Diamond Core Mining & Operation (Pty) Ltd v De Venter N.O and Others (299/05) [2005] ZANCHC 98 (9 September 2005)

Diamond Core Mining & Operation (Pty) Ltd v De Venter N.O and Others (299/05) [2005] ZANCHC 98 (9 September 2005)

The court found that the applicant was in peaceful and undisturbed possession of the pipeline and associated water rights at the time of dispossession. The temporary cessation of mining operations did not constitute abandonment or relinquishment of possession. The applicant brought the application within a year of becoming aware of the dispossession, and the respondents' bare denial did not create a genuine dispute of fact. The respondents' argument that the order would have no practical effect was rejected, as the pipeline was stored and the applicant intended to resume operations. The alleged lapse of servitude was dismissed, as the facts showed continued possession and use. The...

Citation
[2005] ZANCHC 98
Parties
Applicant: Diamond Core Mining & Operation (Pty) Ltd; Respondent: Aletta Hendrina van Deventer N.O.; Respondent: Johannes Frederick van Deventer N.O.; Respondent: Christoffel Arnoldus van Deventer N.O.; Respondent: Mariana van Deventer N.O.
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
9 September 2005
Case Number
299/05
Procedural Posture
Urgent Application / Opposed Application for Restoration of Possession (mandament Van Spolie)
Outcome
Application granted; restoration of possession ordered.
Judges
Majiedt
Legal Topics
Mandament Van Spolie, Possession, Servitude of Aqueduct, Delay in Application, Peaceful and Undisturbed Possession
Civil Procedure Land and Property Mandament Van Spolie Possession Servitude of Aqueduct Delay in Application Peaceful and Undisturbed Possession

Case Brief

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Parties

Diamond Core Mining & Operation (Pty) Ltd

Applicant

Aletta Hendrina van Deventer N.O.

Respondent

Johannes Frederick van Deventer N.O.

Respondent

Christoffel Arnoldus van Deventer N.O.

Respondent

Mariana van Deventer N.O.

Respondent

Procedural Posture

Urgent Application / Opposed Application for Restoration of Possession (mandament Van Spolie)

Legal Issues

  1. 1 Whether the applicant was in peaceful and undisturbed possession of the pipeline and associated water rights at the time of alleged dispossession.
  2. 2 Whether the delay in bringing the application precludes relief under the mandament van spolie.
  3. 3 Whether the applicant abandoned its rights or possession, resulting in lapse of any servitude.

Ratio Decidendi

The court found that the applicant was in peaceful and undisturbed possession of the pipeline and associated water rights at the time of dispossession. The temporary cessation of mining operations did not constitute abandonment or relinquishment of possession. The applicant brought the application within a year of becoming aware of the dispossession, and the respondents' bare denial did not create a genuine dispute of fact. The respondents' argument that the order would have no practical effect was rejected, as the pipeline was stored and the applicant intended to resume operations. The alleged lapse of servitude was dismissed, as the facts showed continued possession and use. The...

Court Disposition

Application granted; restoration of possession ordered.

Orders

  • The respondents are ordered to forthwith restore possession to the applicant of the pipeline along the route demarcated in green in Annexure E to the founding affidavit of Theodoros Botoulas.
  • The respondents are ordered to forthwith restore possession to the applicant of the right to draw water from the Vaal River via the retention dam built on their property at the point where the pipeline along the route demarcated in black meets the pipeline demarcated in green in Annexure E.