Du Toit v Vorster and Another (2406/2006) [2006] ZAFSHC 74 (12 June 2006)

Du Toit v Vorster and Another (2406/2006) [2006] ZAFSHC 74 (12 June 2006)

The applicant failed to discharge the onus of establishing a prima facie right to the interim interdict. The evidence did not sufficiently prove the existence of the alleged oral agreement regarding the limitation of building works, especially given that the building plans were already approved and no specific measurements were agreed upon at the relevant time. The probabilities favoured the respondent's version that no such agreement was reached. Even if an agreement existed, the applicant did not demonstrate a likelihood of success in her contemplated action for specific performance, as the court retains discretion to award damages instead. The alleged harm to the applicant was not...

Citation
[2006] ZAFSHC 74
Parties
Applicant: Edith Mary Du Toit; Respondent: Chris Vorster; Respondent: Mangaung Plaaslike Munisipaliteit
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
12 June 2006
Case Number
2406/2006
Procedural Posture
Urgent Application / Interim Interdict Application
Outcome
Application dismissed with costs.
Judges
Van Zyl, R
Legal Topics
Interim Interdict, Specific Performance, Contract Breach, Property Boundary Dispute
Civil Procedure Land and Property Interim Interdict Specific Performance Contract Breach Property Boundary Dispute

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Parties

Edith Mary Du Toit

Applicant

Chris Vorster

Respondent

Mangaung Plaaslike Munisipaliteit

Respondent

Procedural Posture

Urgent Application / Interim Interdict Application

Legal Issues

  1. 1 Whether the applicant established a prima facie right to an interim interdict preventing the respondent from continuing building works between points K and N pending final adjudication of a contemplated action.
  2. 2 Whether the alleged oral agreement regarding the extent of building works is sufficiently proven to justify interim relief.
  3. 3 Whether the applicant will suffer irreparable harm if the interim interdict is not granted.

Ratio Decidendi

The applicant failed to discharge the onus of establishing a prima facie right to the interim interdict. The evidence did not sufficiently prove the existence of the alleged oral agreement regarding the limitation of building works, especially given that the building plans were already approved and no specific measurements were agreed upon at the relevant time. The probabilities favoured the respondent's version that no such agreement was reached. Even if an agreement existed, the applicant did not demonstrate a likelihood of success in her contemplated action for specific performance, as the court retains discretion to award damages instead. The alleged harm to the applicant was not...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.