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[2018] ZAFSHC 138
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Kaya Katsa CC v Le Cao and Another (3368/2017) [2018] ZAFSHC 138 (12 September 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3368/2017
In
the matter between:
KAYA
KATSA
CC
APPLICANT
(REGISTRATION
NO: 2009/217157/23)
and
HUY
LE
CAO
1
ST
RESPONDENT
THE
REGISTRAR OF DEEDS, BLOEMFONTEIN
2
ND
RESPONDENT
CORAM:
M OPPERMAN, J
HEARD
ON:
2 AUGUST
2018
JUDGEMENT
BY:
M OPPERMAN,
J
DELIVERED
ON:
12
SEPTEMBER 2018
Context
of the case
1.
The motion is for the following orders:
1.1
That it be
declared and ordered that the first respondent is liable for half of
the reasonable expense incurred by the applicant
in the fencing-out
of the right of way.
[1]
1.2
That the
first respondent be ordered to pay costs referred to in prayer one in
the amount of R100 000-00 i.e. half of the expense
incurred by the
applicant in the fencing-out of the right of way referred to in
prayer one to the applicant.
[2]
1.3
That it be
declared and ordered that the first respondent is to co-operate with
the exercise of reasonable control of access to
and over the right of
way referred to in prayer one
[3]
inclusive of
making payment of half of all expenses reasonably incurred in the
control of access to and over such road, immediately
upon incurrence
of the mentioned expenses.
[4]
1.4
That the
first respondent be interdicted and ordered not to utilise his farm
known as Portion 3 of farm Verliesfontein 341, district
Fouriesburg,
in contravention with the agriculture zoning thereof and in
particular that the first respondent be interdicted from
utilising
the mentioned farm for tourism accommodation and/or the conducting of
business within the hospitality and /or accommodation
industry.
[5]
1.5
The first
respondent to be ordered to pay the costs of this application.
[6]
2.
The final
prayers that were placed before court in conclusion of oral argument
by counsel for the applicant was for: “Prayer
one, not two.
Prayer three as qualified by agreement,
[7]
prayer four, and
that costs should follow the result.” The applicant conceded
that prayer two could not have been determined
on application and
requested that this relief be referred for oral evidence. Counsel did
however hint that an allocation of 50/50
liability be made if the
first prayer succeeds and that quantum will be dealt with later. The
judgement will, nevertheless, deal
with the issues in full.
3.
A letter written on instruction by the applicant
to the first respondent speaks volumes and sets the tone of the
dispute. The letter
is dated 6 May 2014 and forms part of the
undisputed evidence before court.
Sir/Madam
FARM VERLIESFONTEIN 341
As you are aware Mr
Eduard du Plessis bought the remaining portions of the farm
Verliesfontein owned by Mr van Blerk. We are assisting
with the
transfer of the property.
Mr Du Plessis requested
us to confirm the following in writing, in order to ensure good
neighbourliness:
1.
Mr
Du Plessis instructed us to do a thorough research of all registered
Servitudes on all portions of the Farm Verliesfontein. The
applicable
Servitudes are:
1.1
Electricity Servitude-and access in favour of
Eskom;
1.2
Water Servitude-and access in favour of the
Republic of South Africa.
From the abovementioned
it is clear that there are no registered Servitudes constituting
right of way.
Although writer is of the opinion that Mr du Plessis
must ensure a right of way to your property it means in practise the
following:
1.3
Mr du Plessis can determine the lay-out of the
road;
1.4
You as the user must maintain the road at your
own cost or maintenance must be shared by the road users;
(Accentuation added)
It
is thus clear that you must adhere to Mr du Plessis` requirements for
the use of the roads, which in the interim and until a
final solution
has been reached,
are:
1.5
All gates must be closed at all times and cannot
be left open;
1.6
If you wish to make use of the road past the
house, prior permission must be obtained from Mr du Plessis, EACH AND
EVERY TIME, you
use the road.
2.
