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[2009] ZAGPPHC 187
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Mantella Trading 341 CC v Thompson NO and Another (19069/2009) [2009] ZAGPPHC 187 (5 May 2009)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG PROVINCIAL DIVISION)
Case
number: 19069/2009
Date:
5/05/2009
MANTELLA
TRADING 341
CC
..............................................................
First
Applicant
MARTHUINUS
PETRUS CHRISTIAAN BAMBERGER
…............
Second Applicant
ANANJA
LOUISA
BAMBERGER
...........................................................
Third
Applicant
ABEL
DISANE
MOLOANTOA
.............................................................
Fourth
Applicant
JOEL
NGOBENI
........................................................................................
Fifth
Applicant
LESIBA
WILLY
MOROATSE
...................................................................
Sixth
Applicant
MADUMETJA
JHON
MOLOATSE
…................................................
Seventh
Applicant
and
MARK
BYRON THOMPSON N.O.
….................................................
First
Respondent
MICHELLE
CECILE THOMPSON N.O.
…..................................
Second
Respondent
JUDGMENT
PRETORIUS
J,
This
application is an urgent application in which the relief requested is
that the first to seventh applicants be restored in their
peaceful
and undisturbed possession of the existing (old) road over the
property of Mbala Lodge Trust as indicated on the annexures
to the
founding affidavit.
In
the alternative that the first and second respondents be interdicted
from interfering with first to seventh respondents’
use of the
road over the Mbala Lodge Trust property, pending the finalization of
the action instituted by the applicants.
The
third prayer is that the Mbala Lodge Trust and the respondents be
ordered to remove the fence that was erected across the existing
road
and to re-establish the status quo by re-installing the previous gate
on the said road.
This
matter was brought on a semi- urgent basis, as the application was
launched on 1 April 2009. The respondents had to file their
opposing
affidavits on or before 7 April 2009. The applicants had to file
their replying affidavits on 16 April 2009 to ensure
that the matter
would be heard on 21 April 2009.
The
respondents only filed their opposing papers on 17 April 2009 at
19h55, making it impossible for the applicants to file the
reply
within the time limits.
The
replying affidavit was filed on 21 April 2009.
This
application is in essence a ’’mandament van spolie”,
according to the applicants.
This
court decided to hear the question of urgency at the same time as the
merits of the matter.
Mr.
Strydom, for the applicant, argued that should the matter be heard in
the normal course of the roll, it would take at least
6 months for
the matter to be heard. In the interim the applicants would not be
able to use the road.
It
is common cause that the applicants had peaceful and undisturbed use
of the road in question since, at least 1911. The road was
used by
the applicants who had keys to the gates installed on the road. These
keys were supplied to all users of the road after
the western bypass
had been completed.
At
the beginning of March 2009 the respondents unilaterally decided to
close the road by erecting a fence in the place where the
gate was at
the entrance to their property, thus causing the closure of the road.
In
Le Riche v PSP Properties CC and Others 2005(3) SA 189 CPD at 193
Yekiso
J found that the mandament van spolie:
"...
is an extraordinary, robust and speedy remedy.’’
The
applicants only have to allege and prove (i) peaceful and undisturbed
possession and (ii) unlawful deprivation of such possession.
The
only question this court has to decide in regards to the mandament
van spolie is whether there has been spoliation. To be able
to decide
this the court has to find that the applicants were in de facto
possession. This also includes incorporeal rights - the
cases of
quasi possession.
In
Bon Quelle (Edms) Bpk v Munisipaiiteit Otavi 1989(1) 508 AD Hefer JA
found at p514:
“’
n
Onliggaamlike saak soos ‘n serwituut is natuurlik nie vatbaar
vir fisiese ‘besit’ in dieselfde sin as wat daardie
uitdrukking gebruik word met betrekking tot liggaamlike sake nie,
maar wei vir quasi- possessio wat bestaan uit die daadwerklike
gebruik van die serwituut....In die samehang van die mandament van
spoiie neem, soos later sal blyk, die daadwerklike gebruik van
‘n
beweerde serwituut die plek van die besit van ‘n liggaamlike
saak. ’’
Hefer
JA further found at p515:
“
Dit
is nogtans hoe die mandament van spolie ontwikkel het en die iogiese
beswaar vervaag wanneer in gedagte gehou word dat die mandament
gemik
is bioot op die herstei van die feitelike toestand wat vantevore
bestaan het en wat deur appellant se eiegeregtige optrede
versteur
is."
