
[6]
The respondent is
Elizabeth Sophia
Terblanche who resides in Odendaalsrus. She is a trustee of a trust
that owns several farms in the district of Reitz.
She still
carries on farming activities although on a limited scale.  She
was represented before us by
Adv
E Larney
of the Johannesburg Bar.
III
THE ORDERS OF THE COURT
A
QUO
[7]
On 11 November 2020 the respondent, who was not represented by a
legal practitioner
at the time, applied for and obtained an
interim
protection order with return date 3 December 2020 against her
brother, the present appellant, under case number H50/2020 in
accordance
with the provisions of the Protection from Harassment
Act.
[1]
[8]
After filing of the necessary affidavits, including a supplementary
founding
affidavit by the respondent who obtained legal
representation at a later stage, and after hearing argument on 29
April 2021, the
court
a quo
made the following order on 13 May
2021 which is quoted
verbatim
:
“
The protection
order is confirmed and amended to included that the respondent may
not enter the Boomplaats, Whala, Templemore and
uitgunst Farms
without the express prior consent of the Applicant, this includes the
Whala Farm and Boomplaats Farm routes, in the
event of an actual
emergency, which includes fires, floods or a medical emergency,
consent of the Applicant may be waived.
Should an accidents
occur i.e livestock wandering onto neighboring farms the retrieval
thereof would not constitute a contravention
of the order.
No order as to
costs.”
[2]
[9]
On 3 December 2020 and shortly after the granting of the
interim
protection order the appellant applied
ex parte
under case no
125/2020 for urgent relief in terms of the mandament van spolie.
This order with return date 21 January 2021 was
granted on the same
day in the absence of the respondent and just after the
interim
protection order with return date 3 December 2020 was extended at
the request of the appellant’s attorney to 21 January 2021.
[10]
In terms of the spoliation order the respondent was directed “
to
immediately remove the lock on the gate and to provide a duplicate
key for the lock affixed to the gate to the Respondent, giving
access
from the T2410 to the Farm Whala, district Reitz, Free State
Province.”
[3]
I
shall refer to this route as the Whala route herein after.  On
21 January 2021 the rule
nisi
was extended by agreement to 11 March 2021 and again on that date to
29 April 2021 as was the case with the other two matters.
After filing full sets of papers by agreement and as ordered by the
court
a
quo
,
and the hearing of argument, the rule
nisi
was discharged on 13 May 2021.  Each party was ordered to pay
his or her own costs.  Written reasons were delivered on
18 June
2021.
[4]
[11]
On 11 December 2020 the appellant brought another urgent
ex parte
spoliation application under case no 132/2020.  Similar relief
was sought and ordered, save insofar as the relief applied to
the
access from the S74 to the farm Gedagtenis, district Reitz, herein
later referred to as the Boomplaats route.  The return
date was
again 21 January 2021 when it was also extended by agreement as
mentioned above.
[12]
The application was eventually ripe for hearing and argued on 29
April 2021 as was the case in the other
two matters.  On 13 May
2021 the court
a
quo
discharged the rule
nisi
with costs on a party and party scale, including the costs of
counsel.
[5]
The
written reasons were also provided on 18 June 2021.
IV
THE REASONS FOR THE JUDGMENTS
The harassment
order:
court
a
quo case number H50/2020 and appeal A84/2021:
[13]
One could have been excused for thinking that the court
a quo
was dealing with spoliation when it presented its reasons for
judgment in the harassment application.  Aspects that should
have
been dealt with in the reasons for discharging the rules
nisi
in the spoliation applications were dealt with in detail.
Having mentioned this, the parties and the respondent in particular
must be blamed.  The supplementary founding affidavit consisting
of 60 pages regurgitates to a large extent what was stated
in the
answering affidavits in the spoliation applications.
[14]
The court
a
quo
mentioned that the relationship between the parties became sour as
long ago as 2018, but in 2020
“
matters
(were)
coming
to a head”.
[6]
The
court
a
quo
did not indicate which of the allegations made by the respondent were
accepted to be correct in order to grant final orders in her
favour.
It
inter
alia
referred to the alleged threating electronic message sent by
appellant to the respondent pertaining to the closing of the gates by
the respondents,
[7]
without coming to a pertinent conclusion, bearing in mind the
surrounding circumstances and the respondent’s equally aggressive
response.
[15]
The court
a quo
also
referred to
“
shooting lights”
that
were directed on 20 October 2020 to the respondent’s farm
residence.  Although the appellant indicated that his tenant
was
shooting porcupines on Iowa, he failed to attach a confirmatory
affidavit of the tenant.  The appellant, who stays in the
town
of Reitz, explained that he as an elderly person would not and did in
fact not visit the farms in the middle of the night due
to security
reasons. The court
a quo
did not state whether it accepted that the appellant was the cause of
the alleged harassment, but should have found that the appellant’s
version could not be rejected as false or far-fetched.
[16]
On 11 November 2020 the appellant did not seek permission to enter
the respondent’s farm in search
of missing cows which caused
another confrontation.  The appellant also informed the
respondent’s lessee, Mr Fivaz, that although
he did not have to
make use of the Whala and Boomplaats routes, he would continue doing
so merely in order to aggrieve the respondent.
Appellant would
also utilise the respondent’s workers without their permission and
even flash his vehicle’s lights to her on
her own farm in order for
her to give way to his vehicle.  The court
a quo
held
that the appellant had insulted the respondent on more than one
occasion in the presence of her employees and others which caused
her
emotional and psychological harm.
[17]
It appears as if the court
a quo
accepted the version of the
respondent on the basis that the appellant responded with bare
denials to her allegations.  The
court
a quo
concluded
that not one specific act, but the cumulative behaviour and actions
of the appellant over a period of time which escalated
during the
latter part of 2020 constituted harassment.
The dismissal of
the spoliation applications:   court a quo case numbers
125/2020 & 132/2020 and appeal case numbers
125/2020 &132/2020:
[18]
As mentioned above, the court
a quo
dealt quite extensively
with the appellant’s right to make use of the Whala and Boomplaats
routes.  It appears from the reasons
provided in the harassment
application as well as the two spoliation applications that the court
a quo
failed to accept that the appellant had peaceful and
undisturbed use of the specific routes for many years.  The
appellant was
criticised for not deciding whether he was relying on a
servitude obtained through prescription, or a right of way.  The
court
a quo
held that there was no agreement between the
parties concerning a right of way, or that a right of way was created
by a court order
and that the appellant was also not entitled to the
use of the two routes insofar as no servitude was created by way of
prescription.
