IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN
Case No: 2026-018209
In the matter between:
EMILY MOON RIVER LODGE (PTY) LTD Applicant
and
EXL CONSULTING (PTY) LTD Respondent
Reportable / Not reportable
Coram: Anderssen AJ
Heard: 23 February 2026
Delivered: Electronically on 24 February 2026
Summary: Mandament van spolie – unlawful dispossession not established –
review application does not suspend operation of administrative decision –
obligation to limit the practical consequences of the challenged action as far as
possible, met.
Interim interdict – prima facie right established – other requirements met.
ORDER
1. The application for a mandament van spolie is dismissed.
2. Pending –
2.1 the determination of the review application launched by the
applicant under case number 219045/2025, against the Provincial
Minister of Infrastructure, Western Cape Government (as first
respondent), the respondent (as second respondent) and five
other parties (as third to seventh respondents), for the review and
setting aside of the Minister’s decision to close Minor Road
OP07233 (“the Road”); and
2.2 the determination of the applicant’s claim for a way of necessity
over the respondent’s property, Portion 13 of the Farm Hangklip,
No. 305;
the respondent is restrained and prohibited from (a) interfering with the
applicant’s use of the Road, for the purpose of conducting the business of
Emily Moon River Lodge on the applicant’s property, Portion 2 of the Farm
Mallard No. 445, and (b) doing anything which might inhibit or limit the
applicant’s use of the Road.
3. The applicant is directed to institute proceedings against the respondent
for a declaratory order, provisionally to the extent that it may be necessary,
that the applicant is entitled to a way of necessity over Portion 2, which
proceedings must be instituted within one (1) calendar month after the
granting of this order.
4. There shall be no order as to costs.
JUDGMENT
Introduction
[1] This application for a mandament van spolie , alternatively , a temporary
prohibitory interdict, was launched as an urgent application on 29 January
2026 and set down for hearing on 30 January 2026 . In light of the short
notice to it, the respondent (“ EXL”) reluctantly consented to an order with
interim operation and the matter came before me some three weeks later
with the leave of the Judge President.
[2] EXL has complained that the matter is not urgent and that any urgency has
been self -created by the appl icant (“ Emily Moon ”) as it knew of the
Minister’s decision in June 2025 and instituted review proceedings in
November 2025. I did not agree, as the first time that Emily Moon became
aware that it would be denied access to the Road, which is the subject
matter of this application, was via email on 19 January 2026. Emily Moon’s
attorney replied to th is email on 20 January 2026 seeking an undertaking
from EXL by close of business on Friday, the 23rd. When no reply was
received by the deadline, he followed up with a phone call on the Monday.
A reply was delivered at 12h13 on the 27 th refusing the undertaking sought
and EXL commenced erecting a gate on its property, which would
effectively close Emily Moon’s access to the Road, on the same day. As
Emily Moon had contracted to host a wedding on 31 January 2026, it
needed urgent access to its wedding venue, via the Road, the following
day.
[3] The undisputed facts are briefly summarised in the following paragraphs.
[4] Emily Moon is the registered owner of Portion 2 of the Farm Mallard No
445 (“Portion 2 ”). EXL is the registered owner of Portion 13 of the Farm
Hangklip No 305 (“ Portion 13”). Portion 2 and Portion 13 are adjacent and
situate in the Bitou River Valley near Plettenberg Bay. Portion 2 abuts the
Bitou Estuary, and Portion 13 abuts the riverbanks of the Bitou River on
three boundaries. The subject -matter of this application is a former public
road, known as Minor Road OP07233 (“ the Road ”). The Road provides
access to Portion 13 from the Rietvle i Road, which, in turn, joins the N2
highway between Plettenberg Bay and Keurbooms River. A part of the
south-eastern boundary of Portion 2 abuts the Road. At the point where
the Road veers away from Portion 2’s boundary, it enters and traverses
Portion 13 until it reaches the riverbank. Emily Moon has, in the past, used
a part of the Road that traverses Portion 13 to reach the northern lower -
lying part of its property on the bank of the Bitou River. Between the
southern and northern part of its property th ere is a steep embankment
slope. The near vertical rise from the lower northern portion to the higher
southern portion is approximately 15 meters.
[5] Emily Moon conducts a hotel / guest lodge business , which includes
destination weddings. The wedding venu es include a function venue on
the southern part of the property where a lodge and certain luxury chalets
are also situated. It also includes a ceremony venue, called the River
Deck, on the northern p art of the property. A sewerage plant that services
the property is also situated on the lower-lying northern part.
