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[2015] ZAGPPHC 161
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Viljoen and Another v Bekker (9189/2015) [2015] ZAGPPHC 161 (19 February 2015)
IN
THE GAUTENG DIVISION HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Case Number:
9189/2015
Date
Coram: Molefe J
Heard: 19
February 2015
Delivered: 27
February 2015
FREDERICK
RUDOLFUS
VILJOEN
............................................................................
1
st
APPLICANT
HELENA MARIA
VILJOEN
...........................................................................................
2
nd
APPLICANT
And
ALETTA ELIZABETH
DORATHEA
BEKKER
.............................................................
RESPONDENT
JUDGMENT
MOLEFE J
[1]
The applicants approached this court by way of urgency for a
mandament van
spolie.
The
purpose of this application is to restore to the applicants, access
to and possession of the registered servitude, registered
in their
favour over the respondent’s property known as Portion 256 (a
portion of Portion 18) of the farm Naauwpoort 335,
Registration
Division JS, Mpumalanga Province, held by virtue of Deed of Transport
T11201/2008
ante
omnia.
The
applicants further apply for an order that a status
quo
in
respect of the servitude road be restored to enable them to utilize
it.
The
respondent opposes the application and puts in issue whether
mandament van
spolie
was
an appropriate remedy.
[2] The facts of the
matter are briefly that:
2.1 The applicants
are the registered owners of Portion 254 (a portion of Portion 18) of
the farm Naauwpoort 335, Registration Division
JS, Mpumalanga
Provice, registered in the Deeds Office on 18 July 2008 and held by
virtue of Deed of Transport T11200/2008. Clause
5 of the Title Deed
No T11200/2008 provides the following:
“
Die
eiendom hiermee getransporteer is onderhewig aan ‘n Reg van Wet
ten gunste van die Algemene Publiek Serwituut 8 meter
wyd soos
aangetoon deur die lyn ef op kaart 12432/1998 wat die Suidwesteiike
grens daarvan voorstel”.
2.2 The respondent
is the owner of Portion 256 (a portion of Portion 18) of the farm
Naauwpoort 335, Registration Division JS, Mpumalanga
Province,
registered in the Deeds Office on 18 July 2008 and held by virtue of
Title Deed T11201/2008. Clause 5 of the Title Deed
No T11201/2008
provides the following:
“
Die
eiendom hiermee getranporteer is onderhewig aan ‘n Reg van Weg
ten gunste van die Algemene Publiek Serwituut 8 meter wyd
soos
aangetoon deur die lyn ef kaart 12432/1998, wat die Suidwestelike
grens daarvan voorstel”.
[3] The relevant
facts which are common cause and the respondent’s allegations
which must be accepted may be summarized as
follows:
3.1 The applicants’
property is “land locked” and the only manner in which
the applicants can access their property
is through the respondent’s
property. The respondent had previously afforded the applicants an
opportunity to use an alternative
road to the servitude road to
access their property.
3.2 The respondent
intentionally and deliberately decided to close the alternative road
(depicted in the photo marked Annexure “FV6")
by
constructing a gravel barrier or obstacle on the road, together with
rocks and two notices displaying the word “privaat”.
3.3 As a result of
the respondent’s closure of the alternative road, the
applicants made use of the servitude road to access
their property.
Shortly after the use of the servitude road, the respondent spoliated
the applicants by ordering her employees
to construct a barricade in
the form of a deep ditch or trench as depicted in the photo marked
Annexure “FV10”.
[4]
The applicant’s case is made in the respondent’s
answering affidavit by the following passage:
1
“
Annexure
“FV10” is a photograph of a drainage ditch that was
excavated on my instructions on or about 21 January 2015.
That part
of the drainage ditch that is depicted in the photograph is situated
roughly at point M on annexure “AEDB1”
on my properties.
I had the drainage ditch excavated to channel excessive rainwater on
my properties. It is by pure chance that
the drainage ditch traverses
the servitude road. In any event, I repeat that nobody, including the
applicants, make use of the
servitude road. ”
[5]
Counsel for the applicants
2
submits that at all relevant times, the applicants were in the
undisturbed and peaceful possession of the servitude road, which
servitude was registered against the respondent’s property in
their favour as is evident from the title deed referred to
supra.
The
respondent unilaterally and deliberately prevented the applicants
from using either the alternative road or the servitude road,
thereby
spoliating them by making it impossible for them to access their
property via the registered servitude.
[6]
I agree with the case as argued to me on behalf of the respondent in
that an applicant who seeks spoliation order, seeks final
relief and
generally such relief may be granted only if the allegations of fact
made by the applicant which are admitted by the
respondent, together
with the allegations of fact made by the respondent, justify the
grant of such relief (See
Kinnear and Others v
Traviso (Pty) Ltd (A567/2007) [2008] ZA GPHC 389 (4 December 2008).
[7]
Counsel for the respondent
3
argued that the subject matter of the present application is a public
servitude of right of way and that the applicants have not
established on the papers that they have actually used the servitude
road. Counsel contends that the applicants cannot therefore
claim to
have had possession of the servitude for purposes of a spoliation
application as proof of the existence of the servitude
does not by
itself prove possession of the servitude. In this regard, counsel
relied on
Van
Rhyn NO and Others v Fleurbaix Farm (Pty) Ltd
2013 (5) SA 521
(WCC)
at par [9]:
“
Thus
where a right is concerned, dispossession is established by the
applicant demonstrating that it has been deprived of a previously
exercised utility and identifying the right in terms which it
contends it is entitled to exercise the utility. It is the
relationship
between the two that prima facie establishes the
possessory element that is an essential part of the case of an
applicant for relief
under the mandament, for it identifies the
subject matter of the alleged despoilment. ”
[8] The respondent,
in her answering affidavit submits that the applicants have access to
their property via an alternative access
road, and are thus not
suffering undue hardship and discomfort on a daily basis, because
they are unable to access their property
via the servitude road.
