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[2021] ZANCHC 62
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Van Wyk v Daberas Adventures CC (1431/2016) [2021] ZANCHC 62 (19 November 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO.: 1431/2016
Date
heard: 12-11-2020
Date
delivered: 19-11-2021
Reportable: Yes/No
Circulate to Judges:
Yes/No
Circulate to Magistrates:
Yes/No
In
the matter between:
Mariana
Van
Wyk
Respondent/Applicant
And
Daberas
Adventures
CC
Applicant/Respondent
CORAM:
WILLIAMS J:
JUDGMENT
WILLIAMS
J:
1.
This is an application for leave to appeal
against the judgment I handed down in this matter on 13 December
2019. The orders I made
in this matter are in effect:
1.1 The
ejectment of the respondent from the Remainder of Portion 4 of the
farm Daberas No8 (The applicants’
property);
1.2
That the respondent be ordered to remove any structures it had
erected upon the property without doing any
damage to the property;
1.3
That the respondent be ordered to remove the fencing it erected on
the property and to replace the fencing
as it was before the
respondent interfered with it;
1.4
That the respondent comply with the above orders within 7 days, and
1.5
That the respondent pays the costs of the application.
2.
For the sake of convenience I refer to the
parties as in the main application. In its notice of application for
leave to appeal,
the respondent raised some 38 grounds of appeal. The
majority of these grounds are interlinked and it will serve no useful
purpose
to deal with each individually. I will therefore confine this
judgment to those grounds argued by Mr Da Silva for the respondent.
3.
I may commence by stating that those
grounds relating to my findings on the issue of acquisitive
prescription have been abandoned
by the respondent.
4.
The relevant grounds of appeal are as
follows:
4.1 The
applicant approached the court prematurely.
4.1.2 In this regard for
Da Silva has referred to the matter of
Maledu and Others v
Itereleng Bakgatla Mineral Resources (PTY) LTD and another
2019
(1) BCLR 53
(CC), where the Constitutional Court held that the
respondents were under a duty to exhaust the internal processes under
s54 of
the Mineral and Petroleum Resources Development Act 28 of 2002
(the MPRDA) before approaching the High Court for an order of
eviction
and an interdict.
4.1.3 The respondent
sought to draw a parallel between the
Maledu
case and the
matter
in casu
in arguing that s16 and S 29(d) of the Fencing
Act, 31 of 1963 provides an alternative remedy which the applicant
should have exhausted
before approaching this Court for an order of
ejection and an interdict and that a court of appeal could thus
reasonably find that
the application was premature and that this
court had no jurisdiction to adjudicate this matter.
4.1.4 The first problem
with this argument is that s54 of the MPRDA constitutes a mandatory
process which mining right holders and
landowners/lawful occupiers
must comply with in the event of a dispute over access to the land to
which the mining right relates.
4.1.5 S 16 of the Fencing
Act which relates to give and take lines does not provide for the
mandatory referral of disputes for determination
in terms of the
second schedule to the Fencing Act. In fact it states that “
any
such owner
may
claim that the matter shall be
determined as a dispute in accordance with the provisions of the
second schedule.”
(Own underlining)
4.1.6 I have in the main
judgment also dealt with the applicability of s29 (d) of the Fencing
Act in paragraphs 22 to 27 thereof.
Mr Da Silva contends that my
reliance on the authorities cited therein is unfounded. He again
places reliance on
Halgreen v Theron
1927 EDL 417.
In the
Halgreen
matter however it appears that a give and take line
had already been fixed between the previous owner of the applicant’s
property
and that of the respondent. The issues in that matter, which
concerned a review of an award of arbitration in terms of the Fencing
Act, do not apply
in casu
.
4.1.7 The ground that the
court has no jurisdiction to entertain the dispute between the
parties by virtue of a mandatory referral
is unmeritorious for the
further reason that s30 of the Fencing Act specifically states that
Magistrates Courts have jurisdiction
to entertain any civil
proceedings under the Act. Sections 16 and 29(d) of the Act do
therefore not oust the Court’s jurisdiction
to deal with
matters relating to fences under the Act.
4.1.8 For the sake of
completeness I deal briefly with the argument that the dispute
resolution process in Schedule 2 of the Fencing
Act is an alternative
remedy available to the applicant. The requirement that there be no
other suitable or effective remedy applies
to interdicts. In this
regard the alternative remedy should offer similar protection of the
applicant’s interests to that
in the relief sought. It cannot
in my view be said that a referral to the Board for determination of
a give and take line would
offer similar relief.
4.2
That the court erred in not referring the disputes of fact for oral
evidence.
4.2.1 The disputes of
fact which in essence relate to whether or not the erstwhile owners
of the respondent’s property assisted
in erecting and
maintaining the fence and when the fence was erected. Those disputes
are not material to the real issue in this
matter i.e. the defence
raised by the respondent that the fence in dispute constitutes a give
and take line in terms of the Fencing
Act. I have dealt with these
aspects in paragraphs 33 and 34 of the main judgment which also
relate to the further ground of appeal
that I erred in not finding
that a tacit agreement had come into existence between the erstwhile
owners of the property. There
is no merit in these grounds.
4.3
That the court erred in allowing the affidavit of BC Van Wyk and PS
Van Wyk’s letter attached to the
replying affidavit and not
allowing the respondent to file a further affidavit.
4.3.1 In the first place,
the respondent’s Mr Da Silva was given the opportunity to apply
for the admission of a further affidavit,
which he declined. This
failure of his cannot be laid at the court’s door. In the
second place, my refusal to strike out
those portions of the replying
affidavit objected to by the respondent is fully explained in
paragraphs 12 to 21 of the main judgment.
There is no merit in this
ground of appeal.
5.
I am in the circumstances of the view that
there would not be any reasonable prospect of success on appeal in
this matter. I may
in conclusion add that nothing prevents the
respondent to take the initiative to have a determination made in
terms of the Fencing
Act in relation to a give and take line, should
it consider it necessary.
In
the premises, the following order is made:
The
application for leave to appeal is dismissed with costs.
CC
WILLIAMS
JUDGE
For
Applicant/Respondent:
Mr. A Da Silva
Louw
& Da Silva Inc
For
Respondent/Applicant:
Adv. H Rust
Elliot
Maris Wilmans & Hay