V
THE GROUNDS OF APPEAL
The harassment
order:  Court a quo case number H50/2020 and appeal A84/2021:
[19]
The notice of appeal consists of 27 grounds of appeal.  This was
really not required.  No wonder,
the appellant’s counsel
reduced the grounds to 12 in his heads of argument.  Eventually,
the matter was argued on much more
limited issues.  The
appellant’s case is that the court
a quo
erred in finding
that the appellant committed the acts complained of.  Even if
these were proven which was denied, the acts
on their own, or even
cumulatively, did not constitute harassment as defined in the Act.
It was also submitted that the court
a quo
erred in amending
the initial order granted in order to prevent the appellant from
using the Wahla and Boomplaats routes.  It
was submitted in
conclusion that the court
a quo
failed to discharge the rule
nisi
, but instead, confirmed the protection order in the
amended form.
The dismissal of
the spoliation applications:   Court a quo case numbers
125/2020 & 132/2020 and appeal case numbers
125/2020 &132/2020:
[20]
The same scenario applies to the grounds of appeal pertaining to the
spoliation applications.  The
two notices of appeal consist of
13 and 16 grounds of appeal respectively.  These grounds were
also limited in the heads of
argument and the appeal was eventually
argued on narrow issues.
[21]
It is the appellant’s case that the court
a quo
erred in
accepting that urgency was a requirement to succeed with the
mandament van spolie and that he could only be spoliated if
he had a
right to possession and/or that he became entitled to use the two
routes based on prescription.  The court
a quo
should
have found that the appellant was in
de facto
possession of
the two routes, that he was being despoiled and consequently, the two
requirements to succeed with the mandament van
spolie have been met.
Therefore, the two rules
nisi
should have been confirmed with
costs.
VI
THE COMMON CAUSE FACTS
[22]
The following facts are common cause or were not seriously contested:
22.1
The parties’ father was the owner of several farms in the district
of Reitz.
Before his death he established two trusts, the
Boomplaats Trust and the Iowa
Trust.
22.2
The appellant is the trustee of the Iowa Trust who owns
inter alia
the Farm Iowa and other farms, whilst the respondent is the trustee
of the Boomplaats Trust who
inter alia
owns the farms
Boomplaats and Whala.
22.3
In 2001 the appellant bought the remainder of the farm Gedagtenis
(“Gedagtenis”).
22.4
The aforesaid farms are adjacent to each other.  Whala is
situated next
to the T2410 gravel road between Harrismith and Reitz.
22.5
In 1985 double gates were installed at the entrance from the T2410 to
Whala.
22.6
In 1995 the appellant installed a gate in the border fence between
Whala and
Iowa.  The route is referred to herein as the Whala
route.
22.7
After appellant had bought Gedagtenis in 2001 he used the entrance
route from
the S74 through Boomplaats to this farm, the Boomplaats
route.
22.8
Although in dispute since when the appellant had access to Iowa and
Gedagtenis
as alleged by him in the two founding affidavits, there
can be no doubt that it was the case for many years.  In fact,
he had
undisturbed and peaceful possession of both routes, the first
route being the subject in application 125/2020 and the second in
application
number 132/2020, these being the Whala and Boomplaats
routes respectively.  Even on the respondent’s version the
routes were
used by the appellant from at least 2006.
[8]
22.9
Notwithstanding the fact that the parties are siblings, they have not
seen eye
to eye for some time.  From about June 2018 their
relationship became loathsome.
[RA3]
The
animosity intensified especially during the latter half of 2020.
22.10
It is not in contention that the respondent took the law into her own
hands and unlawfully deprived
the appellant of his possession of the
Wahla and Boomplaats routes, although she subjectively believed that
she was entitled to do
so.  No doubt, she admitted removing
gates used by the appellant on the Whala route to get access to his
farm, Iowa and fencing
off the entrances as well as placing scrap
metal along the fence openings.  She also admitted to
digging
[RA4]
a trench to
prevent access to appellant and eventually locking gates without
providing the appellant with keys.
[9]
22.11
On 11 November 2020 the respondent approached the court
a
quo
,
relying on the appellant’s harassment.  An
interim
order was issued with return date 3 December 2020.  The terms of
the order are not in line with the relief sought by the respondent,
but this is immaterial for purposes hereof.  Clearly, she sought
more extensive relief than initially obtained.
[10]
22.12
On 13 November 2020 the
interim
order was served on the
appellant.  He failed to take any steps in order to oppose the
application on the return date.
Instead, he eventually deposed
to an affidavit on 2 December 2020, not to oppose the protection
order, but in order to obtain relief
in terms of the mandament van
spolie.  As mentioned the application was brought
ex parte
.
The appellant also relied on alleged urgency.
22.13
On 3 December 2020 appellant, his attorney, Mr Johan Niemann
(“Niemann”) of Niemann Grobbelaar
Attorneys in Bethlehem and the
respondent were all present at the Magistrate’s Court in Reitz.
Niemann requested an extension
of the rule
nisi
in respect of
the protection order and a postponement of the application to 21
January 2021 in order for the appellant to respond
to the allegations
in that application.  Such an order was made.  Not a word
was said by Niemann about the spoliation application
that the
appellant was on the verge of moving in the court
a quo
that
very same morning.
22.14
Eventually and in the respondent’s absence who could not have the
faintest idea what was about
to happen, the court
a
quo
was convinced to grant an
interim
spoliation order with return date 21 January 2021 in respect of the
Whala route.  There is a brief reference to the protection
order
granted against the appellant in the founding affidavit, but the
court
a
quo
should
have noticed that the same parties are embroiled in the litigation
relating to the harassment matter, bearing in mind the small
town and
that just over a hundred civil applications had been issued by that
time of the year.
[11]
25.15
It is clear that the letter of demand dated 29 November 2020 attached
to the founding affidavit
in the first spoliation application was
sent to an email address that previously belonged to the respondent,
but contrary to what
was alleged in the founding affidavit, this
email was never read.  Coincidentally, Niemann asked the
respondent’s email address
when the harassment application was
postponed.  He was provided with the same email address that is
reflected in the harassment
application.  Niemann preferred not
to send the letter of demand to that email address, although at the
relevant time this information
would have been known to him and his
client.
22.16
On 11 December 2020 appellant brought a second spoliation application
under application number
132/2020.  This time it was about the
locking of the entrance gate from the S74 to
Gedagtenis,
the Boomplaats route.  Again, as in the previous case, an urgent
ex parte
application
was brought and as in the previous case, a rule
nisi
was issued with return date 21 January 2021.
