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[2009] ZAKZPHC 3
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Gounder and Another v Govender (AR467/08) [2009] ZAKZPHC 3 (6 March 2009)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
NATAL
PROVINCIAL DIVISION
APPEAL NO. AR467/08
In the matter between:
YAGAMBARAM
GOUNDER
First Appellant
KRISH
NAICKER
Second Applicant
and
ANJALAY
GOVENDER
Respondent
JUDGMENT
Delivered on
6 March 2009
MSIMANG,
J:
1] This
appeal is directed against the spoliation order granted by the
Magistrate, Umzinto
in an application brought by the respondent (the
applicant in the Court
a
quo)
against
the appellants (the respondents in the Court
a
quo).
2] The
respondent and her late husband had been married in community of
property and were
joint owners of a certain immovable property
described as Sub 33 of lot 25 number 1955 situate in the county of
Alexandra
Province of Natal (respondent’s property).
Adjoining this property is another property described as Sub
32 of
lot 25 Number 1955 situate in the county of Alexandra Province of
Natal, which is owned by a person who was cited as the
first
respondent in the Court
a
quo
and
in respect of whom the application was dismissed with costs. (the
dominant tenement).
3] In
terms of the deeds of transfer of the two properties they are subject
to a servitude
of right of way or road in favour of all
the owners of the subdivisions of the said lot 25 and both properties
bear
a corresponding benefit of right of way over such roads shown in
the sub-divisional diagrams of the said lot 25. This registered
servitude accordingly accorded the owners of the respondent’s
property a right of way over property described as sub 32.
4] It
would appear that, upon the demise of the respondent’s husband,
the respondent
found herself in financial straits and, as a result,
she was compelled to sell the property to the Department of
Agriculture.
Indeed, an agreement of sale was
concluded and the Department took occupation of the property.
At the same time,
the Department concluded a caretaker agreement with
the second appellant in terms of which the latter commenced farming
operations
on a portion of the property.
5] However,
during 2007 before the Department took transfer of the property,
the
respondent was able to save sufficient money to be able to rescue
the property. The Department was accordingly
approached and a request made for the cancellation of the sale
agreement. The Department agreed and, upon
payment
of what was owed to it, the agreement was duly cancelled. The
Department then dispatched a letter to the second appellant
cancelling the caretaker agreement it had earlier concluded with him
and, during July of 2007, the respondent dispatched
her own
to the second appellant giving him one month’s notice to vacate
the property.
6] During
May 2007 the respondent had concluded a lease agreement with a
certain close
corporation authorizing the same to conduct sand mining
activities upon the property. The second appellant had
apparently
not taken kindly to this development. During
the same month and year the respondent was informed by her new tenant
that, when they were attempting to enter the leased property, they
established that a trench had been dug across the road within
the
servitude area of the property and that various forms of thorny bush
had been placed on the road as a means of creating an
obstruction and
preventing access across the property. A chain and lock
access control point had been created preventing
anyone from crossing
this point within the servitude area without first removing the chain
across the road. A sign
had also been erected informing
all and sundry that unauthorized persons were not allowed beyond that
point.
7] All
subsequent attempts to resolve the conflict proved fruitless.
It was
for that reason that, on 7 March 2008, the respondent
approached the Magistrate’s Court seeking interim relief on the
following
terms :-
“
(a)
that the first, second and third respondents remove forthwith all
obstructions within the right
of way or road servitude upon sub 32 of
lot 25 number 1955 and to restore the status quo ante the deprivation
of the right of way
or road servitude so as to enable the applicant
and all persons directed by her to enter and travel upon the right of
way or road
servitude and to gain access to and from sub 33 of lot 25
number 1955;
(b)
that
in the event of the respondents failing to do so within twelve (12)
hours of the service upon them of this Court order, the
Sheriff of
Umzinto is authorized to attend to the removal of the obstructions
upon the servitude area on sub 32 of lot 25 number
1955.”
and
calling upon the appellants and the first respondent in those
proceedings to show cause on 8 April 2008 why the interim
order
should not be made final. The said interim relief was
duly granted. However, the confirmation of
the same was
strenuously resisted by the appellants and, after the matter had been
argued, the Court
a
quo
confirmed
the rule against the appellants but dismissed the application with
costs in respect of first respondent in those proceedings.
8] This
appeal is directed against that finding and, though a number of
defences had been
raised by the appellants in their opposing
affidavit, during argument in the Court
a
quo
and
before us, those defences appeared to have whittled down to primarily
one defence which, as I understood Mr.
Naidu,
who
appeared for the appellants before us, is the following.
9] To
the respondent’s founding affidavit had been attached a
sub-divisional diagram
marked “D3” reflecting a layout of
the entire Lot 25 number 1955 of which sub-divisions 32 and 33 form a
part.
Drawn across the diagram is a green line which,
according to the respondent, depicted the road which is subject to
the registered
servitude.
10] In
their opposing affidavit the appellants denied that this was the
case. They averred
that the road which is reflected on
annexure “D1” is not the same road which is depicted as
the green line traversing
the dominant tenement on annexure
“D3”. They annexed to their affidavits
two photographs which
were, respectively, marked “KN4”
and “KN5” showing the road running west of the
photographer as well
as another road which branches off to the left
of the first road. It is the
first road that
formed part of the registered servitude and not the
one that branches off to the left to which they referred as the
second road.
11] During
2000 the owner of the dominant tenement (the first respondent
in the Court
a
quo)
,
had leased his property to the second appellant and since that year
the latter had been in occupation of the property.
He
deposed that he had put a chain across the entrance to the second
road for his protection and for the protection of his workers.
