Gounder and Another v Govender (AR467/08) [2009] ZAKZPHC 3 (6 March 2009)

Gounder and Another v Govender (AR467/08) [2009] ZAKZPHC 3 (6 March 2009)

The appeal was dismissed because the Magistrate exercised his discretion judicially in allowing the respondent to insert new facts in her replying affidavit, given the lack of prejudice to the appellants and the clarity of the dispute regarding the second road. The respondent was found to have peaceful and undisturbed possession of the road in question, and exclusivity of possession is not required for the mandament van spolie. Servitudal rights, such as a right of way, are capable of protection by a mandament van spolie. The appellants' arguments were without merit, and the lower court's order was confirmed.

Citation
[2009] ZAKZPHC 3
Parties
Appellant: Yagambaram Gounder; Appellant: Krish Naicker; Respondent: Anjaly Govender
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
6 March 2009
Case Number
AR467/08
Procedural Posture
Civil Appeal / Appeal Against Spoliation Order From Magistrate's Court
Outcome
Appeal dismissed with costs.
Judges
Msimang, Mnguni
Legal Topics
Mandament Van Spolie, Servitude Right of Way, Possession, Replying Affidavit New Matter
Civil Procedure Land and Property Mandament Van Spolie Servitude Right of Way Possession Replying Affidavit New Matter

Case Brief

Summary, issues, holding and outcome

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Parties

Yagambaram Gounder

Appellant

Krish Naicker

Appellant

Anjaly Govender

Respondent

Procedural Posture

Civil Appeal / Appeal Against Spoliation Order From Magistrate's Court

Legal Issues

  1. 1 Whether the respondent was entitled to insert new facts in her replying affidavit which should have been in her founding affidavit.
  2. 2 Whether the respondent had peaceful and undisturbed possession of the road in question.
  3. 3 Whether servitudal rights such as a right of way can be protected by a mandament van spolie.

Ratio Decidendi

The appeal was dismissed because the Magistrate exercised his discretion judicially in allowing the respondent to insert new facts in her replying affidavit, given the lack of prejudice to the appellants and the clarity of the dispute regarding the second road. The respondent was found to have peaceful and undisturbed possession of the road in question, and exclusivity of possession is not required for the mandament van spolie. Servitudal rights, such as a right of way, are capable of protection by a mandament van spolie. The appellants' arguments were without merit, and the lower court's order was confirmed.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.