22.17
On 10 December 2020, the day before the second spoliation application
was brought, there was a
telephonic conversation between Niemann’s
secretary, Me AA Cronje and the respondent.  The contents of the
conversation are
in dispute and will be dealt with under the next
heading, save to refer at this stage to the following note made by
the secretary
pertaining to this telephonic conversation:
“
Sy het ook
bevestig dat die hekke by Plaas Boomplaats nie gesluit is nie.”
[12]
(In
English: She confirmed that the gates on the farm Boomplaats were not
locked.)
22.18
On 21 January 2021 the return dates of the rules
nisi
in the
three applications were extended and the applications postponed to 11
March 2021, where after the applications were again
postponed to 29
April 2021.  The postponements allowed the parties an
opportunity to file comprehensive affidavits which really
caused
unnecessary reading, bearing in mind the less than complex issues
that had risen initially.  They also filed extensive
heads of
argument in respect of all disputes raised in the applications as
submitted by Ms Larney.
22.19
On 29 April 2021 all three applications were heard and on 13 May 2021
orders were granted.
The court
a quo
’s written reasons
in all three matters were made available to the parties on 18 June
2021.
22.20
The court
a quo
gave additional reasons in the harassment
application upon receipt of the notice of appeal, specifically
pointing out that the appellant
never requested a referral of the
matter for oral evidence and furthermore, that the appellant failed
to raise a real, genuine or
bona fide
dispute in his answering
affidavit.
VII
FACTS IN DISPUTE
[23]
The following facts are in dispute:
23.1
The factual allegations of the respondent in support of the
protection order.
23.2
Even if the allegations in the harassment application are accepted to
be correct,
it is still disputed that any allegation on its own, or
the allegations cumulatively fall within the definition of
harassment.
23.3
Whether the court
a quo
could have amended the protection
order to limit the appellant’s right to use the Whala and
Boomplaats routes to pass through the
relevant farms and/or to make
use of the entrances leading to Iowa and Gedagtenis, bearing in mind
that the appellant was in peaceful
and undisturbed possession of the
access routes at all relevant times (an aspect to a certain extent
placed in dispute by the respondent
as will be shown later).
23.4
Whether the appellant could rely on any right in the form of a
servitude, or
any other right of way in order to make use of the
access routes to his farms.
23.5
Whether the spoliation applications were urgent, bearing in mind
available alternative
routes.
23.6
Whether or not the appellant failed to act with the utmost good faith
in line
with the
locus
classicus,
Schlesinger
v Schlesinger
.
[13]
23.7
Whether or not the second application was necessary, bearing in mind
the respondent’s
version that the gates on the Boomplaats were
open, allowing the appellant access to Gedagtenis through the
Boomplaats route prior
to the application being moved for on 11
December 2020.
23.8
Whether the orders discharging the rules
nisi
in the spoliation applications are appealable, bearing in mind the
judgment of the Namibian Supreme Court in
Beukes
v Kubitzausboerdery (Pty) Ltd
[14]
insofar
as the
rules
nisi
were allegedly dismissed based on lack of urgency.
23.9
There are factual disputes pertaining to the removal of the gates,
the erection
of fences and the locking of the gates, but as indicated
above, the undisputed facts clearly indicate that the appellant had
proven
the two requisites of the mandament van spolie in respect of
at least the first application.  The respondent’s version that
the Whala and Boomplaats routes are not servitude routes or that the
appellant did not obtain a right to use the routes based on
prescription is misplaced.
[15]
There is a dispute in respect of the second application insofar as
the respondent stated that the particular gates on the Boomplaats
route were opened to the knowledge of the attorney’s secretary
before the application served before the court
a
quo
.
VIII
LEGAL PRINCIPLES AND STATUTORY PROVISIONS PERTAINING TO HARASSMENT
[24]
Insofar as the respondent brought her application for protection in
terms of s 2(1) of the Protection
of Harassment Act and an order was
made by the court
a quo
in accordance with s 3 thereof, it is apposite to quote the following
definitions of harassment, harm and related person:
[16]
Section
1 of the Act defines these as follows:
“’
harassment’
means directly or indirectly engaging in conduct that respondent
knows or ought to know –
(a)
Causes harm or
inspires the reasonable belief that harm may be caused to the
complainant or a related person by unreasonably –
(i)
Following, watching,
pursuing or accosting of the complainant or a related person, or
loitering outside of or near the building or
place where the
complainant or a related person resides, works, carries on business,
studies or happens to be;
(ii)
Engaging in verbal,
electronic or any other communication aimed at the complainant or a
related person, by any means, whether or not
conversation ensues; or
(iii)
Sending, delivering
or causing the delivery of letters, telegrams, packages, facsimiles,
electronic mail or other objects to the complainant
or a related
person or leaving them where they will be found by, given to, or
brought to the attention of, the complainant or a related
person; or
(b)
Amounts to sexual
harassment of the complainant or a related person.”
Harm
is defined as follows
:
“’
harm’
means any mental, psychological, physical or economic harm”.
Related
person is defined as follows:
“’
related
person’ means any member of the family or household of a
complainant, or any other person in a close relationship to the
complainant”
[25]
The only reported judgment that could be found in respect of
harassment is that of
Mnyandu
v Padayachi
[17]
where the court made the following observation:
[18]
“
Based
on its examination of international legislation, the SALRC
recommended that the recurrent element of the offence should be
incorporated
in the definition of harassment'. The definition in the
Act states that harassment‘ is constituted by directly or
indirectly engaging
in conduct...'. However although the definition
does not refer to a course of conduct' in my view the conduct engaged
in must necessarily
either have a repetitive element which makes it
oppressive and unreasonable, thereby tormenting or inculcating
serious fear or distress
in the victim. Alternatively the conduct
must be of such an overwhelmingly oppressive nature that a single act
has the same consequences,
as in the case of a single protracted
incident when the victim is physically stalked.”
[26]     In
De Buys Scott and
others v Scott
[19]
this court dealt with a feud between brothers who were also
neighbours.  The court emphasised the notion of neighbourliness
and the interests of each neighbour within small neighbourhood
communities.  The observation of the court is relevant and
directly
in point, but it must be considered whether the proven facts
in casu
are sufficient in order to dismiss the appeal.
IX
EVALUATION OF THE EVIDENCE IN RESPECT OF HARASSMENT
[27]
I prefer to deal with the evidence in respect of harassment
separately although the issues between the parties
are intertwined.
The repetitive versions in the various applications made it extremely
difficult to adjudicate the applications.
