South African National Roads Agency Ltd and Others v Le Roux NO and Others (A27/08) [2009] ZAFSHC 122 (3 December 2009)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2009
>>
[2009] ZAFSHC 122
|

|

South African National Roads Agency Ltd and Others v Le Roux NO and Others (A27/08) [2009] ZAFSHC 122 (3 December 2009)

SANRA
judgment
31/m
IN THE FREE STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA
Case No: A27/08
(previously case no: 2979/07)
In
the matter between:
THE
SOUTH AFRICAN NATIONAL ROADS
AGENCY
LTD
1st Appellant / 1st
Applicant
(in
the application for leave to appeal)
SIYENZA ENGINEERS
2nd
Applicant
THLAPANE CONSTRUCTION
3rd Applicant
and
JOHANNA CATHERINE
LE ROUX N.O.
1st Respondent / 1st Applicant
(in the main application)
JOHANNES GERHARDUS
LE ROUX N.O.
2nd Respondent / 2nd Applicant
(in the main application)
CHRISTO BOERDERY
(EDMS) BEPERK
3rd
Respondent / 3rd Applicant
(in the main application)
HEARD ON:
20
NOVEMBER 2009
__________________________________________________________________
JUDGMENT BY:
FISCHER,
AJ
__________________________________________________________________
DELIVERED ON:
3
DECEMBER 2009
__________________________________________________________________
FISCHER,
A.J.:
The South African National Road Agency Limited
(First Applicant) has brought an application seeking leave to appeal
the granting
of a final interdict in favour of Johanna Catharina le
Roux N.O. and two others (the Respondents)
on
31 January 2008, it being common cause that due to administrative
problems in the office of the Registrar of this Court the
judgment
together with full reasons was only made available to the Applicants
early in October 2009. Circumstances relating
to the problems this
caused for not only the parties hereto but also their legal
representatives have been dealt with in the
judgment and reasons
aforementioned and no purpose will be served in revisiting such,
save to reiterate that on 9 October 2009
the application for leave
to appeal was, by agreement, postponed to 20 November 2009 and the
Applicants given leave to file further
grounds if they so wished.
The costs of such postponement were in addition thereto held over.
Mr. Padayachee SC on behalf of the Applicants,
whilst conceding that the first requirement for a final interdict,
namely a clear
right on the part of the Respondents had been shown,
advanced the following further grounds which may be summarised as
follows:
2.1 The Respondents must stand or fall by their founding affidavits
and the facts alleged therein and in the circumstances they
failed to
show the remaining two requisites for a final interdict namely an
injury actually committed or apprehended and the absence
of any other
satisfactory remedy;
2.2
The Respondents
approached the Court on what was in essence spoliation proceedings
which, having regard to the approached adopted
by Horn A.J. (as he
was then) in the case of
AUSSENKEHR
FARMS (PTY) LTD v WALVIS BAY MUNICIPALITY
1996(1) SA 180 (CPD) at p. 189 as well as the judgment of this Court,
now requires further consideration by a Court of Appeal;
2.3
The denial by the
Applicants of the existence of any written record authorising access
or egress to and from the farm in question
was not as such a bland
denial;
2.4
This Court should
not have allowed Mr. Van Rooyen SC to rely upon interdict proceedings
at the commencement of the original hearing
in circumstances where
such had not been dealt with in his Heads of Argument;
2.5
The incorrect
finding by this Court that Section 44 of Act No. 7 of 1998 could be
interpreted as meaning that the Respondents were
not obliged to have
in their possession a written authority for purposes of access or
egress;
2.6
This Court erred in
resorting to inferential reasoning in determining that there was
evidence before it, on a balance of probability,
that the
requirements for a final interdict had been shown.
In deciding whether or not to grant leave to
appeal in cases in which leave is required, leave to appeal will
only be granted
when, amongst other things, there is a reasonable
prospect of success. (See
AFRIKAANSE
PERS BEPERK v OLIVIER
1949(2) SA
890 (O) at 892 to 893 and also
NZIMANDE
v NZIMANDE AND ANOTHER
2005(1) SA
80 (WLD) at 83.)
The questions which fall to be answered are,
taking into account that Mr. Padayachee SC has conceded that the
Respondents have
shown a clear right, namely the
de
facto
enjoyment of access and egress
to and from the farm onto the N1 Freeway, whether or not reasonable
prospects exist for a Court
of Appeal finding that, on the papers,
the Respondents have failed to show an injury committed or
reasonable apprehended as well
as the absence of any other remedy.
It is as simple as that.
In the founding affidavit relied upon by the
Respondents the following averments are made in support of the
submissions by Mr.
Van Rooyen SC that these two requirements have
been met. As regards the question as to an injury actually
committed or reasonably
apprehended the following:
“
Soos getoon, lê die trust se plaas, Willow, aan
weerskante van die N1 tolpad aan die noordekant van Kroonstad. Die
pad deel
die plaas Willow sodat gedeeltes van die plaas aan die
westekant van die tolpad lê en ʼn gedeelte van die plaas aan
die oostekant.
Die bou van die tolpad het tewens tot gevolg gehad
dat die plaas in twee gesny is.”
T
he founding affidavit
goes on to allege that since approximately 1989, and with the
assistance of Tolkon, the builders of the
original highway,
Respondents have been making use of two gates to access and egress
not only the highway but in addition thereto
the farmlands on the
other side thereof and the founding affidavit goes on to state the
following:
“
Sonder die twee betrokke hekke is dit prakties
onmoontlik vir die trust en Derde Applikant om boerdery aktiwiteite
weerskante van
die tolpad op die plaas Willow, ... te beoefen.”
Approximately eighteen years later the Applicants
advised that they intended closing the gates in question and a
lawyer’s letter
was written demanding an unequivocal undertaking
within 72 hours from the Applicants that the gates in question would
not be
closed failing which “het ons instruksies om ‘n
verbiedende interdik teen u te bekom”. (See annexure “B” to
the founding
papers.) Discussions were subsequently held between
the parties, the details of which were not elaborated upon. It
would however
appear that representatives of the Applicants
inspected the gates in question after the aforementioned letter was
written, whereupon
a representative of the Applicants, one Frank
Joubert advised as follows:
“
... dat daar nou enige dag voortgegaan sal word met
die sluiting van die hekke.”
The aforegoing allegations must be seen within
the context of the further allegations regarding the
inability
of a bridge over the highway in the immediate vicinity of the gates
to accommodate a wide plough required for farming
activities as well
as Respondents concluding averments that they are entitled to the
relief sought to prevent Applicants from
the “ontneem van die
gebruik van die hekke, anders dan by wyse van ‘n hofbevel of ‘n
behoorlike administratiewe proses”.
I am of the opinion that, in the absence of any
denial regarding the apprehended threat to close the gates and the
subsequent
consequences this would have for the Respondents, the
Respondents have shown the presence of the remaining two requisites
for
a final interdict. A reading of prayer 1 of the Notice of
Motion furthermore shows that the Respondents approached this Court