[6] In July 2019 , EXL applied to the Department of Infrastructure, Western
Cape Government for the de -proclamation of the Road from the point
where it intersects the southern boundary of Portion 1 3 to where it
intersects the eastern boundary. Following a public participation process,
the Minister of Infrastructure of the Western Cape Government (“ the
Minister”) approved EXL’s application and announced his decision in the
Provincial Gazette on 6 June 2025. EXL had applied to have the Road
closed to enable it to construct a dwelling house in the south -western
corner of Portion 13. This site is partially on the road reserve (which is 20
metres wide) and parti ally against a slope that rises up to the common
boundary between Portion 2 and Portion 13. It also happens to be the only
available location on Portion 13 where a dwelling can be constructed as
Portion 13 is located in the Bitou Wetlands. Most of the land , except this
one site, is regularly flooded due to tidal changes in the Bitou River as well
as flooding during heavy rains.
[7] The Municipal Manager of the Garden Route District Municipality was
informed of the Minister’s decision on 22 July 2025 by the Deputy Director-
General: Transport Infrastructure (“ the DDG ”). In this letter the DDG
recorded that the Minister had attached certain conditions to his approval
of the de -proclamation of the Road , which included that the Road be
converted into a public rig ht of way servitude for pedestrian access.
Paragraph 11 of the letter recorded that the servitude must be registered
within 12 months from the date of the letter and that, in the meantime, no
gates or any other obstructions may be erected across the road reserve.
[8] By then, and as early as 19 June 2025 , Mr Cope (the husband of EXL’s
sole director) had sent a WhatsApp message to one of Emily Moon’s
shareholders that EXL would permit Emily Moon to continue to use the
Road when required. This was confirmed i n a subsequent telephonic
discussion between Mr Cope and Mr Olivier on behalf of Emily Moon. On
17 November 2025, Emily Moon launched an application , in terms of
section 6(2)(e)(iii) of PAJA, for the review and setting aside of the
Minister’s decision to c lose the Road. The Minister, EXL and five other
interested parties are cited therein. EXL has filed a notice of its intention to
oppose but has not, as yet, filed an answering affidavit. The Minister
recently informed the parties that he would abide the court’s decision.
[9] Notwithstanding the pending review application, EXL caused a servitude to
be registered against the tile deed of Portion 13 in compliance of the
Minister’s directive on 17 December 2025. Although the letter from the
DDG recorded that the Coastal Management Branch (“ the CM ”)
recommended that EXL should discuss the conversion of the Road into a
public right of way with a local community forum (“the PBCEF”), no such
consultation took place. No notice of the registration of the servi tude was
given to either Emily Moon or the PBCEF. The email from EXL to Emily
Moon on 19 January 2026 was also silent as to the registration of the
servitude. It merely referenced the promulgation in the Gazette when
informing Emily Moon that “ vehicular tr affic from and related to your
company and in your personal capacity is no longer allowed as of today’s
date. Any vehicular access required must be negotiated with the owner of
the land and agreed in writing before access is granted. ” It was only on 26
January 2026, during a telephone call between the parties’ attorneys, that
the PBCEF and Emily Moon learned that the servitude had been
registered.
[10] Emily Moon, with no knowledge of the registration of the servitude, on 20
January 2026 demanded that EX L must continue to allow them
undisturbed vehicular access along the Road pending the determination of
the review application. EXL refused to provide the undertaking sought and,
on 27 January 2026, informed Emily Moon that an administrative decision
was ta ken, which remains valid until reviewed and set aside by a
competent court , and that EXL had complied with the requirement to
register the servitude. EXL has since erected a gate across the road,
although the gate is not locked and access is still possible to the Road in
terms of the interim order granted on 30 January 2026.
The relief sought in terms of the mandament van spolie
[11] It is trite that the mandament van spolie serves as a tool for promoting the
rule of law and as a disincentive against self -help. Mr Cutler readily, and
rightly, conceded that the mandament van spolie is available for the
restoration of a quasi-possessio of certain rights, such as the right of
access to and the use of a road.
[12] The first requirement for a spoliation order is possession. Emily Moon
alleges that it uses the Road on a regular basis in order to conduct its
business activities. This includes the hosting of weddings, of which the
River Deck on the norther n lower-lying part of its land is an important part
as it is the venue for its ceremonies. Emily Moon uses the Road to gain
vehicular access to this venue to prepare it for wedding ceremonies and
the bride is also transported to the venue in a car. It also uses the Road to
gain access to t he sewerage plant situated on the lower -lying portion in
order to clean and maintain it. From time to time the Municipality’s waste
trucks also need access to the plant.
