Bisschoff and Others v Welbeplan Boerdery (Pty) Ltd (M66/2016) [2016] ZANWHC 15 (29 April 2016)

Bisschoff and Others v Welbeplan Boerdery (Pty) Ltd (M66/2016) [2016] ZANWHC 15 (29 April 2016)

The court found that the correspondence sent by the respondents did not merely withdraw consent but specifically prohibited the applicant from entering the property, thereby disturbing possession and control. The letters amounted to self-help and unlawful deprivation of possession, as the respondents did not possess a court order or statutory authority to dispossess the applicant. The threshold for granting leave to appeal under the Superior Courts Act is higher, requiring certainty that another court would reach a different conclusion. The arguments raised by the respondents regarding contractual obligations and interdictory relief were misplaced and not supported by the facts or the...

Citation
[2016] ZANWHC 15
Parties
Applicant: Abraham Paulus Bisschoff; Applicant: Abraham Paulus Bisschoff (in his capacity as representative of the trustee of the Paul Bisschoff Trust); Applicant: Rietvlug Landgoed (Pty) Ltd; Applicant: David Eduard Bisschoff; Applicant: David Eduard Bisschoff (of the David Bisschoff Trust); Respondent: Welbeplan Boerdery (Pty) Ltd
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
29 April 2016
Case Number
M66/2016
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Full Bench Following Judgment in Main Application
Outcome
Application for leave to appeal dismissed with costs.
Judges
Kgoele
Legal Topics
Mandament Van Spolie, Unlawful Deprivation of Possession, Self Help, Leave to Appeal, Threshold for Appeal
Civil Procedure Land and Property Mandament Van Spolie Unlawful Deprivation of Possession Self Help Leave to Appeal Threshold for Appeal

Case Brief

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Parties

Abraham Paulus Bisschoff

Applicant

Abraham Paulus Bisschoff (in his capacity as representative of the trustee of the Paul Bisschoff Trust)

Applicant

Rietvlug Landgoed (Pty) Ltd

Applicant

David Eduard Bisschoff

Applicant

David Eduard Bisschoff (of the David Bisschoff Trust)

Applicant

Welbeplan Boerdery (Pty) Ltd

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Full Bench Following Judgment in Main Application

Legal Issues

  1. 1 Whether the correspondence sent by the respondents constituted unlawful deprivation of possession for purposes of the mandament van spolie.
  2. 2 Whether withdrawal of consent by correspondence affects factual control and possession of the property.
  3. 3 Whether the threshold for granting leave to appeal under the Superior Courts Act is met in this case.

Ratio Decidendi

The court found that the correspondence sent by the respondents did not merely withdraw consent but specifically prohibited the applicant from entering the property, thereby disturbing possession and control. The letters amounted to self-help and unlawful deprivation of possession, as the respondents did not possess a court order or statutory authority to dispossess the applicant. The threshold for granting leave to appeal under the Superior Courts Act is higher, requiring certainty that another court would reach a different conclusion. The arguments raised by the respondents regarding contractual obligations and interdictory relief were misplaced and not supported by the facts or the...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal to the Full Bench of this Division is dismissed with costs.