Alegria Body Corporate v The Splice Riviera Body Corporate (11999/2016) [2017] ZAGPJHC 64 (6 March 2017)

Alegria Body Corporate v The Splice Riviera Body Corporate (11999/2016) [2017] ZAGPJHC 64 (6 March 2017)

The court found that the applicant did not establish peaceful and undisturbed possession of the subject matter, namely the activation of access tags, at the time of the alleged spoliation. The applicant's members were not deprived of access to their property, but only required to sign the security register instead of using access tags. The relief sought amounted to specific performance of a disputed contractual right, not restoration of possession. The mandament van spolie is not available to enforce contractual rights or mere personal rights. The application was also delayed, undermining its urgency. Accordingly, the requirements for a spoliation order were not met and the application...

Citation
[2017] ZAGPJHC 64
Parties
Applicant: Alegria Body Corporate; Respondent: The Splice Riviera Body Corporate
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
6 March 2017
Case Number
11999/2016
Procedural Posture
Urgent Application / Application for Spoliation Order
Outcome
Application dismissed with costs.
Judges
K E Matojane
Legal Topics
Mandament Van Spolie, Unlawful Dispossession, Quasi Possession, Specific Performance, Sectional Title Servitude
Civil Procedure Mandament Van Spolie Unlawful Dispossession Quasi Possession Specific Performance Sectional Title Servitude

Case Brief

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Parties

Alegria Body Corporate

Applicant

The Splice Riviera Body Corporate

Respondent

Procedural Posture

Urgent Application / Application for Spoliation Order

Legal Issues

  1. 1 Whether the applicant is entitled to a spoliation order for reactivation of access tags.
  2. 2 Whether the deactivation of access tags constitutes unlawful dispossession protected by the mandament van spolie.
  3. 3 Whether the applicant exercised peaceful and undisturbed possession of the subject matter at the time of alleged spoliation.

Ratio Decidendi

The court found that the applicant did not establish peaceful and undisturbed possession of the subject matter, namely the activation of access tags, at the time of the alleged spoliation. The applicant's members were not deprived of access to their property, but only required to sign the security register instead of using access tags. The relief sought amounted to specific performance of a disputed contractual right, not restoration of possession. The mandament van spolie is not available to enforce contractual rights or mere personal rights. The application was also delayed, undermining its urgency. Accordingly, the requirements for a spoliation order were not met and the application...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.