When dealing
with harassment, it is clear that the parties had strong words for
each other and even related parties in the case of
the respondent.
No doubt, irritation and annoyance were the order of the day between
the two elderly siblings.  The animosity
became fiercer over
time.  However, it appears as if the real drama started when the
respondent unilaterally decided to remove
the gates as fully set out
in the first spoliation application.  It is also evident that
the version of the appellant in this
regard pertaining to spoliation
was essentially conceded by the respondent to be correct.
Annexure “FA14”,
[20]
an
extract of WhatsApp exchanges between the appellant and the
respondent, is indicative of the fact that even the respondent was
prepared to use offensive language towards the appellant.
[28]
In considering the appeal I appreciate that one specific deed may
constitute harassment and although
one or more actions could not be
considered as harassment on their own, the totality of all the
accepted actions by one person directed
at another or related persons
may be such that a finding of harassment can be made.
Therefore, the cumulative effect of all
acts of alleged harassment
must always be considered in order to come to a proper conclusion.
[29]
It must be borne in mind that the appellant’s version could not
merely be rejected as false and far-fetched
and/or so improbable that
it could not be believed and therefore rejected.  The Plascon
Evans rule finds application in these
matters as well.
[30]
The court
a quo
held that the appellant was guilty of relying
on bare denials.  I am of the view that this is not the case.
He responded
to each allegation.  No doubt, the respondent’s
legal team, instructed after the rule
nisi
was extended and
the filing of the appellant’s initial answering affidavit, accepted
that a proper response was presented by the
appellant which might
have caused the discharge of the
interim
order.  I accept
that in the nature of these kinds of applications an applicant, who
is mostly not assisted by a legal representative
at the time, is
required to provide nothing more than a cryptic version on the form
provided.  Ultimately, the respondent filed
her comprehensive
60-page supplementary affidavit and unnecessarily attached thereto
documents such as the Deed of Trust and Deed
of Transfer which are
irrelevant to the dispute and could never have been in contention.
Again, as he did in his initial answering
affidavit, the
appellant respondent to the various allegations.  His testimony
could not be held to be mere bare denials. It
is really unnecessary
to deal with all allegations and the responses thereto, but some of
the alleged acts of harassment and the
responses thereto will be
mentioned to make the point that the court
a quo
was wrong in
concluding that the appellant was relying on bare denials.
[31]
The use of the Boomplaats route to Gedagtenis by the
appellant’s tenant, Mr De Jager, is fully explained
and there is no
reason to reject it.
[21]
The allegation of objectionable behaviour which may have an influence
on the respondent’s tenant, Mr Fivaz, must be
seen in light of the
fact that the appellant is entitled to make use of the particular
route mentioned in Fivaz’ affidavit.
Furthermore, the
appellant responded appropriately to Fivaz’ affidavit.
[22]
The alleged
“
game
of chicken”
incident
occurred as long ago as June 2018.  However, the appellant dealt
with the occasion and relevant circumstances in detail
and again, his
version cannot be rejected.
[23]
The incident with Mr Pretorius and the farm workers were also dealt
with in detail.
[24]
The
respondent’s removal of the gates – the gate in the fence between
Whala and Iowa as well as the double gates providing
entrance to
Whala – the Wahla route - at the end of September 2020
[25]
started a series of incidents.  The respondent complained that
this left her
emotionally
drained
,
[26]
but she was the person that took the law into her own hands by
despoiling the appellant.  The appellant dealt with the issue
from his perspective and also admitted the WhatsApp messages between
them.  The parties were not exchanging niceties, but in
light of
the history between them and the respondent’s unlawful closing of
the Whala route, that could have been expected.
[32]
Even insofar as it could be found that the appellant used profane and
insulting language, it needs to be pointed
out that the definition of
harassment refers to the unreasonable engagement of verbal,
electronic or other communication that causes
harm or inspires the
reasonable belief that harm may be caused.  I do not agree that
the communication was unreasonable in the
circumstances and even the
admitted WhatsApp messages, which the court
a quo
considered
to be a threat, are not viewed in the same light. It merely serves as
confirmation that the respondent’s attempts to
prevent access to
the Wahla route would be countered.
[33]    I
am satisfied that the respondent failed to make out a case and in my
view the
interim
order should have been discharged, each party
to pay his/her own costs.  The attitude of the appellant
throughout the particular
period cannot be condoned and therefore, I
would uphold the appeal, but also order each party to pay his/her own
costs of the appeal.
X
LEGAL PRINCIPLES PERTAINING TO MANDAMENT VAN SPOLIE
[34]
I dealt with the requirements in order to succeed with the mandament
van spolie quite recently in
Kymdell
v Kymdell
[27]
as follows:
“
[6]
The requirements to be proven by an applicant relying on the
mandament van spolie are well-known.
All
that the despoiled person needs to prove is that—
(a)
he/she
was in peaceful and undisturbed possession of the property; and
(b)
he/she
was deprived of possession unlawfully, ie forcibly or wrongfully
against his consent.
[7]
The remedy was quite recently discussed
in
Ngqukumba
v Minister of Safety and Security and Others.
[2]
The
Constitutional court held that
:
“
The
essence of the
mandament
van spolie
is
the
restoration
before
all else of unlawfully deprived possession to
the
possessor
.
It finds expression in the maxim
spoliatus
ante omnia restituendus est
(the
despoiled
person must be restored to possession
before
all else)
.
The
spoliation order is meant to prevent the taking of possession
otherwise than in accordance with the law.
Its
underlying philosophy is that no one should resort to self-help to
obtain or regain possession. The main purpose of the
mandament
van spolie
is
to preserve public order by restraining persons from taking the law
into their own hands and by inducing them to follow due
process.”
(Emphasis
added).”
[8]
A co-possessor such as a spouse or partner, or even a person entitled
to partial possession
only, is entitled to rely on the
mandament
van spolie
in the event of an infringement of
his or her rights.
[9]
The
mandament van spolie
is an extraordinary and robust remedy.  Few defences may be
raised and once an applicant has discharged the onus to prove the
aforesaid requisites and none of the recognized defences have been
raised with success, the court is bound to grant relief,
notwithstanding
the merits of the dispute between the parties.
It is also a speedy remedy and restoration should take place
immediately or â€œdadelik.”
I shall later show that this
principle does not entail that each and every spoliation application
shall automatically be deemed urgent,
or even extremely urgent,
requiring a flouting of the Uniform Rules of Court.”
[35]
It is important to keep in mind that the rights of the parties and
the lawfulness or not of the applicant’s
possession are not
considered by the court during a spoliation application.