He admits having dug a trench across that road and avers that he did
that for his own purposes.
12] He,
however, denies having ever interfered with the first road and
contends that the same remains
open for use in terms of the
registered servitude by all the owners of the adjoining properties
including the owner of the respondent’s
property.
13] In
her replying affidavit, while she conceded that annexure “D3”
may not correctly
depict the exact location of the servitude, she
contended that, at all material times, she had used what the
appellants termed
a second road to gain access to her property.
She submitted that she accordingly had a peaceful and undisturbed
possession
of the said road until she was unlawfully deprived of that
right by the appellants. She submitted that it did
not matter that, in her founding affidavit, she had based her claim
on the appellant’s interference with the exercise of
her right
over a registered servitude.
14] From
the papers filed in this matter it then became clear that the primary
issue for resolution
was whether, in her replying affidavit, the
respondent ought to have been permitted to insert facts which should
have been in her
founding affidavit.
15] It
is trite that :-
“……
.in
application proceedings the affidavits constitute not only the
pleadings but also the evidence…..”
[1]
and
therefore that an applicant should in his/her founding affidavit set
out sufficient facts to entitle him/her to a relief sought.
The general rule is accordingly that the Court will not permit the
applicant to insert facts in his/her replying affidavit which
should
have been set out in his/her founding affidavit. However, this rule,
like all general rules, is not without limitation.
As it
was stated in
Shephard
v Tuckers Land and Development Corporation (Pty) Ltd
[2]
“
This
is not however an absolute rule. It is not a law of Medes
and Persians. The Court has a discretion
to allow new
matter to remain in a replying affidavit……. This
indulgence, however, will only be allowed in special
or exceptional
circumstances.”
16] A
variety of factors can be taken into consideration by the Court when
exercising such a discretion.
What is of overriding
importance in the consideration of those factors is that the
applicant should not be permitted –
“…
..to
make a case in reply when no case at all was made out in the original
application. None is authority for
the proposition
that a totally defective application can be rectified in reply.
In my view it is essential for applicant
to make out a
prima
facie
case
in its founding affidavit.”
[3]
17] It
must, however, be emphasized that once such a discretion has been
exercised by a lower Court
the role of an Appeal Court becomes a
limited one. As once remarked by
de Villiers J
in
Kleynhans (supra) :-
“……
.once
such a discretion has been exercised in favour of an applicant a
Court of Appeal will only interfere when it comes to the
conclusion
that the Court
a
quo
has
not exercised its discretion judicially.”
[4]
17] One
of the factors which is usually found to be compelling in exercising
the discretion in applicant’s
favour in these matters is lack
of prejudice. In
Pienaar
v Thusano Foundation and another
[5]
Friedman AJP
formulated
the position as follows :-
“
Although
technically there may have been some new and vexatious matter the
second respondent was not prejudiced thereby …..”
18] Returning
to the facts of the present appeal, in exercising its discretion in
favour of the respondent
and in permitting the insertion of new facts
in her replying affidavit, the Court
a quo
made the following
remarks :-
“
It
was contended that it was the second road, not the servitude, that
was indeed closed off. It is clear from the papers
before
Court that it was indeed this closing of the second road which caused
the applicant to approach the Court in order to seek
relief and it is
clear that in all the opposition reference is made to this specific
road and the respondents are clearly aware
of which road forms the
subject/object of the application before Court.”
[6]
19] It
is therefore clear from this passage that the learned Magistrate gave
a rational basis for the
exercise of his discretion in respondent’s
favour and that this Court cannot find that he did not do so
judicially.
20] During
argument, it was not disputed that the respondent would use the
second road to gain access to
her property. The Court
a
quo
accordingly
correctly found that she was in peaceful and undisturbed possession
of that road. Mr.
Naidu’s
submission
that the respondent cannot rely on the
mandament
van spolie
by reason of the fact that she never had and could not have had the
exclusive use and enjoyment of the dominant tenement, is clearly
without merit. The issue was dealt with in
Nienaber
v Stuckey
[7]
where at 1055
Greenberg
JA
held
:-
“
On
the other hand there appears to be good reason for holding that
exclusiveness of possession is not an essential element.”
[8]
21] Finally,
that the servitudal rights, such as the right of way, can be
protected by means of a
mandament
van spolie
is now trite.
[9]
For
the aforegoing reasons I would dismiss the appeal with costs.
I AGREE
MNGUNI, J
It is so
ordered
MSIMANG, J
For the
Appellants:
Adv. K Naidu (instructed by Singh & Gharbaharan c/o K Ramkaran &
Co)
For the
Respondent:
Adv. A D Collingwood (instructed by S Parshotam & Company c/o
Shamola Dasrath)
Date
heard:
2 February 2009
C A V
Judgment delivered:
6 March 2009
[1]
Kleynhans v van der Westhuizen N.O. 1970(1)
SA 565 (O) at 568 E;
[2]
1978(1) SA 173 (W) er Nestadt J at 177 H –
178;
[3]
Per Broome J in Poseidon Agencies (Pty) Ltd v
African Coaling and Exporting Co (Durban) (Pty) Ltd and another
1980(1) SA
313 (D) at 315 – 316 A;
[4]
At 568 H;
[5]
1992(2) SA 552 at 577 I;
[6]
At page 136 of the record;
[7]
1946 AD 1049
;
[8]
See also Bon Quelle (Edms) Bpk v Munisipaliteit
van Otavi 1989(1) SA 508 at 513 B-D;
[9]
See Nienaber (supra) on Bon Quelle (supra).