The
applicants’ case is that the right to the road was used at
different times by different people. The road was used by the
applicants, their family, the employees and contractors even after
the western road had been completed. Contrary to Mr. Vorster’s
allegation that the applicants only averred in the replying affidavit
that the keys to the gates on the road was still used after
the new
road had been completed, it was quite clearly set out in the
applicants’ founding affidavit:
’’
After
the new western road was established, we obtained keys for the locks
on the existing road giving us free access thereto until
the
deprivation during March 2009. ”
This
is not denied by the respondents. They only state:
"I
am doubtful that the old road may have been used by various persons
up to the time when I closed it where it enters the
property of the
respondents."
The
respondents further state:
"In
any event, the old road could never have been a public right of way
until now as locked gates were installed on all the
properties
including the property of the first applicant. Only property owners
had keys to the relevant gates.”
The
respondents admit that Mr. Bamberger, the second applicant’s
father, used the road recently when there was a problem with
the
Telkom lines, as well as the fact that Mr. Bamberger had moved cattle
from portions 1 and 2 of the farm to portions 7 and 8
of the farm
utilizing the road. Furthermore the respondents merely deny the fact
that the second and third applicants use the road
continuously. The
respondents admit that the road was historically used until it was
closed by the respondents. The respondents
do not reside on the farm.
It
is quite clear from Mr. Makuru’s statement annexed to the
respondents’ opposing papers, that even the respondents
had
occasion to use the old road, after the new road had been
constructed. He also admits that.
I
have only very occasionally seen Mr. Bamberger on the old road."
Ms
Annah Tswinyana states on behalf of the respondents:
’’
The
old road was not used a lot. We did not see or hear trucks nor(sic)
people using the old road too much. ”
These
statements confirm that the old road was still used. This is further
confirmed by the fourth to seventh applicants who state
that when
they returned from vacation on 9 March 2009 the existing road was
closed by a fence. The only inference the court can
draw from this,
is that they would not have used this road if they had not been
utilizing it.
Having
regard to all the evidence I cannot but come to the conclusion that
the applicants, or at least the first, second and third
applicants
were in quasi possession of the old road.
The
respondents rely on an e-mail dated 6 December 2005, which according
to them is an agreement.
The
portion of the e-mail the respondents rely on reads as follows:
“
As
discussed with yourself on Tuesday, December 06, 2005 construction of
the new servitude can begin immediately. It is envisaged
that the
servitude will be fully functional by February 2006; thereafter we
will close the current road"
The
second applicant says the first time he saw this e-mail was at the
drawing of the replying affidavit. He denies, in any event,
that it
constitutes an agreement.
The
next correspondence relating to the closure of the road is the e-mail
sent by the first respondent on 23 February 2009. This
e-mail was
only received by the second applicant on 4 March 2009, on his return
from overseas. This e-mail makes no reference to
any agreement, but
reads:
“
Further
to our correspondence and discussions in December 2005 and our
subsequent construction of the new servitude road for our
respective
properties in 2006, we felt that the time was now appropriate to
advise of our intention to remove our gate and close
off our property
at our front Grootfontein entrance. ”
The
first respondent continues:
"After
closely monitoring the old road through our properties since October
2008, we can advise that the traffic through our
mutual properties
has been almost zero"
I
must agree with Mr Strydom , for the applicants, that such a survey
would have been totally unnecessary if there was an agreement
regarding the closure of the old road. Furthermore, the first
respondent says that the traffic was almost zero - indicating that
there was still traffic using the road. No further mention is made of
the survey in any of the opposing affidavits.
Telkom
and Escom also used the oid road to maintain the telephone and
electricity lines respectively.
I
have come to the conclusion that the applicants have proved they were
in possession of the road and had access to the road on
a continuous
basis, as the respondents had supplied them all with keys to the
gates on the road, after the western bypass had been
completed.
As
to the second leg of spoliation, that the respondents deprived them
wrongfully of possession without their consent , it is clear
that
there was no agreement. The applicants have also proved on a
preponderance of probabilities that the respondents have deprived
them wrongfully of their possession without their consent.
I
am not making any finding regarding the alternative remedy, as I have
found that the applicants are successful with their application
for a
mandament van spolie
I
make the following order:
1.
That the first to and including the seventh applicants be restored in
their peaceful and undisturbed possession of the existing
road over
the property of Mbala Lodge Trust, which road is indicated in red on
annexures “MB2" and “MB3”
to the applicants’
founding affidavit;
2.
That the respondents must pay the costs of the application.
C
Pretorious
Judge
of the High Court
Case
number : 19069/2009
Heard
on: 23 April 2009
For
the Applicant: T Strydom
Instructed
by: Wagenar
For
the Respondent: L J Vorster
Instructed
by: SC Prinsloo Bekker Inc
Date
of Judament