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[2017] ZAFSHC 28
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Meintjies N.O. and Others v Nel Bk and Others (4122/2016) [2017] ZAFSHC 28 (9 February 2017)
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,
BLOEMFONTEI N
Case
number: 4122/2016
In
the matter between:
HENDRINA
WILHELMINA
MEINTJIES
N.O.
First
Applicant
GERDINE
STOLTZ
N.O.
Second
Applicant
SCHALK
WILLEM
MEINTJES
N.O.
Third
Applicant
ANDRE
MEINTJES
Fourth Applicant
HENDRINA
WILHELMINA
MEINTJES
Fifth
Applicant
and
LLOYD
NEL BK
First
Respondent
JOHANNES
PETRUS
NEL
Second Respondent
BLANCHE
NEL
Third
Respondent
CORAM:
PHALATSI, AJ
HEARD
ON:
09 SEPTEMBER 2016
JUDGMENT
BY:
PHALATSI, AJ
DELIVERED
ON:
09 FEBRUARY 2017
[1]
The applicants approached the court for an order in the following
terms:
2.1
The Applicants' possession of the immovable property better known as
"Die omheinde werf insluitend twee woonhuise en buitegeboue
gelee
op die
eiendom
bekend as Gedeelte 1
van die plaas
M. [...],
distrik Reitz,
Provinsie
Vrystaat"
be restored;
2.2
The Respondents are ordered and directed to restore the Applicants'
usage and enjoyment
of the immovable property;
2.3
The Respondents are ordered and directed to remove all piles of
gravel on the road leading
to the abovementioned immovable property;
2.4
The Respondents are ordered and directed to remove all of their
equipment, tools and
belongings from the store room situated on the
abovementioned immovable property;
2.5
The Respondents are ordered and directed to remove all of their
furniture, tools,
equipment, personal belongings and decorations from
the immovable property.
[2]
The facts of the case are briefly as follows:
The
applicants allege that a lease agreement was entered into in terms of
which the Wilandre Trust leased the immovable property
described as
"Die omheinde werf insluitende twee woonhuise en buitegeboue
gelee op die eiendom bekend as Gedeelte 1 van die
plaas M. [...],
distrik Reitz, Provinsie Vrystaat", from the first respondent.
It is apposite to deal with this aspect at
this early stage of the
judgment, in respect of the respective arguments advanced by both
parties. The respondents aver that the
purported lease agreement is a
nullity because it does not provide for the payment of rent. The
applicants argue, correctly in
my view, that the validity of this
agreement is irrelevant for the purpose of the present application.
What is clear is that when
the fourth and fifth applicants sold the
farm to the respondents, they reserved to themselves the right of
occupation of the residential
part of the farm, analogous to the
right of
Habitatio.
The respondents do not appear to dispute
this fact. It is further common cause that the property which is the
subject matter of
the case, consists of two houses and the outside
building, which is referred to as "the storeroom". It is
further common
cause that gravel and soil was dumped on the gravel
road leading to the immovable property where the fourth and fifth
applicants
resided. It is this dumping of the gravel on the road that
the applicants aver deprived them of possession, usage and enjoyment
of the immovable property in that they could no longer tow their
caravan into their residence.
[3]
The applicants further allege that the respondents removed a big
Banktia Rose Plant from the small house and started renovating
same.
The respondents also removed the applicants' equipment, tools and
other belongings from the outside building (storeroom).
The
respondents further constructed a "hang moth" under one of
the trees in the garden, which area the applicants used
for
activities such as skinning sheep, relaxing and
spending time with their grandchild. The applicants
were in
peaceful and undisturbed possession of the entire immovable property
and they were deprived of their possession, usage
and enjoyment in an
unlawful manner, so the argument goes.
[4]
The respondents, on the other hand, aver that a contractor by the
name of Mr. Sibanyoni was contracted by the Nketoane
Local
Municipality to do excavations and to lay water piping in the
excavated ground, which excavation covered a distance of 9
Kilometres
over their farms. They then agreed with the said Sibanyoni that the
excess gravel should be used to improve the particular
access road,
instead of having to transport it away. This would improve the
condition of the road and make it more accessible and
user friendly,
in times of rain. The applicants did not dispute this averment that
the road would be improved. Sibanyoni then dumped
the gravel on the
said access road in heaps and said that he would only level the
gravel with a grader, once the construction in
the area is finsihed.
The respondents aver that this was discussed with the fourth
applicant and he agreed thereto, which averment
is denied by the
fourth applicant. It is, however, common cause that there was a two
track farm road, next to the original road,
which was utilised by the
vehicles to access the farm. The main argument of the applicants is
that they cannot access the property
with their caravan. In respect
of the small house, the respondents aver that they were handed the
keys to the said house by the
applicants.
