Bon Quelle (Edms) Bpk v Munisipaliteit, Otavi (256/87) [1988] ZASCA 123; [1989] 1 All SA 416 (A) (29 September 1988)

Bon Quelle (Edms) Bpk v Munisipaliteit, Otavi (256/87) [1988] ZASCA 123; [1989] 1 All SA 416 (A) (29 September 1988)

The Supreme Court of Appeal held that the mandament van spolie is available to restore the quasi-possession of incorporeal rights, such as the exercise of water rights under a claimed servitude, without requiring proof of the existence of the servitude itself. The respondent's long-standing exercise of water rights constituted quasi-possession, and the appellant's unilateral interference amounted to spoliation. The court rejected the contrary approach in Jansen v Madden, finding it inconsistent with established principles that the merits of the underlying rights are irrelevant in spoliation proceedings. The delay in bringing the application was not unreasonable and did not justify...

Citation
[1988] ZASCA 123
Parties
Appellant: Bon Quelle (Edms) Beperk; Respondent: Munisipaliteit van Otavi
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 September 1988
Case Number
256/87
Procedural Posture
Civil Appeal / Appeal From High Court (south West Africa) Granting a Spoliation Order
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Rabie, Joubert, Botha, Hefer, Vivier
Legal Topics
Mandament Van Spolie, Quasi Possession, Spoliation of Incorporeal Rights, Serwituut Rights
Civil Procedure Mandament Van Spolie Quasi Possession Spoliation of Incorporeal Rights Serwituut Rights

Case Brief

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Parties

Bon Quelle (Edms) Beperk

Appellant

Munisipaliteit van Otavi

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court (south West Africa) Granting a Spoliation Order

Legal Issues

  1. 1 Whether proof of the existence of a servitude is required for the granting of a spoliation order in respect of water rights.
  2. 2 Whether the respondent's long-standing exercise of water rights constitutes quasi-possession protected by the mandament van spolie.
  3. 3 Whether delay in bringing the application should bar the granting of the spoliation order.

Ratio Decidendi

The Supreme Court of Appeal held that the mandament van spolie is available to restore the quasi-possession of incorporeal rights, such as the exercise of water rights under a claimed servitude, without requiring proof of the existence of the servitude itself. The respondent's long-standing exercise of water rights constituted quasi-possession, and the appellant's unilateral interference amounted to spoliation. The court rejected the contrary approach in Jansen v Madden, finding it inconsistent with established principles that the merits of the underlying rights are irrelevant in spoliation proceedings. The delay in bringing the application was not unreasonable and did not justify...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs of two advocates.