[28]
Therefore the applicant does not even have to show that he was
entitled to be in possession, but that he was in
de
facto
possession at the time of being despoiled.
[29]
As often stated, even a thief may be despoiled.
[36]
In
Willowvale
Estates CC and Another v Bryanmore Estates Ltd
[30]
it was again recognised that the right to use a road or route is
included in the concept of possession and that the locking of gates
across such road or route constitutes spoliation.
XI
APPEALABILITY OF THE DISMISSAL OF THE SPOLIATION APPLICATIONS
[37]
We were referred by Ms Larney to
Beukes v Kubitzausboerdery (Pty)
Ltd
, the judgment of the Supreme Court of Namibia mentioned
above.  In this case the court had to determine whether urgency
as an
issue was appealable.  In that case the appeal was struck
from the roll with costs insofar as the court held on appeal that
the
court
a quo
should have discharged the rule
nisi
and
struck the application from the roll instead of dismissing it.
The judgment must be seen in context.  I deem it necessary
to
quote the relevant paragraphs:
“
[31]
The decision to discharge the rule and dismiss the application is not
a final one as the matter can always
be revisited in the normal
course.  In fact it is not even a judgment or order. It is a
ruling and thus not appealable. The
only criticism of the order is
that it should have discharged the rule and struck the application
from the roll instead of dismissing
it. This however is a question of
semantics as
it is clear from the ruling that
the merits were not considered in this context.
[32]
…….
[33]
…….
[34]
The
distinction between the
New
Era Investment
case
and the one under discussion is self-evident. Firstly, in the
New
Era Investment
case,
the judge did not deal with the urgency issue separately and upfront
– he even suggested that he had not dealt with
it at all. In the
present matter, the judge
a
quo
dealt
with it expressly upfront and ruled against the applicants on this
score and gave the resultant order before moving on
to the merits.
Secondly, as is evident from the
New
Era Investment
’s
judgment, the judge
a
quo
did
consider the fact that spoliation applications are in their nature
urgent and it was implicit from the fact that the merits
were dealt
with that the matter was accepted as being urgent.
In the present matter, there is no need to seek an implicit finding
as the judge
a
quo
expressly
dealt with the issue of urgency.”
(emphasis
added)
[38]
The
Beukes
judgment is distinguishable from the facts
in
casu
insofar
as the judge in the court
a
quo
discharged the rule
nisi
and
dismissed the application due to lack or urgency without considering
the merits.  In any event and insofar as there is no
distinction, we do not have to follow this judgment as we are bound
by the
stare
decisis
principle to follow the judgment of our own Supreme Court of Appeal
in
Commissioner,
South African Revenue Service v Hawker Aviation Partnership and
Others
.
[31]
No doubt, if an application lacks the requisite degree of urgency,
the court can for that reason decline to exercise its powers
to
entertain the alleged urgent application.  In such a case the
matter is not properly enrolled and the proper order is to
strike the
application from the roll which will enable the applicant to set the
matter down again on proper notice and compliance
with the rules.
However, once detailed affidavits have been filed dealing with the
merits of the matter and especially where
the rule
nisi
was extended on occasion, and when detailed arguments have been
submitted in respect of the merits and considered by the court, it
would be inappropriate to dismiss the application based on lack of
urgency.  Ms Larney made the point in sub-paragraphs 3. 1
to 3.4
of
her
heads of argument in the spoliation appeals that the court
a
quo
heard full argument in all three applications, that the parties filed
comprehensive heads of argument in all three matters and that
the
court
a
quo
was
also addressed on urgency and authorities pertaining to
ex
parte
applications as raised in the respondent’s answering affidavit.
Why then, could the rules
nisi
be
discharged due to lack of urgency after all the months that had come
and gone and in view of full argument on the merits?
I find
this inappropriate.
[39]
Ms Larney also relied on certain passages in
Vena
v Vena and Another NO
[32]
in
support of her submissions.  I do not agree.  The judgment
was penned by a single judge having to consider an application
for
leave to appeal.  He distinguished the facts in the matter at
hand from the unambiguous judgment of Cameron JA (as he then
was),
writing for a unanimous Court of Appeal. Dealing with the main
application, the learned judge dismissed it on two bases,
[33]
the first being lack of urgency when he ruled that the application
should be dismissed without reference to the merits.  Then
he
decided to consider the merits and this was then the second basis for
the conclusion to dismiss the application.  Insofar
as it was
asserted in
Vena
that the dismissal of a claim in application proceedings when the
merits have not been adjudicated is synonymous with a ruling of
absolution from the instance, I beg to differ. However, I prefer not
to get into any argument as it may be nothing more than an issue
of
semantics and the facts
in
casu
are in any event totally different from those in
Vena
.
I shall deal with the court
a
quo
’s
reasons later herein, but need to point out the following in respect
of the
Vena
judgment.  Notwithstanding the learned judge’s viewpoint, he
considered the matter in the following words:
[34]
“
[9]
Be that as it may.  Mr Huisamen is, in my opinion, correct in
his submission that the
statement in
Commissioner,
South African Revenue Services v Hawker Air Services (Pty) Ltd
gives a basis for an argument, which might reasonably be accepted on
appeal, that it was not proper in this case to dismiss the action
solely for want of proof of urgency.  This conclusion would, in
the ordinary course, justify leave to appeal.  It is, however,
superfluous to give leave to appeal on the urgency point, which is
procedural, if there is no reasonable prospect of the appeal
succeeding
on its merits.”
XII
THE DUTY OF THE APPLICANT IN
EX PARTE
APPLICATIONS
[40]
In
Trakman
NO v Livshitz and others
[35]
the court reiterated, relying on
Estate
Logie v Priest
and
Schlesinger
v Schlesinger
,
[36]
that it
is
trite law that in an
ex
parte
application
the utmost good faith must be observed by an applicant, failing which
the court may in the exercise of its discretion
dismiss the
application on that ground alone.
I
do not know whether this issue was fully argued in the court
a
quo,
but
I do not find any reference thereto in the written reasons.  It
was not held that the appellant’s conduct amounted to an
abuse of
the process of the court.  Fact of the matter is that we may
consider non-compliance at this stage, even if only to
deal with the
award of costs to be made.