[13] EXL does not admit the use of the Road in the manner and to the extent
alleged by Emily Moon . Mrs Cope recorded seeing a waste truck on one
occasion only in the last several months. It has denied that Emily Moon
uses the Road on a regular basis. I do not think the extent to which Emily
Moon uses the Road matters. It is sufficient, to establish possession, that
Emily Moon uses the Road. And there is no doubt that EXL was aware of
Emily Moon’s use of the Road in light of the content of Mr Cope’s
WhatsApp to a shareholder of Emily Moon on 19 June 2025, the terms of
the telephonic discussion between Mr Cope and Mr Olivier that followed
this WhatsApp, and the content of the 19 January 2026 email. These facts
are not disputed by EXL.
[14] That leaves the second requirement for a spoliation order . Emily Moon
contends that the communication of 19 January 2026 amounts to the
unlawful deprivation by EXL of its quasi-possessio of the right to use the
Road. EXL denies, in the first instance, that the content of the email
amounted to dispossession as it had, in the same email, invited Emily
Moon to negotiate vehicular access with it and undertook to grant access if
agreed to in writing prior to the access. I am not persuaded by this
argument. The quasi-possessio of the right lies in the actual exercise of an
alleged right.1 Emily Moon had, in the past, had free and unfettered access
to the Road. A promise to negotiate and allow future access does not allow
for the same free access, particularly when EXL has disp uted the extent of
Emily Moon’s past use of the Road and the need for it to use the Road to
the same extent in the future.
1 Firstrand Ltd t/a Rand Merchant Bank v Scholtz N.O. 2008 (2) SA 504 (SCA) at par [12].
[15] EXL, secondly, also denies that its actions were unlawful as it contends
that due legal process was followed. There can be no do ubt that the
decision to close the Road to vehicular traffic, to erect a gate to ensure that
closure, and to control access to the Road thereafter, was against the
consent of Emily Moon. The narrow issue is whether EXL’s actions were
unlawful. It says ‘not’ as it had applied for the de-proclamation of the Road,
and its application was granted subject to the condition of the registration
of a servitude. Having registered the servitude, it acted lawfully in taking
steps to close the Road. Emily Moon had been afforded participation in the
application process and had availed itself of the opportunity to make
objections and representations to the Minister , which the Minister
considered but rejected.
[16] On the other hand, Emily Moon, relying on Ntshwagela v Cha irman,
Western Cape Regional Services Council ,2 contends that the
deprivation of possession was without due process of law . The passage
reads as follows:
“This Court must insist on observance of the principle that a person in possession
of property, howe ver unlawful his possession may be and however exposed he
may be to ejectment proceedings, cannot be interfered with in his possession
except by due process of law.”
What was expected of EXL , according to this argument, is to have
preserved the status quo pending the review and to have obtained the
court’s leave if it wished to prohibit Emily Moon its continued free and
unfettered use of the Road. Because it did not, the dispossession is
unlawful as it was without the consent of the person deprived of
2 1988 (3) SA 218 (CPD) at 225G-H.
possession and without due process of law.
[17] I turn to the other authorities referred to by Mr Vivier SC . In Ntshwagela
the applicants had lived in shacks on the land until a removal operation
was mounted at the instigation of the respondents with the assistance of
the police and the applicants – among others – were moved to a township.
[18] In Stocks Housing (Cape) (Pty) Ltd v Chief Executive Director,
Department of Education and Culture Services3 the applicant, who had
been given occupation of a building site on 8 December 1993 , on which
site a school for the respondents were to be erected, had on 11 November
1994 been notified via letter that it had one hour to vacate the site a s their
contract with the respondents had been terminated. The court held that the
clear inference from the facts was that the officials of the department
sought to effect the repossession of the site by sudden manoeuvre rather
than by collaboration and consent.
“The element of unlawfulness of the dispossession which must be shown in order
to claim a spoliation order relates to the manner in which the dispossession took
place, not to the alleged title or right of the spoliator to claim possession.”
[19] In Wightman t/a JW Construction v Headfour (Pty) Ltd and Another 4
the SCA held that v iolence or fraud is not an essential element of
dispossession, provided the act is done against the consent of the person
despoiled and illicitly . In this context 'illicitly' is understood to mean “in a
manner which the law will not countenance .” The appellant was a building
contractor who had entered into an agreement with the first respondent to
perform certain construction work on the first responden t's property. When
3 1996 (4) SA 231 (C) at 241J-242A/B and 240C-D.
