B v B (36446/09) [2009] ZAGPPHC 261 (6 August 2009)

B v B (36446/09) [2009] ZAGPPHC 261 (6 August 2009)

The court found that the application lacked urgency, as the respondent's actions—erecting gates, removing fencing, and installing speed bumps—were taken some time before the application and did not deprive the applicant of his right of way. The applicant was provided with access codes for the gates and could use an alternative public road (D608) to reach the N3. The inconvenience alleged by the applicant did not outweigh the legitimate interests of the respondent and other farmers in securing their property and livestock. The court further held that the applicant was not spoliated, as he retained access, and that all interested parties were not joined. Consequently, the application was...

Citation
[2009] ZAGPPHC 261
Parties
Applicant: LJ B; Respondent: LJ B
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
6 August 2009
Case Number
36446/09
Procedural Posture
Urgent Application / Application for Urgent Relief; Struck From the Roll
Outcome
Application struck from the roll with costs due to lack of urgency and merit.
Judges
Ebersohn
Legal Topics
Right of Way, Urgent Interdict, Spoliation, Public Road Access
Land and Property Civil Procedure Right of Way Urgent Interdict Spoliation Public Road Access

Case Brief

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Parties

LJ B

Applicant

LJ B

Respondent

Procedural Posture

Urgent Application / Application for Urgent Relief; Struck From the Roll

Legal Issues

  1. 1 Whether the application is urgent and should be heard as such.
  2. 2 Whether the applicant has been unlawfully deprived of his right of way over the respondent's property.
  3. 3 Whether the respondent's erection of gates, removal of fencing, and installation of speed bumps constitute spoliation or unlawful interference with the applicant's rights.

Ratio Decidendi

The court found that the application lacked urgency, as the respondent's actions—erecting gates, removing fencing, and installing speed bumps—were taken some time before the application and did not deprive the applicant of his right of way. The applicant was provided with access codes for the gates and could use an alternative public road (D608) to reach the N3. The inconvenience alleged by the applicant did not outweigh the legitimate interests of the respondent and other farmers in securing their property and livestock. The court further held that the applicant was not spoliated, as he retained access, and that all interested parties were not joined. Consequently, the application was...

Court Disposition

Application struck from the roll with costs due to lack of urgency and merit.

Orders

  • The application is not urgent and is struck from the roll with costs.