[41]
Recently the Supreme Court of Appeal was severe in its criticism of a
Minister’s non-disclosure in
winding-up proceedings that were
brought
ex
parte
and on alleged urgency. The court dealt with the issue as follows in
Recycling
and Economic Development Initiative of South Africa NPC v Minister Of
Environmental Affairs
and
in order to serve as guidance to the legal representatives of the
parties and the court
a
quo
I quote extensive:
[37]
“
Disclosure
— legal principles
[45]
The principle of disclosure in ex parte proceedings is clear. In
NDPP
v Basson
this court said:
'Where
an order is sought
ex
parte
it
is well established that the utmost good faith must be observed. All
material facts must be disclosed which might influence
a court in
coming to its decision, and the withholding or suppression of
material facts, by itself, entitles a court to set aside
an order,
even if the non-disclosure or suppression was not wilful or
mala
fide (Schlesinger v Schlesinger
1979
(4) SA 342 (W)
at
348E – 349B).'
[46]
The duty of utmost good faith, and in particular the duty of full and
fair disclosure, is imposed because orders granted without
notice to
affected parties are a departure from a fundamental principle of the
administration of justice, namely,
audi alteram partem
.
The law sometimes allows a departure from this principle in the
interests of justice but in those exceptional circumstances
the ex
parte applicant assumes a heavy responsibility to neutralise the
prejudice the affected party suffers by his or her absence.
[47]
The applicant must thus be scrupulously fair in presenting her
own case. She must also speak for the absent party by disclosing
all relevant facts she knows or reasonably expects the absent party
would want placed before the court. The applicant must disclose
and
deal fairly with any defences of which she is aware or which she may
reasonably anticipate. She must disclose all relevant adverse
material that the absent respondent might have put up in opposition
to the order
. She must also exercise due care and make such
enquiries and conduct such investigations as are reasonable in the
circumstances
before seeking ex parte relief. She may not refrain
from disclosing matter asserted by the absent party because she
believes it to
be untrue. And even where the ex parte applicant has
endeavoured in good faith to discharge her duty, she will be
held to have
fallen short if the court finds that matter she regarded
as irrelevant was sufficiently material to require disclosure. The
test
is objective.
[49] The
ex parte litigant should not be guided by any notion of doing the
bare minimum. She should not make disclosure in a
way calculated to
deflect the judge's attention from the force and substance of the
absent respondent's known or likely stance on
the matters at issue.
Generally, this will require disclosure in the body of the
affidavit. The judge who hears an ex parte
application,
particularly if urgent and voluminous, is rarely able to study the
papers at length and cannot be expected to trawl
through annexures in
order to find material favouring the absent party.
[50]
In regard to the court's discretion as to whether to set aside an ex
parte order because of non-disclosure, Le Roux J said in
Schlesinger
v Schlesinger
:
'(U)nless
there are very cogent practical reasons why an order should not be
rescinded, the Court will always frown on an order obtained
ex
parte
on incomplete information and will set it aside even
if relief could be obtained on a subsequent application by the same
applicant.'
[52] As
to the factors that are relevant in the court's exercise of its
discretion whether or not to set aside an ex parte order
on grounds
of non-disclosure, in
NDPP v Phillips
this court said
that regard must be had to the extent of the non-disclosure, the
question whether the judge hearing the ex parte
application might
have been influenced by proper disclosure, the reasons for
non-disclosure and the consequences of setting
the provisional
order aside.
Ex
parte
proceedings
[80]
It is a
fundamental principle of the administration of justice that relief
should not be granted against a person without allowing
such person
to be heard. Very rarely is a case so urgent that there is no time to
give notice
. In
other cases,
there
may be a reasonable and substantiated apprehension that giving notice
would defeat the applicant's legitimate purpose in seeking
relief,
for example, because the respondent would dispose of property or
evidence that the applicant wishes to claim or have preserved.
In
cases of this kind a court may be willing to dispense with the need
to give notice but this power should be exercised with great
caution
and only in exceptional circumstances….. â€œ
(emphasis
added and footnotes omitted)
The
court dismissed a submission by the Minister’s counsel that
“
the
ex parte bird has flown”,
that
no purpose would be served by discharging the provisional order on
this ground and that a punitive costs order might be more
appropriate. It held that even if the applicant’s disclosure cannot
be faulted, her inappropriate use of
ex
parte
proceedings should attract the same disciplinary jurisdiction in the
following words:
[38]
The
ex parte litigant's duty of utmost good faith requires not only
complete and fair disclosure; it imposes a more fundamental
obligation to give notice to the other side unless, objectively, the
absence of notice is justified.”
XIII
EVALUATION OF THE EVIDENCE AND SUBMISSIONS OF THE PARTIES IN RESPECT
OF THE SPOLIATION APPEALS
[42]
I have no doubt that the appellant deliberately waited to bring the
first spoliation application until
after extension of the return date
of the
interim
protection order.
[39]
There
was no reason why the relatively short answering affidavit in the
harassment application could not have been filed before
the return
date of 3 December 2020, but obviously, the appellant and his legal
representative tried to obtain a tactical advantage.
[43]
The issue of urgency has really become moot at the time when the
court
a quo
decided to entertain the two spoliation
applications on 3 and 11 December 2020 respectively.  In fact,
the orders issued read
exactly the same and I quote:
“
1.
The Court condones the non-compliance with the Rules of court and
considers the matter as urgent.”
[40]
[44]
The court
a quo
could have refused to hear the two
applications and struck them from the roll in order to force the
appellant to bring the applications
strictly in terms of rule 55 of
the Magistrate’s Court Rules, but it did not act accordingly.
Consequently, the rules
nisi
were extended on more than
occasion and the parties were allowed ample opportunity to deal
comprehensively with the merits, which
they did.  Thereafter,
the matters were argued fully and the court
a quo
gave written
reasons as to why the rules
nisi
in the spoliation
applications were discharged, dealing specifically with the merits of
the applications.
[45]
The court
a
quo
incorrectly held that the first requirement to succeed with
spoliation is urgency and that
“
the
second requirement is whether the Applicant had undisturbed
possession, in this case use, of the right so spoliated, thus the
right of way.”
[41]
Bearing in
mind the authorities quoted above, the court
a
quo
misunderstood what was required.
[46]
In paragraph 5 of the written reasons in both applications the court
a quo
dealt extensively with the so-called second requirement,
to wit the real merits of the mandament van spolie and considered
inter alia
whether a servitude was created and or whether the
appellant had a right of way and/or whether there was an agreement
and/or a court
order allowing the appellant access to the two routes
and/or whether he could rely on prescription in order to obtain a
right of
way.  These arguments pertaining to a right of way
instead of dealing with the two requisites for obtaining relief in
terms
of the mandament van spolie were clearly not called for, but is
indicative of the fact that the court
a quo
dealt with the
merits of the applications in detail.