seeking such an interdict.
I am not convinced that Horn A.J. (as he was
then), in the
AUSSENKEHT FARMS (PTY)
LTD
-case
supra
at p. 189 was suggesting that the legal basis for the
mandament
van spolie
should be expanded as he
quite clearly expressed his unequivocal support for the dictum
followed in the case of
SETLOGELO v
SETLOGELO
1914 AD 221
AT (227).
In both these cases a clear right for purposes of an interdict was
found to be no more than
de facto
possession/occupation and did not require proof of any
ius
possidendi
. Views to the contrary
were clearly rejected by Horn A.J. (as he then was). (See
AUSSENKEHR
-case
supra
at
p. 189 B to E and G to I.)
I find, with reference to the grounds of appeal
set out earlier, that there is no reasonable prospect of success on
appeal and
that the application should be dismissed with costs. Mr.
Padayachee SC agreed that if leave to appeal be refused, the
Applicants
should pay the costs of 9 October 2009. The following
order is accordingly made:
11.1 The application for leave to appeal is
dismissed with costs;
The Applicants in the application for leave to appeal, being the
Respondents in the main application 2979/2007 are ordered
to pay
the costs occasioned by the postponement on 9 October 2009.
_______________
P.U. FISCHER, AJ
On behalf of applicants:
Adv.
Padayachee SC
Instructed by:
Bokwa Attorneys
BLOEMFONTEIN
On behalf of respondents: Adv. P.C.F. van Rooyen
SC
Instructed by:
Symington & De Kok
BLOEMFONTEIN