Mr
du Plessis is very concerned to have learned from you that you intend
to build a lodge on the eastern side of your property (undeveloped
side of the gorge). Please note that you are not allowed to build a
lodge in terms of the agricultural zoning of property. Mr du
Plessis
confirmed that he will strongly oppose any application for the
re-zoning of your property to allow for the erection of
a lodge. Mr
du Plessis will not allow any business activities.
However, to ensure
good neighbourliness, Mr Du Plessis is willing to meet with you for
possible exchange of land. Should the negotiations
be successful, Mr
Du Plessis will assist you with a new road, without gates to be
passed, except your own gate. He will further
more have no objection
to a new building or the re-zoning of the exchanged part.
(Accentuation added)
Mr Du Plessis will make
an appointment with writer hereof in order for both parties to engage
in negotiations; if you find the proposal
acceptable.
4.
In other words; if the first respondent is and
was willing to part with his land to the satisfaction of the
applicant, the litigation
in this case would not have happened and
will cease and desist. This is indeed a bizarre basis for litigation.
5.
The reply from the first respondent was the
following:
Dear Sir/Madam
OUR CLIENT: HUY Lè
CAO
Right of way
We act on behalf of Mr
Huy Lè Cao.
Our client Is your
neighbour and has a right of passage across your farm. It is the only
way he can access his own farm. Therefor
guests and
clients
should not be denied access to this passage on the farm.
According to our client
some difficulties have been experienced to exercise the above right.
We trust that you will understand that
it is our client`s common law
right to access this road and that you will allow the same.
(Accentuation added)
If there is a problem
regarding same, our client is willing to round table discussions
about the matter.
6.
The state of affairs deteriorated and
neighbourliness, proposed negotiations and round table discussion
fell to the wayside. “A
final solution” was clearly also
not endeavoured hence the matter
in casu
7.
The structure of the
judgement hereafter will be as follows:
7.1
The declaratory order
in South African Law.
7.2
The factual matrix of
the fencing and access control.
7.3
The Law of Neighbours:
The law on fencing and access control on agriculture land.
7.4
The land usage aspect;
the facts, the law applicable to land usage in the specific area,
final interdicts and dispute of facts.
The
declaratory order
8.
The case of Minister of
Finance v Oakbay Investments (Pty) Ltd and others; Oakbay
Investments (Pty) Ltd and others v Director
of the Financial
Intelligence Centre
[2017]
4 All SA 150
(GP)
explained the law at [51] to [85].
9.
The relief that
applicant seeks is located in
section 21(1)(c)
of the
Superior Courts
Act 10 of 2013
.
It provides:
Persons over whom and
matters in relation to which Divisions have jurisdiction:
21.(1)
A Division has jurisdiction over all persons residing in or
being in, and in relation to all causes arising and all
offences
triable within its area of jurisdiction and all other matters of
which it may according to law take cognizance, and
has the power –
c) in its discretion, and at the instances of any interested person
to enquire into and determine any existing,
future, or contingent
right or obligation, notwithstanding that such person cannot claim
any relief consequential upon the determination.
10.
The exercise of the
court’s jurisdiction in terms of
section 21(1)(c)
follows
a two-legged enquiry; the court must first be satisfied that the
applicant is a person interested in an existing,
future or contingent
right or obligation; and if so, the court must decide whether the
case is a proper one for the exercise of
its discretion.
11.
Factors
courts have considered to determine whether judicial discretion
should be exercised positively or negatively in an application
for
declaratory relief include:
[8]
i.
The existence or
absence of a dispute;
ii.
the utility of the
declaratory relief and whether if granted, it will settle the
question in issue between the parties;
iii.
whether a tangible and
justifiable advantage in relation to the applicant’s position
appears to flow from the grant of the
order sought;
iv.
considerations of
public policy, justice and convenience;
v.
the practical
significance of the order;
and
vi.
the availability of
other remedies.
12.
In this case, the first
stage of the enquiry relates to whether the applicant is authorised
by law to claim the relief? The first
answer to this question lies in
the constitutional principle of legality. As will be shown later the
law is clear. The applicant
is only empowered to act to the extent
that his rights are defined and conferred by the Constitution and/or
by statute. Any conduct
or claim beyond its constitutional and/or
statutory powers violates the principle of legality. The
Fencing
Act 31 of 1963
comes into play at this stage.