[47]
Only, in order to put a final nail in the coffin of the appellant and
basically as an afterthought, the
court
a
quo
dealt with urgency in paragraph 6 of the written reasons.
[42]
If the court
a
quo
believed that the applications were not urgent, she should never have
granted the
interim
orders in the first place.
[48]
Clearly the court
a
quo
would not be in a possession to strike the two spoliation
applications from the roll on the final extended return dates thereof
as
this would have made a mockery of the process.  Therefore, it
was decided to discharge the rules
nisi
.
I have indicated above that this court is not bound by the judgment
of the Namibian Supreme Court or the judgment in
Vena
v Vena supra
.
As mentioned, the Supreme Court of Appeal has dealt with this matter
in
Commissioner,
South African Revenue Service v Hawker Aviation Partnership and
Others
Hawker
supra
and
based on the
stare
decisis
principle we are bound to follow it.  I need to emphasise that
it would be absurd to find that the appellant did not have a
right of
appeal.  If this was indeed the law, the appellant would then be
forced to start spoliation proceedings again, fifteen
months after
the event, whilst it is trite that the possession of the appellant as
the despoiled person must be restored before all
else, that no one
should resort to self-help and that restoration should take place
immediately.
[43]
[49]   The
appellant has proven both requirements of the mandament van spolie in
respect of the first spoliation application
number 125/2020 (appeal
A85/2021) and the only issue that may be in contention is costs,
bearing in mind the attitude of the appellant
and his attorney as
mentioned above.  The question is whether the process was
abused.  I shall return to that later.
The appeal in
respect of the second application number 132/2020 (appeal A86/2021)
is more contentious.  No doubt, the respondent
did in fact lock
the gates in order to prevent the appellant access to the Boomplaats
route through the farm Boomplaats to Gedagtenis.
It is her case
that when she received the email, she instructed her employee to
unlock the gates and this was also communicated to
Niemann’s
secretary.  Therefore, by the time that the appellant moved the
second application on 11 December 2020, the gates
were unlocked which
would allow the appellant access to Gedagtenis.  The question to
be answered is whether the version of the
respondent should be
accepted and if so, how the order should have read.  If
respondent’s version is accepted, the appellant
could at best be
entitled to some of his costs.  But the respondent was not given
an opportunity to be heard on 11 December
2020.  With the
benefit of hindsight, this court is in a position to revisit the
orders granted.  In my view there is no
reason not to accept the
version of the respondent if the trite principles enunciated in
inter
alia
Plascon
Evans
are
applied.  The court
a
quo
was correct in discharging the rule
nisi
based on this defence as dealt with in paragraphs 6.10, 6.11 and 7.2
of reasons.
[44]
[50]
I must mention that I am of the view that the appellant and his
attorney, Niemann’s approach to the
litigation, both on 3 and 11
December 2020 is deplorable.  Well-knowing that the letter of
demand of 29 November 2020 was not
read, but particularly that the
spoliation application was on the verge of being brought
ex parte
later that morning, the respondent was not alerted to this.
Consequently, she left the Magistrate’s Court under the impression
that the appellant would in due course respond to her allegations in
the harassment application.  It is correctly pointed out
on her
behalf that if she was alerted to the intended spoliation application
on 3 December 2020 and that the orders obtained in her
protection
order did not go as far as she meant them to be, she might have
requested the court
a quo
on that date to reconsider either
whether to grant the spoliation order, or to extend the terms of the
protection order.  The
appellant should be penalised for the
manner in which the litigation was undertaken.  He should not be
granted any costs, neither
in this court, nor in the court
a quo
.
I find support for my conclusion in respect of costs in the judgments
referred to above.
[51]
Based on the acceptable evidence, the court
a quo
was correct
to discharge the rule
nisi
in application number 132/2020
(appeal A86/2021) insofar as the merits favoured the respondent.
There is no reason to interfere
with the costs order granted by the
court
a quo
. Therefore, this appeal stands to be dismissed
with costs.  There was also no acceptable reason for launching
this application
ex parte
and on an urgent basis.
[52]
The first spoliation application is somewhat on a different footing.
The respondent’s subjective
belief is no defence.  She clearly
spoliated the appellant who has proven the two requisites in order to
succeed.  This
appeal, appeal A85/2021, should succeed, but to
show the court’s disapproval of the manner in which the appellant
and his attorney
side-stepped the respondent in moving an urgent
ex
parte
application in the particular circumstances, I am of the
view that in exercising my discretion the appellant should be
deprived of
all his costs in both courts.  Therefore, an order
should be made that each party shall pay their own costs in respect
of this
appeal as well as in the court
a quo.
XIV
CONCLUSION
[53]
The papers are unnecessarily
[RA5]
voluminous.
Bearing in mind the simple application brought – the filling out of
the required form by an unrepresented litigant
- the appellant could
have dealt with the allegations suitably within the 20 days he was
afforded from receipt of the order on 13
November 2020
[45]
till 3 December 2020.  Instead, the proverbial meal was made of
the disputes between the parties and to an extent both parties
and
their legal representatives are to be blamed.
[54]
Instead of filing an answering affidavit in the harassment
application as soon as possible after receipt
of the
interim
order - he had nearly three weeks to do so -  the appellant
deemed it fit to play for time whilst all relevant facts were known
to him to enable him to file an answering affidavit.  Instead,
his attorney came up with an excuse to seek a postponement, whilst
it
was anticipated that a spoliation order would be snatched the moment
the respondent, totally unaware of what was to come, left
the court
building.  This caused the harassment application that could be
finalised inexpensively and swiftly, to become –
together with the
other two applications – a litigious nightmare with repeated
allegations and voluminous papers consisting in
total close to 400
pages.  The appellant, and the respondent to a lesser degree, as
well as their legal representatives must
be blamed for the failure to
curtail proceedings and costs.
[55]
I am satisfied that the parties shall bear their own costs in respect
of appeals A84/2021 and A85/2021.
Notwithstanding the
appellant’s success on appeal, I am satisfied that he should be
deprived of his costs.   There is
no reason to deprive the
respondent as the successful party in appeal A86/2021 of her costs
and an appropriate order should be made.
XV
ORDERS
[56]
The following orders are granted:
1.
The appellant’s appeal in appeal A84/2021 (court
a quo
case
number H50/2020) is upheld.
2.
The order of the court
a quo
is rescinded and substituted with
the following:
“
2.1
The rule nisi issued on 11 November 2020 is discharged.
2.2
Each party shall pay his/her own costs.”
3.
Each party shall pay his/her own costs in respect of appeal A84/2021.