4 2008 (3) SA 371 (SCA) at par [27].
a dispute arose between the parties, the respondent engaged other
contractors to complete the work and, using the duplicate keys delivered to
him by the appellant, provided the new contractors with access to the
premises. When the appe llant thereafter arrived at the premises, he was
refused access.
[20] It is evident from the facts of the cases quoted above that, in each case,
the spoliator had taken steps dispossessing the applicant without recourse
to the law. The facts in casu differ. EXL had followed due legal process by
making application to the relevant authorities to have the Road de -
proclamated. The Minister’s decision was announced in the Provincial
Gazette. The condition imposed by the Minister (the registration of a
servitude) was met by EXL. It was only after the servitude was registered
that EXL took steps to close the Road.
[21] Emily Moon has complained that the registration took place clandestinely
and in a mala fide manner as EXL had neither consulted with the PBCEF
(as CM had recommended) nor notified Emily Moon or the PBCEF that it
was taking steps to register the servitude. Even if this is so, and I am not
persuaded that it is, I do not believe that EXL , by taking these steps, acted
in a manner that cannot be countenanced by law. Mr Vivier SC conceded
that the Minister’s recommendation of consultation is not legally binding on
EXL. The thrust of his argument was that the launching of the review
application requires all parties, including EXL, to respect the pending lega l
process and, as far as reasonably possible, to limit the practical
consequences of the challenged action. For this argument he relied on the
Pikoli-judgment.5
[22] In answer Mr Cutler directed my attention to OUTA6 where the
Constitutional Court dealt with the granting of temporary restraining orders
against the exercise of statutory power. The relevant passage is:
[50] Under the Setlogelo test the prima facie right a claimant must establish is not
merely the right to approach a court in order to review an administrative decision.
It is a right to which, if not protected by an interdict, irreparable harm would
ensue. An interdict is meant to prevent future conduct a nd not decisions already
made. Quite apart from the right to review and to set aside impugned decisions,
the applicants should have demonstrated a prima facie right that is threatened by
an impending or imminent irreparable harm. The right to review the im pugned
decisions did not require any preservation pendente lite.
[23] I am not persuaded by the argument that OUTA has overtaken Pikoli. The
above passage relates to the test for establishing a prima facie right and
the requirement of irreparable harm in i nterdict proceedings. The reliance
on Pikoli is here within the context of the mandament van spolie . In the
Pikoli-matter the court described the state of uncertainty that exists
pending finalisation of review proceedings (and the obligations that may
therefore be imposed on the parties) as follows:
“When there is a serious challenge to the validity of the purported exercise of
public power, a state of uncertainty necessarily follows: On the one hand the
action is treated as if it were valid until declared invalid. On the other hand the
practical consequences of the action may turn out to be invalid, as well. For that
reason the law requires of all concerned to respect the pending legal process
and, as far as is reasonably possible, to limit the practical consequences of the
challenged action, 'in appropriate circumstances . . . an authority should . . . halt
its actions when it is aware that review proceedings are to be instituted against it.
its actions when it is aware that review proceedings are to be instituted against it.
Failure to do so may render the official concerned liable for contempt of court.’”
[24] These remarks should be considered against section 18(1) of the Superior
Courts Act, which records that the operation and execution of a decision ,
5 Pikoli v President of the Republic of South Africa and Others 2010 (1) SA 400 (GNP) at
408E-F.
6 National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6)
SA 223 (CC) at par [50].
which is the subject of an application for leave to appeal , is suspended
pending the decision of the application or the appeal. An applicant in
review proceedings does not have the same advantage.
[25] The issue is whether EXL acted unlawfully “in a manner which the law will
not countenance”. I have considered the following:
[25.1] Unless and until the review application succeeds and the Minister’s
decision is set aside, the decision is treated as if it were valid . EXL
was under an obligation to cause the servitude to be registered
before 21 July 2026 in terms of the DDG’s letter. Thus, until the
decision is set aside, EXL was, and is, legally entitled to close the
Road.
[25.2] If the Minister’s decision is set aside, the practical consequences
of the action may, however, turn out to be invalid (although it does
not follow that it automatically is). If the Minister’s decision is not
set aside, then Emily Moon will not have the right to continue using
the Road, irrespective of its past quasi-possessio of this right.