13.
A further aspect
in
casu
is the
relationship between the parties. If contractual; the letter of the
contract must be proven and followed. If legislatively
created the
letter of the law must dictate the consequences. The Supreme
Court of Appeal in Bredenkamp and others v Standard
Bank of SA Ltd
2010 (4) SA 468
(SCA)/
[2010]
4 All SA 113
(SCA)
found that the relationship between the bank and its client is
contractual in nature. The bank may terminate the relationship in
its
discretion, on reasonable notice to the client, provided the reasons
for terminating the account do not violate public policy
or
constitutional values. It is imperative that the relationship between
the parties in regard to the right of way be coined.
14.
Ex Parte Nell
1963
(1) SA 754
(A)
settled the law regarding the existence of a live dispute as a
requirement for the granting of a declaratory order by revoking
this
requirement. However, Ex Parte Nell did not render
declaratory orders justified in all cases where there is no live
dispute.
The
need for such an order can pre-eminently arises where the person
concerned wished to arrange his affairs in a manner which could
affect other interested parties and where an uncertain legal position
could be contested by all or one of them. It is more practical,
and
the interests of all are better served, if the legal question can be
laid before a Court even without there being an already
existing
dispute.
15.
Therefore, post Ex
Parte Nell, the absence of a live dispute remains a factor to be
considered where the legal position to
be determined is uncertain. In
Ex Parte Nell the court dealt with “an uncertain legal
position which could be contested”.
The
factual context of the fencing of the right of way and access control
16.
The farm of the first respondent, Verliesfontein,
is blocked-in by the farms of the applicant. The state of affairs was
allowed
in law when the registration of the deeds happened.
17.
It is not clear why The Registrar of Deeds,
Bloemfontein was cited as second respondent in this matter.
18.
The applicant realised the dilemma and the effect
it will have on his property at the time he acquired his property.
His legal representative
advised that the obligation is:
Although
writer is of the opinion that Mr du Plessis must ensure a right of
way to your property it means in practise the following:
19.
Added to
the above: “By means of a verbal agreement, the applicant
granted the first respondent a right of way over the farms
of the
applicant.”
[9]
The
“agreement” was entered into before the venture into
exotic game farming.
20.
There is no prove of this agreement or the
content thereof in the papers before court. This is strongly
indicative of the non-existence
thereof on the facts.
21.
The inference of the absence of an agreement
between the parties is reinforced by the fact that the applicant,
without any notice
or consultation, fenced-out the right of way.
22.
The fencing serves the exotic game farming. First
respondent has no interest or benefit or involvement in it
whatsoever.
23.
The first respondent had no control over the
development but is dependent on the right of way. This places first
respondent in a
vulnerable position. It; substantively so, places
applicant in a position of power. The balance of justice is skewed by
the factual
reality.
24.
The first respondent does not deny the
applicant`s right to farm with exotic game or to erect game fencing,
but merely his liability
for contribution towards this expenditure in
regard to the right of way.
25.
It is the
case for the applicant that first respondent has always financially
contributed towards the maintenance and upkeep of
the route over
which the right of way is exercised by payment of 50% of the actual
expense of such maintenance and upkeep.
[10]
Therefor
this application is not concerned with his obligation to contribute
towards the maintenance and the upkeep of the right
of way.
26.
The first respondent, Huy Lè Cao (Cao) is
a retired Director of a Secondary School in France and the owner of
the said farm
Verliesfontein in the district of Fouriesburg, Free
State. He is a French national with a duly issued residency permit.
27.
Cao has resided on said farm since 15 January
2007. The applicant only came into the picture on 20 April 2014 when
he purchased
the neighbouring farms.
28.
Prior to this the farm was owned by the Enslin
Van Blerk Family Trust IT 1368/2000 (Van Blerk Trust). Van Blerk
farmed with cattle
and crops and the borders were properly and
suitably fenced for that purpose.
29.
The right of way was peacefully managed between
the neighbours. Cao and his family and friends accessed the farm
without any problems
or issues per agreed routes. These routes
existed in 2009 and at the time when the applicant became the
landowner in 2014.
