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
>>
2006
>>
[2006] ZAFSHC 100
|
|
J S van der Watt Enterprises CC and Another v Vusani Property Investments (Pty) Ltd (2692/2006) [2006] ZAFSHC 100 (31 August 2006)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No. : 2692/2006
In
the matter between:
J S VAN DER WATT
INVESTMENTS CC
1
st
Applicant
HAJAREE
SUPERMARKET CC T/A
2
nd
Applicant
JABULA
WHOLESALERS
and
VUSANI
PROPERTY INVESTMENTS (PTY) LTD
Respondent
_____________________________________________________
HEARD
ON:
3
AUGUST 2006
_____________________________________________________
JUDGMENT
BY:
VAN
DER MERWE J
_____________________________________________________
DELIVERED
ON:
31
AUGUST 2006
_____________________________________________________
[1] This is an
application for a spoliation order. The application was launched on
an urgent basis on 22 June 2006, on which date
it was postponed to 3
August 2006 and an interim arrangement agreed upon between the legal
representatives of the parties was made
an order of court.
[2] Erf 140 and Erf 3406
are adjoining properties situated in the business area of
Odendaalsrus. The first applicant is the registered
owner of Erf
140. The second applicant is the tenant of a portion of the building
on Erf 140, from which it trades as Jabulani Wholesalers.
The
respondent is the registered owner of Erf 3406. Erf 3406 is improved
by a shopping centre.
[3] The portion of the
building on Erf 140 that houses the business of the second applicant
(âthe premisesâ), faces in the direction
of the boundary between
Erven 140 and 3406. There is an open space on Erf 140 between the
premises and the boundary between Erven
140 and 3406. Between this
boundary and the building on Erf 3406, on Erf 3406, there is also an
open space. Before the erection
of the palisade referred to below,
the said open spaces on Erven 140 and 3406 were connected so that
access could be obtained from
both Waterkant Street and Josias Street
over Erf 3406 to the open space on Erf 140 in front of the second
applicantâs business.
When reference is made herein to access to
Erf 140, it must be understood to mean access to this open space and
therefor to the
premises. Both parties adduced further evidence in
respect of the layout and features of these erven and the surrounding
area.
I find it unnecessary to refer to this evidence. This
evidence, for the most part, was adduced by the applicants in order
to show
why it happened or is necessary to gain access to Erf 140
over Erf 3406 and by the respondent to show that alternative access
routes
are available. I consider both aspects to be irrelevant to
the issues to be decided in this case.
[4] The application
pertains specifically to the aforesaid open space on Erf 3406. It is
common cause that the respondent erected
a palisade on Erf 3406 along
the whole of the boundary between Erven 140 and 3406. It is also
clear that this palisade prevents
access to Erf 140 from Waterkant
Street and Josias Street over Erf 3406. A gate was also installed at
the entrance to Erf 3406 from
Waterkant Street. This gate can of
course be opened if need be.
[5] The applicants rely
on the
mandament
van spolie
.
It is trite that the main purpose of the
mandament
van spolie
is to preserve public order by restraining persons from taking the
law into their own hands or to exercise self-help. The
mandament
van spolie
is available to a person whose possession of a thing was interfered
with or disturbed without due process. The essence of the remedy
is
that the possession deprived or disturbed must first be restored
before the merits of the case will be considered. The remedy
is also
available in cases of disturbance of quasi-possession of an
incorporeal such as a servitude. In case of a servitude, the
actual
use of an alleged servitude is equated to possession of a corporeal
thing. See
BON
QUELLE (EDMS) BPK v MUNISIPALITEIT VAN OTAVI
1989 (1) SA 508
(AD) at 514 H and further. Further, as was lucidly
pointed out by Thirion J in
ZULU
v MINISTER OF WORKS, KWAZULU, AND OTHERS
1992 (1) SA 181
(D), the
mandement
van spolie
is not concerned with the protection or restoration of rights at all
but its aim is to restore factual possession which has been
unlawfully deprived. Therefore, protection given by the
mandement
van spolie
cannot be extended to the exercise of rights in the widest sense.
See also
TELKOM
SA LTD v XSINET (PTY) LTD
2003 (5) SA 309
(SCA) at 313 â 314. The question for decision
therefore is whether the applicants have established the actual or
factual exercise
of an alleged servitutal right in respect of Erf
3406.
[6] The first applicant
is the registered owner of Erf 140 since 1971. The first applicant
says that at least since 1971 and therefore
for an uninterrupted
period of more than 30 years, a business was operated from the
premises. The further evidence of the first
applicant is that at all
times during this period the members and/or employees of these
successive occupiers and/or tenants of the
premises, as well as their
customers and suppliers, factually made use of Erf 3406 to gain
access to Erf 140 from both Waterkant
Street and Josias Street.