[5]
The respondents then made an application to strike out certain
paragraphs in the applicants' replying affidavit, on the basis
that
they constitute argumentative matter. The other paragraphs should be
struck out on the basis that they constitute new evidence
which
should have been included in the founding affidavit. I then made a
ruling that the paragraphs which are said to be argumentative
should
remain as the respondents did not show that they would suffer any
prejudice, and the paragraphs which constituted new evidence,
should
be struck out. These paragraphs related solely to the dimensions and
size of the applicants' caravan and photographs showing
that it was
impossible to access the residence of the applicants whilst towing a
caravan.
[6]
The applicants allege a number of different occasions of spoliation
and I will, therefore, deal with specific aspects of those
instances,
although it might not be in the order in which the parties have dealt
with them. It is trite that in an application
of
mandament
van
spolie,
the applicant must allege and prove, on a balance of
probabilities, that he/she was in peaceful and undisturbed possession
of the
thing and that he/she was unlawfully dispossessed of the said
thing.
SPOLIATION
OF THE SMALL HOUSE, STOREROOM AND YARD
[7]
It is common cause that the applicants handed over the keys of the
small house to the respondents. The applicants allege that
the
agreement that led to the keys being given to the respondents was
conditional upon the finalization of the question of the
usage of
electricity. As I have already alluded to, in a spoliation
application, the court is not required to determine the merits
of the
underlying agreement, as the only aspect to be dealt with is
possession and unlawful dispossession of a thing. In the present
case, the applicants voluntarily relinguished possession of the keys
and it can, therefore, never be said that they were unlawfully
dispossessed of the small house. It is equally true that they have
not shown that they have been dispossessed of the storeroom
or
outside building, in that they no more had access to the said room.
They have also not shown that they can no longer use the
storeroom
for the purpose that they were using it, because of the actions of
the respondents. This also holds true for the yard.
The applicants
have failed to show that the conduct of the respondents has prevented
them from slaughtering their sheep under the
tree, nor prevented
their grandchildren from playing there. The mere placing of the
ornaments and signs on the ground yard by the
respondents, does not
in any way disturb or dispossess the applicants of their use or
enjoyment of the yard or garden. I find it
difficult to imagine that
a person can be given possession of the house, without having access
or use of the yard, garden or storeroom.
These are common places that
are used by the people who are having diferrent houses in the same
yard. It cannot be expected of
the respondents to have possession of
the small house and have nothing to do with the garden, yard or
storeroom. The sharing of
these facilities does not amount to
dispossession thereof.
THE
ACCESS ROAD
[8]
Mr Snellenburg, on behalf of the applicants, relies on the cases of
Nienaber
v
Stuckey
1946 AD 1056
and
Willowvale
Estates
and
Another v
Bryanmore Estates
(Ltd)
1990
(3) SA
954
(W)
and argues
that the existence of other points of access or routes is not a
defence to an act of spoliation. The cases that he relies
upon are
cases where the respondent had locked a specific gate giving access
to a road, which had always been used by the applicant.
The
applicants state as follows in their founding affidavit:
"It
is indeed so that the gate in question is on the First Respondent's
property and I agree that the Applicants will not use
this gate under
normal conditions ..."
In
the present case, therefore, there is no allegation that the
applicants have been deprived of the right of access through the
specific gate or route. The applicants have always had access to the
house through the specific route and used the specific gate.
It is
not the route that had been changed but the surface of the road which
was used. Indeed, it was conceded by Mr Snellenburg
that there was no
single instance where the applicants were not able to access their
residence because of heaps of gravel on the
road. The only emphasis
of the applicants was that they could not access their residence
whilst towing a caravan. This begs the
question whether the inability
to access their residence whilst towing a caravan amounts to
spoliation and unlawful deprivation
of the use of the road. I do not
think so. The right of access is that of the applicants by car, and
not the caravan.
The
further point to be dealt with, is whether the placing of gravel on
the road with a view to improve the said road amounts to
unlawful
dispossession of the use of same. It is not sufficient for the
applicants to only prove that they have been dispossesed
of the
use of the road; they must also
prove that the
said
dispossession
was unlawful. As I
have
already pointed out, it is not
disputed
that the sole purpose of placing of the gravel on the road was to
improve the said road. I
fail
to understand how can it
be
said that improvement
of
the road can be held to be unlawful. The road is improved to the
advantage
of
all
the
parties
involved,
including
the
applicants.
I
therefore
can
come
to
no
other
conclusion
but
to
find
that
the
applicants
have
failed
to
prove
that
they have
been
unlawfully
deprived
of
the
right
of
access
to
their
residence
by
the
respondents.
[9]
I therefore make the following order.
The
application is dismissed with costs.
___________________
N.W.
PHALATSI , AJ
On
behalf of applicant:
Adv. N Snellenburg SC
Instructed
by:
Phatshoane
Henney Inc.
Bloemfontein
On
behalf of respondents: Adv. L
Pohl SC
Instructed
by:
Symington
& De Kok
Bloemfontein