[25.3] EXL did not simply close the Road – it extended an olive branch
and offered to negotiate future vehicular access. It did therefore as
far as is reasonably possible, try to limit the practical
consequences of the challenged action. Finally, I consider it a step
too far to require EXL, who has a legally binding decision from the
Minister obtained after due process , to a pproach a court and to
seek interdictory or other relief against Emily Moon.
[26] I have thus not been persuaded that, on a balance of probabilities, EXL’s
actions were unlawful. As such the application for a mandament van spolie
must fail.
The temporary interdict sought by the applicant
[27] It is trite that a temporary interdict may be granted pending an application
for review of administrative action. To succeed, Emily Moon must
persuade the court that is has a prima facie right, that there is a
reasonable apprehension of irreparable harm if the interdict is not granted,
that the balance of convenience favours the granting of the interdict and
that it has no other satisfactory remedy.
[28] EXL is disputing Emily Moon’s enti tlement to the relief sought, in the main,
by disputing the allegation that it has a prima facie right. In this regard its
argument is two -fold. Firstly, it submits that Emily Moon has failed to
establish prospects of success in the review. Secondly, it su bmits that the
relief sought constitutes a brutum fulmen as it would not be practically
enforceable for the stated purpose – Emily Moon and its guests would not
be able to reach the venue or the sewerage plant without trespassing on
EXL’s land as the Road does not pass through to the northern part of
Portion 2 but, instead, curves away.
[29] The nature of the prima facie right that an applicant has to prove in these
circumstances was described by the court in Pikoli as follows:
“… the applicant had to show that he has at least a prima facie right, though it
might be open to some doubt, to the relief he seeks in the main application, that
is, to review and set aside the decision to remove him from office. In other words,
the applicant had on a prima facie bas is to prove facts that establish that his
removal from office was unlawful and therefore subject to be reviewed and set
aside”
[30] Emily Moon is challenging the Minister’s decision in terms of section
6(2)(e)(iii) of PAJA on the basis that the Minister co nsidered irrelevant
considerations or failed to consider relevant considerations. The essential
premise of EXL’s application to the Minister was that the Road does not
exist because it had been damaged in the Laingsburg floods 30 years ago,
and that there is no need for the public to make use of the Road as it
terminates at the Bi tou River. As the first statement is patently incorrect
and the second statement is a distortion of the truth, Emily Moon contends
that it has established a prima facie right to th e relief sought on review .
The correct facts are that Emily Moon has, for the past 18 years, been
using the Road to gain access to the lower -lying northern part of its
property for various purposes. It did so as there is a steep embankment
between the sout hern and northern parts. And it is not possible to gain
access, by vehicle, from the higher p art to the lower p art given the steep
slope and the geographical features thereof, i.e. dense vegetation and
rocky terrain.
[31] This last averment was disputed by EXL who contended that there is an
existing road network on Portion 2 and that Emily Moon has not explained
why it cannot use the existing network or improve same to provide access
to the wedding venue and the sewerage pl ant. During the hearing Mr
Cutler sought to bolster this point with reference to EXL1 to the answering
affidavit. As the author of the wording on the white blocks that appear on
EXL1 has not been identified, I do not place any value on these
submissions. For purposes of establishing a prima facie right I also do not
believe that it is necessary to determine, at this stage, the factual accuracy
of the averment by Emily Moon.
[31] Mr Cutler referred me to several cases, including Spur Steak Ranches 7
and OUTA in support of his argument. In summary, he argues that Emily
Moon has pinned its colours to a narrow mast in that the review application
relies on a single statutory ground. Emily Moon complains that the Minister
was misled by EXL, whilst conceding that its objections had been placed
before the Minister. The DDG’s letter expressly records that the objections
during the first and second public participation processes had been
submitted to the Minister (paragraph 2) and that the Minister took its
decision “having reviewed all the objections received ” (paragraph 3). The
Minister correctly found that none of the properties abutting the subject
portion of the Road are landlocked and that only Portion 13 would be
directly impacted (paragraph 4). Furthermore, Emily Moon is faced with the
praesumptio omnia rite esse acta (all things are presumed to have been
done correctly) and this poses a significant hurdle to its review.
[32] I am not persuaded by Mr Cutler’s argument. The presumption is
rebuttable and the author of the letter on which he relies was not the
Minister but the DDG. Applying the approach set out in Spur Steak
Ranches, I must take the facts set out by the applicant, together with the
facts set out by the respondent that the applicant cannot dispute and I
must then consider whether, having regard to the inherent probabilities
Emily Moon should, not could, obtain final relief in the review proceedings.