Suppliers drove trucks over Erf 3406 to the open space on Erf 140 in
front of the business in order to
make deliveries. Customers on foot
and per vehicle similarly moved over Erf 3406 to the open space on
Erf 140. It is also stated
that customers of the business over these
years not only parked their vehicles on the open space in front of
the business on Erf
140, but also parked their vehicles on the open
space on Erf 3406. All of this, according to the evidence adduced on
behalf of the
applicants, took place for an uninterrupted period of
more than 30 years up to the construction of the palisade by the
respondent.
[7] The respondent
purchased Erf 3406 during July 2005 and became the registered owner
thereof on 2 June 2006. The respondent vehemently
denied, as it is
wont to do, that the applicants at any stage had any possession of
any portion of Erf 3406 and that the applicants
established any right
in respect of Erf 3406. Save in respect of the question of parking
by customers on Erf 3406, to which I will
revert, it is not the case
of the applicants that they exercised possession of Erf 3406
per
se
, but
that they made use of a right of way. As pointed out already, it is
not required of the applicants to prove a right of way
proper, but
only that there was actual exercise of an alleged right of way. In
respect hereof, the Operations Manager of the shopping
centre on Erf
3406 since 1994 who deposed to an affidavit on behalf of the
respondent, in fact confirmed that the applicantsâ delivery
trucks
passed over Erf 3406. Apart from this, the evidence of the
applicants that actual or factual use was made of an alleged right
of
way was met at most, with bare denials. In these circumstances, in
my judgment, there is no
bona
fide
dispute of fact in respect of the aforesaid averments of the
applicants.
[8] In my view the
applicants did not establish any possession or quasi-possession in
respect of Erf 3406 consisting of the parking
of customers on Erf
3406. I am, however, convinced that the first applicant established
such quasi-possession consisting of factual
use of an alleged
praedial servitude from both Waterkant Street and Josias Street over
Erf 3406 in favour of Erf 140 at least through
the occupiers or
tenants of the premises which occupiers and/or tenants in turn made
such use through their members and/or employees
and invitees, such as
customers and suppliers. This use took place with vehicles as well
as on foot. I accordingly find that the
first applicant made a case
for reliance on the
mandement
van spolie
.
[9] In respect of the
second applicant, I find the following passage in
The
Law of South Africa
,
Vol. 27, First Reissue, p. 183, para 266 persuasive:
â
In cases of indirect possession the
question may arise in future whether the direct possessor and the
person exercising indirect possession
through another should not both
be entitled to a mandament van spolie. Where physical control is
exercised on behalf of a master
or employer by a servant or an
employee, the courts have decided that only the master or the
employer can institute the mandament.
What, however, about the case
where the direct possessor such as an agent of a lessee who exercises
control on behalf of a principal
or a lessor does in fact have the
intention of deriving some benefit from the thing? In this case it
is submitted that both the
direct and the indirect possessor should
in principle be entitled to the mandament.â
See also
PAINTER
v STRAUSS
1951 (3) SA 307
(O) at 313 H â 314 A and
MBUKU
v MDINWA
1982 (1) SA 219
(TSC) at 222. On the evidence I am satisfied that
the second applicant not only exercised the alleged right of way on
behalf of
the owner of Erf 140, but also with the intention of
deriving at least some benefit for itself.
[10] Paragraph 2.3 of the
Notice of Motion is couched in the form of a prohibitory interdict.
Counsel for the applicants conceded,
correctly in my view, that that
prayer could or should not be granted. Prayers 2.1 and 2.2 of the
Notice of Motion should be limited
to restoration of possession of
right of way in accordance with this judgment.
[11] For these reasons
the following orders are made:
1. The respondent is
ordered to forthwith restore to the first applicant and the second
applicant peaceful and undisturbed possession
of right of way over
Erf 3406 in favour of Erf 140, Odendaalsrus.
2. The respondent is
ordered to forthwith remove the palisade erected along the boundary
between Erven 140 and 3406 in order to restore
to the first and
second applicants peaceful and undisturbed possession and use of
right of way over Erf 3406 in favour of Erf 140,
Odendaalsrus.
3. The respondent is
ordered to pay the costs of the application, including the costs of
22 June 2006.
________________________
C.H.G. VAN DER MERWE,
J
On
behalf of the applicants: Adv. N. Snellenburg
Instructed
by:
Naudes
BLOEMFONTEIN
On behalf of the
respondent: Adv. S. Liebenberg
Instructed by:
McIntyre
& Van der Post
BLOEMFONTEIN
/sp