30.
Cao does not claim any transfer of rights from
the agreement with the Van Blerk Trust to the applicant.
31.
The main access road grands a way to one part of
his farm and residence. The second access road is used to gain access
to the other
section of Cao`s farm. Due to challenging topography he
cannot travel by vehicle to the second part and one has to travel
through
the applicant’s land with the second access road. The
main access road does not pass the applicant`s house. The second
access
road was agreed with the previous owner Van Blerk since the
property is divided by a deep gorge. When Cao decided to build his
residence on the Westside, the erstwhile owner improved the access
road to his property crossing the Van Blerk property.
32.
From 2007 until 2013 Van Blerk was authorised by
first respondent to use the second part of the farm for grazing by
his cattle.
There are not any residential facilities on this part of
the farm. It is kept in its natural habitat.
33.
Cao and his spouse live a self-sustainable green
lifestyle. They grow all produce that sustain a simple lifestyle with
the assistance
of their employees. They respect the natural habitat
and they live completely of the grid and welcome social interaction.
34.
His family and increasing network of friends led
to more people of the community visiting as friends. There has not
been a drastic
increase in guests.
35.
It is stated by Cao that:
The applicant is
irritated in that his attempt to isolate us has failed. We are part
of the community. We also have friends from
overseas and adult
children with their family that visit regularly. These family and
friends do not reimburse us for lodging. We
inform visitors
unfamiliar with the area not to stray from the road. Applicant will
not allow us to put up signs directing visitors
to our house. All the
applicants game camps are locked and electrified and entry is
impossible without keys.
36.
As Cao rightly remarked; the letter referred to
above does not portray neighbourly conduct. This court finds it to be
rather repressive.
There is also an undercurrent of ulterior motives.
The rest of the judgement will illuminate this. The claims in itself
in the
action is contrary to law and basic constitutional values.
37.
It is the contention of Cao;
and that is indeed correct, that he fails to see how a court can
resolve the matter and an arbitration
would have been a more
appropriate approach. The dispute is entirely self-made by the
applicant.
38.
The real issue is the costs
pertaining to the reasonable costs of fencing-out the right of way.
39.
The applicant chose to start
the exotic game farming. On the facts first respondent cannot be held
accountable for or requested
to carry any cost therefor. The previous
fences were effective for the right of way.
The
Fencing Act 31 of 1963
again,
becomes applicable.
40.
The applicant cannot define
the declaration they want the court to make. It is a fluid situation
that may end up in a gross abuse
of the “rights”. The
applicant cannot refer to law that would support this absurdity. What
if he starts to farm with
elephants and more specialized fencing must
be erected; will it be claimed that first respondent be liable for
that too?
The bizarre effect will be that
if the court grants the order the applicant and cadres of similar
mindset will be able to make the
same claims in future on the
precedent set in this case in the rest of the Republic of South
Africa. This will cause injustice
en masse
.
The unjustness of the demand strikes clearly.
41.
Even should first respondent
be liable for the upkeep of the right of way it cannot be expected
from him to comply with every whim
and change the newly ventured
farming caused or might cause in future. On the facts, the plaintiff
caused the need for the fence
and he should bear the total cost for
this on the facts.
42.
It is
misleading to say applicant granted Cao access. It already existed
and is it the law on the facts of this case that a right
of way must
be facilitated. The applicant`s legal representative advised him as
such.
[11]
43.
The right of way exists
ex
lege
and not
ex
contractu.
44.
It is a fact that applicant did however, change
the route since then. This caused some new issues for the first
respondent. There
is, nevertheless no gripe in regard to the route in
the case. The first respondent abides by it and the right of the
applicant
to prescribe it.
45.
The applicant contends that because it has a
clear right to control access over its farm, it would be right and
equitable for the
court to order that the first respondent to be
legally liable to co-operate with all reasonable control measures and
to be 50/50
liable for all associated cost.
46.
“
Reasonable control measures” on the
prevailing facts and law have not been defined by the applicant. The
claim is vague and
untenable.
47.