[33] The facts set out by Emily Moon (and which cannot be disputed by EXL as
it arises from the report submitted on its behalf to the Minister), are that
EXL’s representative had informed the Minister in its application that the
7 Spur Steak Ranches Ltd v Saddles Steak Ranch, Claremont 1996 (3) SA 706 (C).
Laingsburg flooding had done permanent damage to the Road, that the
Road has been in disuse due to the damages caused by the flood s and
that there is no need for the Road as its sole purpose is to provide access
to the subject property (Portion 13). These recorded facts are patently
incorrect. EXL admitted that Emily Moon has been using the road to gain
access to the lower -lying northern part of Portion 2 as appears from the
WhatsApp, telephone call and email referred to above. It did not explain in
the answering affidavit why these incorrect facts appeared in the
application. The singular fact set out by EXL is that Emily Moon does not
need to use the Road to gain access to the lower -lying part. Emily Moon
has consistently denied this.
[34] I am strengthened in my conclusion that Emily Moon has established a
prima facie right, though open to some doubt, by the c ontent of the DDG’s
letter. Although mention is made that objections were received, the
sources of the objections and the content thereof were not disclosed. The
letter recorded issues raised by CM but no other objection was identified or
discussed. The co nsiderations listed in the letter appear to be factually
incorrect and/or incomplete.
[32] Finally, I must consider the possible trespass offence that has been raised
by EXL. Emily Moon has expressed the view that the link between the
Road and the northern part of Portion 2 is part of the road reserve. No
supporting evidence has been provided. What is, however, indisputable is
that Emily Moon has been potentially trespassing on Portion 13’s land for
many years and that EXL has acquiesced in that potential trespass. In light
of Emily Moon’s stated intention of instituting proceedings for a via ex
necessitate, I do not consider the possible brutum fulmen to be a bar to the
relief sought.
[33] EXL is also disputing that Emily Moon has established the remaining
requirements for interim relief . I do not agree with the averment that Emily
Moon has not alleged (or established) irreparable harm. The test is
whether Emily Moon has a well -grounded apprehension that it will suffer
irreparable harm if the interim relief is not granted and the ultimate relief is
granted. The facts put forward by Emily Moon is that it cannot gain
vehicular access to the northern part of Portion 2 except via the Road, it
needs to have vehicular access to use the River Deck and to repair and
maintain the sewerage plant, the northern part of Portion 2 is landlocked
and the Road is its only access thereto, the income from weddings is
substantial and the closure of the Road would have a substantial and
adverse impact on the profitability of its business. It is in this context that I
must consider OUTA and determine whether Emily Moon, having
demonstrated a prima facie right that is threatened by an impending act ,
will suffer irreparable harm. In my view the right to review the impugned
decision d oes, in this instance, require a preservation of the status quo
pendente lite. Should the ultimate relief be granted, but the interim relief is
not granted, Emily Moon has a well-grounded apprehension of irreparable
harm.
[34] The balance of convenience also favours Emily Moon. It had historically
had access to the Road and had used it. This cannot seriously be disputed
by EXL. Emily Moon avers that it cannot gain vehic ular access to the
northern part of Portion 2 without using the Road. I am not persuaded that
Emily Moon had an obligation to consider and put forth other options, such
as expanding its existing network of roads or building a new road for
purposed of an in terim interdict. I t s tated unequivocally that vehicular
access to that part of its land (other than via the Road) is impossible
because of the embankment and other geographical features. EXL can
satisfy its need to secure its land and for security against third party entry
by retaining the gate that is closing off access to vehicles whilst providing
Emily Moon with access codes. Any offence caused by trespass on Portion
13, to the extent that there is trespass, can be addressed in the way of
necessity proce edings I am directing Emily Moon to institute. There is
clearly also no other satisfactory remedy available to Emily Moon as it may
face substantial (and difficult to quantify) financial and reputational loss if
the interim relief is not granted.
Costs
[35] The ordinarily rule is that the successful party is entitled to its costs. In this
matter, however, I have found against the applicant in respect of the
mandament van spolie and for the applicant in the interim interdict
application. As such I am not prepared to mulct either party in costs.
[36] The order is recorded above.
__________________________
ANDERSSEN J S
Acting Judge of the High Court
Appearances:
For the applicant: Adv P de B Vivier SC
Instructed by Enderstein Malumbete Inc
For the respondent: Adv C Cutler
Instructed by: Doyer & Doyer Attorneys