According to the respondent, the applicants have never used the
servitude road which has fallen into disuse.
It is further argued by
the respondent’s counsel that the existence of the servitude
merely identifies the nature of the
right relied upon and not the use
thereof.
[9]
It is a fundamental principle that no man is allowed to take the law
into his own hands; no-one is permitted to dispossess another
forcibly or wrongfully and against his consent for the possession of
property whether movable or immovable. If he does so, the
court will
summarily restore the
status
quo ante
and
will do that as a preliminary to any inquiry or investigation into
the merits of the dispute.
(See
Nino Bonino v De Lange
1906 TS 120
at 122).
[10]
It is trite that in a spoliation application, an applicant must
comply with two requirements, namely, firstly, peaceful and
undisturbed possession, and secondly, wrongful or unlawful
deprivation of such possession.
(LAWSA, volume
11, para 342 at p.304).
Wrongful
or unlawful deprivation refers to dispossession without the
applicant’s consent or without due legal process.
(Harms,
Amler’s Precedents of Pleadings, seventh edition, p358).
[11]
It is equally trite that the merits of an applicant’s
possession and the respondent’s rights to dispossess are,
subject to at least one exception, not justiciable in a
mandament
van spolie
application.
The exception is that of a statutory right to dispossess.
(Harms,
supra 358).
[12]
It is the respondent’s submission that this application for
spoliation be dismissed as the applicants had an alternative
route
that they could use or were using and that the applicants never used
the servitude road. In my view, this is a collateral
issue which
cannot be raised as a defence against spoliation. It has been
recognised that the use of a servitude can be protected
by the
mandament
without
proof of the existence or otherwise of the servitude
4
.
[13] As mentioned
above, the applicants need only show two grounds, peaceful and
undisturbed possession of the thing or in this
case, the road and
that they have been unlawfully deprived of that possession. The
respondent is generally not allowed to contest
the spoliated
applicant’s title to the property because good title is
irrelevant. The claim to relief under the mandament
arises solely
from deprivation of possession without following legal procedure.
[14]
The question is whether the applicants have discharged the onus of
proving on a balance of probability that they were in possession
of
the servitude road and that they had been wrongfully deprived of
possession. Because these proceedings are on notice of motion,
I am
bound to use the fact-finding process set out in
Plascon-Evans
Paints Ltd v Van Riebeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A).
The
uncontested evidence in the present matter is that the applicants
have a servitude registered in their favour over the respondent’s
property and had the undisturbed and peaceful possession thereof. The
respondent conceded that she unlawfully deprived the applicants
of
that possession by digging a drainage ditch which
“
by
pure chance”
traverses
the servitude road and that the applicants are unable to access their
property via the servitude road. It is evident in
casu
that
the applicants are entitled to the relief in terms of
mandament
van spolie.
The
use of an alternative route has, in my opinion, no relevance to the
exercise of peaceful and undisturbed possession of the servitude
road. Furthermore, it is not a defence to the unlawful deprivation of
the thing possessed.
[15] I am satisfied
that the applicants have succeeded on a balance of probabilities to
prove their application for spoliation and
are thus entitled to the
relief sought in the application.
[16] There remains
the aspect of costs. No one contended that costs should not follow
the result, but the applicants submitted that
a special attorney and
client costs should be made against the respondent. I am not
persuaded that such an order should be granted.
[17] In the
premises, the following order is made:
1) That the
Respondent be ordered to restore the Applicants’ access to and
possession of the registered servitude (right of
way) registered in
their favour over the Respondent’s property known as Portion
256 (a Portion of Portion 18) of the farm
Naauwpoort 335,
Registration Division JS, Mpumalanga Province, held by virtue of Deed
of Transport T11201/2008, ante omnia;
2) That the
Respondent be ordered to restore the status quo of the road (right of
way) in respect of which the servitude, referred
to and contained in
paragraph 2 supra, and to repair or to rehabilitate the road (to
enable the Applicants to utilize it) and to
enable the Applicants to
access their property known as Portion 254 (a Portion of Portion 18)
of the farm Naauwpoort 335, Registration
Division JS, Mpumalanga
Province, held by virtue of Deed of Transport T11200/2008;
3) That the
respondent be ordered to pay the costs of this application on the
scale as between party and party, including costs
consequent upon the
employment of senior counsel.
D S MOLEFE
JUDGE OF THE HIGH
COURT
APPEARANCES:
Counsel
on behalf of Applicant :
Adv.
FW Botes SC
Instructed by:
Friedland Hart Solomon & Nicolson Attorneys
Counsel
on behalf of Respondent:
Adv.
CP Wesley
Instructed by:
Jacobs Attorneys
1
Page
64 of the bundle, paragraph 32
2
Advocate
FW Botes SC
3
Advocate
C Wesley
4
Bon
Quelle (Edms) Bpk v Munisipaliteit van Octavi
1989 (1) SA 508
(A) at
514 D-H