The access was originally controlled with a gate
and locked with a padlock to which the first respondent also had a
key. There was
an event and the sliding gate was apparently removed.
The evidence is vague on this. Suffice to say that there was
conflict.
48.
The applicant, at grave expense, employed guards.
The first respondent denied that the guards were appointed after the
gate incident.
It is also denied that the access control is to
prevent farm attacks and cattle theft. It was rather always
applicants` intention
to employ guards for the protection of the
exotic game investment; not the control to the access of the right of
way.
49.
The first respondent has always been willing to
discuss ways of securing access to the property without infringement
on freedom
of movement and even went as far as to draft a Code of
Conduct which was submitted to the applicant’s attorney in
Clarens.
50.
Already in his opposing
affidavit Cao viewed that a motorized gate secured by a key pad with
a revolving code would be a sensible
solution, but the applicant
refused to engage him. On the day the matter served before the court
the issue was apparently settled
on this basis with reasonable
contribution by the parties for the expenditures.
51.
Although
the applicant has a right to control access to its property, the
applicant cannot employ measures that interfere with the
first
respondents` use and enjoyment of the right of way unlawfully and
unreasonably.
[12]
52.
Again, is it abundantly clear that the applicant
is not vested with the right to make unilateral decisions on the
access control.
53.
The law on the issues is established.
The
Law of Neighbours:
The
law on fencing and access control on agriculture land.
54.
AJ
van der Walt & GJ Pienaar wrote extensively about the
subject.
[13]
55.
The
rights and obligations of owners of agricultural land (described as
holdings
[14]
) with regard to
fences
[15]
between
their properties are regulated by the
Fencing Act
31 of 1963
(Fencing
Act). The right on a right of way creates a
sui
generis
entity on the facts of the case. It does limit the absolute right of
the applicant to this portion of property. The applicant chose
to
erect a physical boundary fence between the two rights. The context
of the facts places the definition of the fencing-out of
the right of
way within the definition of a boundary fence in terms of the Fencing
Act.
56.
The definition of a
boundary fence includes: “any necessary gate” and will
correlate to access or entry control.
57.
The Act distinguishes
between proclaimed areas where contributions to the cost of fencing
are obligatory, and unproclaimed areas
where contributions are not
obligatory, unless the fence is rendered of beneficial use to the
neighbour because of said neighbour`s
use of his or her land. Once an
area has been proclaimed, all owners in that area are compelled to
contribute to the cost of fencing
in accordance with the procedures
set out in the Act.
58.
Owners are liable to
contribute to the cost of repair of a boundary fence on the same
basis that they are liable to contribute to
the cost of its erection.
Section 10 states:
10 Repair of boundary
fences
(1) An owner shall be
liable for the cost of repairs to any boundary fence in respect of
his holding to the extent to which he would
under this Act be liable
to contribute to the cost of such fence.
(2) An
owner may serve upon the owner of the adjoining holding separated by
such fence a notice in writing requiring him to assist,
within a
period of one week, in repairing such fence and, if the owner of the
adjoining holding fails to comply with the notice,
may repair such
fence and recover from that owner the proportion of the cost
59.
The applicant did not
follow the process in sub-section 2 above.
60.
Owners are entitled to
replace an existing fence with a superior one, but in that case
adjoining owners are not obliged to contribute
to the higher cost,
unless he takes actions that render the superior fence 'of beneficial
use' to him. First respondent did not
alter the use of the right of
way. The right of way for the first respondent will be the same with
or without a fence. Section
11 states that:
11 Alteration of boundary
fences
An
owner may at any time alter any boundary fence in respect of his
holding so as to make it a fence of a superior type; Provided
that
the owner of the adjoining holding separated by such fence shall not
be liable to contribute to the alteration unless and
until he derives
beneficial use from the type of the fence as altered.
61.
This principle that
owners who are not generally obliged to contribute will become
obliged to contribute when their use of the land
implies benefiting
from the fence applies generally throughout the Act. First respondent
does not benefit from the type of fence
or a fence at all.
62.
