Burger v Oppimex (Edms) Bpk and Others (1766/2006) [2011] ZANWHC 11 (10 March 2011)

Burger v Oppimex (Edms) Bpk and Others (1766/2006) [2011] ZANWHC 11 (10 March 2011)

The court found that the applicant was in peaceful and undisturbed possession of the right of way and was unlawfully deprived of it by the respondents' actions in locking the gate and ploughing the road. The respondents' argument that the road was not situated according to the servitude was irrelevant to the spoliation remedy, which requires restoration before entitlement is considered. Restoration was not objectively impossible, as the road could be scraped back to its former condition. The delay in finalizing the matter was due to settlement negotiations and did not amount to a delay in instituting proceedings. The applicant acted promptly, and the respondents were also party to the...

Citation
[2011] ZANWHC 11
Parties
Applicant: Robert Byron Burger; Respondent: Oppimex (Edms) Bpk; Respondent: Jimmy McDonald; Respondent: Peter McDonald
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
10 March 2011
Case Number
1766/2006
Procedural Posture
Urgent Application / Application for Mandament Van Spolie
Outcome
Application granted; relief in terms of prayers 1 and 2 of the Notice of Motion issued on 12 December 2006.
Judges
D I Matlapeng
Legal Topics
Mandament Van Spolie, Right of Way Servitude, Unlawful Deprivation of Possession, Self Help, Delay in Finalization
Land and Property Civil Procedure Mandament Van Spolie Right of Way Servitude Unlawful Deprivation of Possession Self Help Delay in Finalization

Case Brief

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Parties

Robert Byron Burger

Applicant

Oppimex (Edms) Bpk

Respondent

Jimmy McDonald

Respondent

Peter McDonald

Respondent

Procedural Posture

Urgent Application / Application for Mandament Van Spolie

Legal Issues

  1. 1 Whether the applicant was in peaceful and undisturbed possession of the right of way at the time of the alleged spoliation.
  2. 2 Whether the applicant was unlawfully deprived of possession of the road.
  3. 3 Whether restoration of possession is impossible due to the ploughing of the road.

Ratio Decidendi

The court found that the applicant was in peaceful and undisturbed possession of the right of way and was unlawfully deprived of it by the respondents' actions in locking the gate and ploughing the road. The respondents' argument that the road was not situated according to the servitude was irrelevant to the spoliation remedy, which requires restoration before entitlement is considered. Restoration was not objectively impossible, as the road could be scraped back to its former condition. The delay in finalizing the matter was due to settlement negotiations and did not amount to a delay in instituting proceedings. The applicant acted promptly, and the respondents were also party to the...

Court Disposition

Application granted; relief in terms of prayers 1 and 2 of the Notice of Motion issued on 12 December 2006.

Orders

  • The applicant is granted relief in terms of prayers 1 and 2 of the Notice of Motion issued on 12 December 2006.