4.
The appellant’s appeal in respect of the first spoliation
application, appeal A85/2021 (court
a quo
case number
125/2020) succeeds and the order of the court
a quo
is
rescinded and substituted with the following:
“
4.1
The rule nisi issued on 3 December 2020 is confirmed.
4.2
Each party shall pay his/her own costs.”
5.
Each party shall pay his/her own costs in respect of appeal A85/2021.
6.
The appellant’s appeal in appeal A86/2021 (court
a quo
case
number 132/2020) is dismissed with costs.
JP DAFFUE J
I concur
AK
RAMLAL AJ
On
behalf of the Appellant:
Adv J Els
Instructed
by:
Phatshoane Henney Inc
BLOEMFONTEIN
On behalf of the
Respondent:      Adv E Larney
Instructed
by:
Eg Cooper Majiedt Inc
BLOEMFONTEIN
[1]
Act 17
of 2011; the order appears on p 13 of vol 1 of the harassment record
[2]
Para 9
of the judgment, p 378 of vol 2 of the harassment record
[3]
Spoliation
record, p 16
[4]
Ibid
,
pp 173-177
[5]
Para 9
of the written reasons, p183 of the spoliation record
[6]
Judgment
para 5.3 harassment application vol 2 p 373
[7]
Judgment
para 5.17 harassment application vol 2 p 375
[8]
See
paras 63.3 & 63.6 at p 78 of the spoliation record; the
respondent disputes that the routes are servitude routes and/or
that
the appellant is entitled to a right of way; see also para 75 on p
82 in respect of the second application
[9]
See
inter
alia
para 11.2 at p 54 of the spoliation record
[10]
Harassment
record pp 1-13
[11]
Para
6.15 on p 8 of the spoliation record
[12]
Annexure
“RB” at p 168 of the spoliation record
[13]
1979
(4) SA 342 (W)
[14]
2020 JDR 1424 (NmS) &
Vena
v Vena and another NO
2010
(2) SA 248 (ECP)
[15]
See
para 65 & 66, p 80
[16]
Section
1 of the Act
[17]
2017
(1) SA 151 (KZP)
[18]
Ibid
para
68
[19]
(A100/2018)
[2018] ZAFSHC 205
(22 November 2018), paras 5-7
[20]
Volume
1 p191 of the harassment application
[21]
Answering
affidavit para 71, volume 2 on p 257
[22]
Ibid
pp 300 - 302
[23]
Supplementary
affidavit para 43 on pp 56/7 of volume 1 and the response in paras
76 – 80 of the answering affidavit in volume
2 pp 258 - 256
[24]
Answering
affidavit paras 86 – 89 , volume 2 at pp 263/4
[25]
Para
48.4 of the supplementary affidavit, volume 1 p 61
[26]
Para 50.2 of the supplementary affidavit, p 64 and subsequent
averments
[27]
(4711/2020)
[2021] ZAFSHC 13
(3 February 2021) paras 6 – 9.  Several
years ago I stated the following in
Bibbey
N.O v Dohne
(4645/2014)
[2015] ZAFSHC 43
(5 March 2015) in para 21:  â€œ
Die
teenaansoek is ook daarop gemik dat respondent gemagtig word om weer
eens draad te span en ysterpale te plant langs die motorhek
soos wat
hy gedoen het na verlening van die bevel nisi in die eerste
spoliasie-aansoek en welke optrede die tweede spoliasie-aansoek
genoodsaak het. Applikant het in die repliserende beëdigde
verklaring wat ook gedien het as opponerende beëdigde verklaring

tot die teenaansoek insoverre die hof bereid sou wees om die
teenaansoek aan te hoor, dit duidelik gemaak dat die alternatiewe

roete geheel en al onprakties en nie beskikbaar is om gebruik te
word deur groot plaasimplemente nie. Ten einde toegang tot die
plaas
op hierdie wyse te bekom moet van ‘n totaal en al ander openbare
pad aan die noordekant van respondent se plaas in stede
van die
suidekant daarvan gebruik gemaak word. Nog nooit in die sewe jaar
wat applikant die lande op die plaas Holpan bewerk en
dus
ongestoorde besit van die lande gehad het, was van hom verwag om
hierdie pad te gebruik nie. Anders as wat verwag kon word
het
respondent nie hierop geantwoord soos wat hy geregtig was om te doen
nie.”
[28]
Rosenbuch
v Rosenbuch and Another
1975 (1) SA 181
(W)
at
p 183 and
Painter
v Strauss
1951 (3) SA 307
(O) at p 313
[29]
Malan
and Another v Green Valley Farm Portion 7 Holt Hill 434 CC and
Others
2007
(5) SA 114
(E) at 123 E – 124 A; and
Bibbey
N.O v Dohne
at
para 22 quoted
supra
[30]
1990
(3) SA 954
(W) at p 956I – 957E, relying on the well-known
judgment of the Appeal Court in
Nienaber
v Stuckey
1946 AD 1049
and the
dictum
at p 1055 in particular to indicate that exclusive possession to a
particular road is not necessary
[31]
[2006] ZASCA 51
;
2006 (4) SA 292
(SCA) at pp 299 H – 300 A
[32]
2010
(2) SA 248
(ECP) at pp 252 I – 253 B
[33]
Ibid
para 4
[34]
Ibid
para 9
[35]
1995
(1) SA 282
(A) at 288
[36]
1926
AD 312
at 323 and
1979 (4) SA 342
(W) at 348E -350B respectively
[37]
2019
(3) SA 251
(SCA) at paras 45 – 52 & 80
[38]
Ibid
para
84; see also the commentary to Magistrate’s Court rule 55(3) in
Revision Service 27, 2021 Rule - p 55 – 26B, regurgitating
the
above
dicta
and
stating that the subrule limits
ex
parte
applications to those in respect of which the court is satisfied
that the giving of notice would defeat the purpose of the
application
or the degree of urgency is so great that it justifies
dispensing with notice
[39]
Para
80 p 84
[40]
Pages
16
& 40
[41]
See
para 4 pp 174 & 179
[42]
Pages
176
and 181
[43]
See
Ngqukumba
v Minister of Safety and Security and Others
2014 (7) BCLR 788
(CC)
para 10; and Burger v Van Rooyen
1961 (1) SA 159
(O) at 161 G
[44]
Vol 1, p
182
[45]
Ibid
p 90
[RA1]
Correct
spelling: role
[JD2]
[RA3]
From
about June 2018 their relationship became loathsome.
[RA4]
admitted
to digging a trench
[RA5]
unnecessarily