The extent of
contributions to be determined by agreement or in terms of the
procedures laid down in the Act. Section 5 states that:
Boundary fencing in an
area where contributions are not obligatory
If the
owner of a holding situated in an area in which contributions are not
obligatory, has lawfully erected a boundary fence in
respect of that
holding, and the owner of an adjoining holding adopts means whereby
that fence is rendered of beneficial use to
himself, either owner
may, in default of agreement, claim that the value of the fence to
each owner (regard being had to the extent
to which such use is being
or has been made) be determined in accordance with the provisions of
the Second Schedule, and, upon
the value being so determined, it
shall be obligatory on the owner who has made beneficial use of the
fence to contribute to the
cost of the fence in accordance with the
determination.
63.
Neighbour law in
particular should, in contrast with the way it functioned under
apartheid, focus on control over the actions (as
opposed to the
presence) of others who occupy and use property in their near
vicinity. There is a real lack of due process in the
past conduct of
the applicant in regard to the fencing, access control and; as will
be shown later, the objection to the use of
the land by first
respondent.
64.
Neighbour
law attitudes, principles and remedies that are informed by
absolutist claims such as Gien v Gien
1979 (2) SA 1113
(T) where the landowner claimed that he could do whatever he pleased
on his land as long as his actions were not actually illegal
and that
he was not obliged to take the effect on neighbours into account; is
constitutionally illegal.
65.
The
law is coined in Port Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC)
.
The non-property rights of others that have to be considered are not
restricted to competing property rights, but include the foundational
rights of freedom, equality and human dignity, as well as other
constitutional rights such as privacy or personal integrity.
The
land usage aspect and final interdict
66.
A further demand by the applicant is:
That the first respondent
be interdicted and ordered not to utilise his farm known as Portion 3
of farm Verliesfontein 341, district
Fouriesburg, in contravention
with the agriculture zoning thereof and in particular that the first
respondent be interdicted from
utilising the mentioned farm for
tourism accommodation and/or the conducting of business within the
hospitality and/or accommodation
industry
.
67.
The same applicant addressed a letter to the
first respondent on 6 May 2014 wherein it was stated that:
However, to ensure good
neighbourliness, Mr Du Plessis is willing to meet with you for
possible exchange of land. Should the negotiations
be successful, Mr
Du Plessis will assist you with a new road, without gates to be
passed, except your own gate. He will further
more have no objection
to a new building or the re-zoning of the exchanged part.
68.
The identity of the land to be exchanged is not
part of the evidence but it is clear that the applicant wanted some
of the land
of the first respondent. It involved the farm
Verliesfontein that is the property of the first respondent adjacent
to the applicant.
There will remain a need for a right of way.
69.
The above agreed-upon rezoning will cause the
prejudice of increased traffic and movement on the land of the
applicant that he utilizes
as basis for the interdict. The oxymoron
is glaring.
70.
The Dihlabeng Municipality is a category B
municipality situated in the Thabo Mofutsanyana District in the Free
State. It is one
of six municipalities in the district. It was
established in terms of section 12 of the Local Government Structures
Act 117 of
1998.
71.
The land in issue resorts under the above
jurisdictions. Section 24, section 32 and Schedule 2 of the
Spatial
Planning and Land Use and Management Act 16 of 2013
is applicable.
72.
It is the case for the first respondent that:
72.1
The primary use of the land is for residential
and subsistence living,
72.2
there are not four chalets on the property as
alleged,
72.3
the first respondent only has a self-catering
cottage and bachelor flat available for rental,
72.4
the area of the cottage (80m²) and bachelor
flat (40m²) is miniscule in relation to the extent of the first
respondent`s
farm (132,7625 hectares).
72.5
The bachelor flat is seldom in demand.
72.6
The accommodation is mainly for weekend tourists
and then perhaps only every second week and the odd guest week.
72.7
It is exceptional for the cottage and the flat to
be rented together.
72.8
The first respondent`s farm is located in a
tourist hub of South Africa.
72.9
The first respondent receives his friends from
overseas with their children that visit on regular basis.
72.10
All visitors are informed of the rules when
traveling on the farm roads and no guests or visitors have ever
caused damage or nuisance
for the applicant.
