Three Musketeers Properties (Pty) Ltd and Another v Ongopolo Mining and Processing Ltd and Others (SA 3 of 2007) [2008] NASC 15 (28 October 2008)

Three Musketeers Properties (Pty) Ltd and Another v Ongopolo Mining and Processing Ltd and Others (SA 3 of 2007) [2008] NASC 15 (28 October 2008)

The court found that the appellants were not deprived of possession of the area or their property, but only of the opportunity to block access to gate 2. There was joint possession of the Tschudi Mining Area, and respondents' actions constituted lawful counter-spoliation, not spoliation. The relief sought was not justified, and referral to oral evidence was unnecessary.

Citation
[2008] NASC 15
Parties
Appellant: The Three Musketeers Properties (Pty) Ltd; Appellant: Pretorius and Neethling Partnership; Respondent: Ongopolo Mining and Processing Ltd; Respondent: Ongopolo Mining Ltd; Respondent: Ongopolo Prospecting Ltd
Court
Supreme Court
Jurisdiction
Namibia
Judgment Date
28 October 2008
Case Number
SA 3 of 2007
Procedural Posture
Civil Appeal / Final Appellate Judgment
Outcome
appeal dismissed with costs
Legal Topics
Spoliation, Counter Spoliation, Joint Possession, Mining Rights, Mandament Van Spolie
Source Language
English
Property Law Civil Procedure Spoliation Counter Spoliation Joint Possession Mining Rights Mandament Van Spolie

Case Brief

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Parties

The Three Musketeers Properties (Pty) Ltd

Appellant

Pretorius and Neethling Partnership

Appellant

Ongopolo Mining and Processing Ltd

Respondent

Ongopolo Mining Ltd

Respondent

Ongopolo Prospecting Ltd

Respondent

Procedural Posture

Civil Appeal / Final Appellate Judgment

Legal Issues

  1. 1 Whether the appellants were unlawfully dispossessed of possession of the Tschudi Mining Area or the site adjacent to gate 2.
  2. 2 Whether the respondents' actions constituted spoliation or lawful counter-spoliation.
  3. 3 Whether there was joint possession of the Tschudi Mining Area.

Ratio Decidendi

The court found that the appellants were not deprived of possession of the area or their property, but only of the opportunity to block access to gate 2. There was joint possession of the Tschudi Mining Area, and respondents' actions constituted lawful counter-spoliation, not spoliation. The relief sought was not justified, and referral to oral evidence was unnecessary.

Court Disposition

appeal dismissed with costs

Orders

  • The appeal is dismissed with costs, including costs of one instructing and one instructed counsel.