Beukes and Others v Woermann (APPEAL 281 of 2011) [2012] NAHC 88 (27 March 2012)

Beukes and Others v Woermann (APPEAL 281 of 2011) [2012] NAHC 88 (27 March 2012)

Applicants failed to prove they were in peaceful and undisturbed possession of the route at the time of the alleged spoliation. The evidence showed that access was controlled by others, and applicants had not had unimpeded access for years. Without possession, the first requirement for the mandament van spolie was not met, and the application was dismissed.

Citation
[2012] NAHC 88
Parties
Applicant: Bernard Beukes; Applicant: Ursula Beukes; Applicant: Jafeth Uiras; Applicant: Elsie Uiras; Applicant: Vineul Beukes; Applicant: Hans Kamuhanga; Applicant: Margaretha Kamuhanga; Applicant: Gottfried Beukes; Applicant: Erna Beukes; Applicant: Lizelotte Beukes; Applicant: Maria Beukes; Applicant: Theodore Gaib; Applicant: Engelbertha Gaib; Applicant: Christina Beukes; Respondent: Jesko Woermann
Court
High Court
Jurisdiction
Namibia
Judgment Date
27 March 2012
Case Number
APPEAL 281 of 2011
Procedural Posture
Civil Application / Judgment on Urgent Application for Mandament Van Spolie
Outcome
Application dismissed with costs.
Legal Topics
Mandament Van Spolie, Possession, Servitude, Urgent Applications
Source Language
English
Property Law Civil Procedure Mandament Van Spolie Possession Servitude Urgent Applications

Case Brief

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Parties

Bernard Beukes

Applicant

Ursula Beukes

Applicant

Jafeth Uiras

Applicant

Elsie Uiras

Applicant

Vineul Beukes

Applicant

Hans Kamuhanga

Applicant

Margaretha Kamuhanga

Applicant

Gottfried Beukes

Applicant

Erna Beukes

Applicant

Lizelotte Beukes

Applicant

Maria Beukes

Applicant

Theodore Gaib

Applicant

Engelbertha Gaib

Applicant

Christina Beukes

Applicant

Jesko Woermann

Respondent

Procedural Posture

Civil Application / Judgment on Urgent Application for Mandament Van Spolie

Legal Issues

  1. 1 Whether applicants were in peaceful and undisturbed possession of the route at the time of alleged spoliation
  2. 2 Whether the mandament van spolie is available for the restoration of quasi-possession of a right of way
  3. 3 Whether urgency was self-created by the applicants

Ratio Decidendi

Applicants failed to prove they were in peaceful and undisturbed possession of the route at the time of the alleged spoliation. The evidence showed that access was controlled by others, and applicants had not had unimpeded access for years. Without possession, the first requirement for the mandament van spolie was not met, and the application was dismissed.

Court Disposition

Application dismissed with costs.

Orders

  • Application dismissed with costs, including costs of one instructing and one instructed counsel.
  • Costs include the hearings on 11 and 24 November 2011.