72.11
The cottage and the flat do not amount to a
hospitality and/or accommodation business as it is far secondary to
the primary use
of land.
72.12
The applicant has not referred to any
regulations, by-laws or legislative provisions that supports their
application.
72.13
The first respondent denies an increase in the
number of people.
73.
Even if first respondent`s use of the land is
unlawful in terms of zoning the applicant has other effective
remedies at its disposal.
The municipality is empowered to
investigate complaints and impose sanctions.
74.
Based on the provisions of SPLUMA and the By-laws
the Dihlabeng Municipality has a clear and direct interest in the
fourth prayer
and should have been cited. In the least they could
have contributed to a fast and permanent solution.
75.
The legislation also prescribes a due process
that the applicant was supposed to have followed. He, again,
disregarded it.
76.
There is an insurmountable dispute of fact that
should have been foreseen. The application for grant of the final
interdict may
either be by way of application (on notice of motion).
The choice of procedure depends on the likelihood of dispute, if
there is
no real factual dispute a final interdict may be granted on
application.
77.
In order to obtain a
final interdict:
77.1
The applicant must
prove a clear or definite legal right. This means that the
applicant must show that he or she is an owner
of land or is lawfully
vested with the rights of use and enjoyment of the land in question
or that there is vested in him or her
a legal right.
77.2
The second requisite
requires applicant to establish that his or her “clear”
legal right has been infringed by the first
respondent to his or her
prejudice; actual or potential.
77.3
The third requisite in
effect requires applicant to show that the extraordinary remedy of a
final (“perpetual”) interdict
is the only appropriate
form of relief and that there is no other adequate remedy.
78.
The applicant failed
the onus on the second and third requisites.
Order
1.
The relief sought in
prayers 1, 2, 3 and 4 is dismissed.
2.
The applicant to pay
the cost of the application
M
OPPERMAN, J
COUNSEL
FOR APPLICANT: GF HEYNS
GROENKLOOF
CHAMBERS
PRETORIA
COUNSEL
FOR THE FIRST RESPONDENT: JMC JOHNSON
CHAMBERS
BLOEMFONTEIN
[1]
Declaratory order.
[2]
Judgement in the amount of R100 000-00
[3]
Final interdict.
[4]
Final interdict.
[5]
Final interdict.
[6]
Payment of
costs.
[7]
The
agreement was not defined.
[8]
See Herbstein and Van Winsen: The Civil Practice of the High Courts
and the Supreme Court of Appeal of South Africa, Volumes
(5ed),
2009
Ch 43
pp 1438-1440.
[9]
Paragraph
2.13 of the Applicants Heads of Argument on page 6.
[10]
Applicant
Heads of Argument paragraph 2.19 page 7.
[11]
The
6-May-2014 letter.
[12]
Stuttaford
v Kruger
1967(2)
166 (C
),
Roeloffze NO & another v Bothma NO & others
2007
(2) SA 257
(K)
,
Malan v Green Valley Farm Portion 7 Holt Hill 434 CC
2007
(5) SA 114
(ECD)
.
[13]
2010, The Law of Neighbours,
first
edition by AJ van der Walt & GJ Pienaar.
[14]
In section 1 of the Fencing Act 'holding' means-(a) land held by any
person other than the State under separate grant, deed of
transfer
or certificate of title; (b) land held under lease, licence or
allotment from the State with an option to purchase it,
provided the
lease, licence or allotment is registered in a deeds office or other
registration office; (bA) other land which
vests in the State; but
does not include any erf, stand or lot situated within a
municipality or borough or proclaimed town,
village or township
unless such erf, stand or lot is at least three morgen in extent and
is one of a number contiguous to each
other on which farming
operations are carried on.
[15]
Section1 of
the Fencing Act: In this Act, unless the context otherwise
indicates- 'boundary fence' means any fence (including,
in an area
in respect of which a proclamation under section
three
is
in force, a jackal-proof fence), together with any necessary gate or
any contrivance forming part or serving the purpose of
such a gate,
erected on or as near as possible to the boundary of any holding and
separating such holding from any other holding;