Hillside Safaris (Pty) Ltd v Afrika Plains Limited (2789/2017) [2017] ZAECGHC 88 (26 July 2017)

Hillside Safaris (Pty) Ltd v Afrika Plains Limited (2789/2017) [2017] ZAECGHC 88 (26 July 2017)

The court found that the applicant failed to establish a prima facie right to traverse Lilyvalley. The evidence, including correspondence and a prior court order, demonstrated that Majormatic had never entered into a conservancy agreement and only granted traversing rights as a precarium, revocable at will. The applicant's assertion of an oral agreement was contradicted by its own emails and was not supported by the facts. The urgency of the application was self-created, as the applicant had long been aware of the dispute and the impending withdrawal of rights but delayed bringing the application. Furthermore, Majormatic had a direct and substantial interest in the subject matter and...

Citation
[2017] ZAECGHC 88
Parties
Applicant: Hillside Safaris (Pty) Ltd; Respondent: Afrika Plains Limited; Respondent: Custocel (Pty) Ltd; Respondent: Buffalo Bill Trading Co (Pty) Ltd
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
26 July 2017
Case Number
2789/2017
Procedural Posture
Urgent Application / Application for Interim Interdict Pendente Lite
Outcome
Application dismissed with costs on the attorney and client scale, including costs of the application to strike out and costs of two counsel where so employed.
Judges
Roberson
Legal Topics
Interdict Pendente Lite, Conservancy Agreements, Traversal Rights, Joinder, Prima Facie Right, Urgent Application
Land and Property Civil Procedure Interdict Pendente Lite Conservancy Agreements Traversal Rights Joinder Prima Facie Right Urgent Application

Case Brief

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Parties

Hillside Safaris (Pty) Ltd

Applicant

Afrika Plains Limited

Respondent

Custocel (Pty) Ltd

Respondent

Buffalo Bill Trading Co (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Application for Interim Interdict Pendente Lite

Legal Issues

  1. 1 Whether the applicant has established a prima facie right to traverse Lilyvalley pending the determination of the action.
  2. 2 Whether the application is urgent or the urgency is self-created.
  3. 3 Whether Majormatic should have been joined as a party due to its direct and substantial interest.

Ratio Decidendi

The court found that the applicant failed to establish a prima facie right to traverse Lilyvalley. The evidence, including correspondence and a prior court order, demonstrated that Majormatic had never entered into a conservancy agreement and only granted traversing rights as a precarium, revocable at will. The applicant's assertion of an oral agreement was contradicted by its own emails and was not supported by the facts. The urgency of the application was self-created, as the applicant had long been aware of the dispute and the impending withdrawal of rights but delayed bringing the application. Furthermore, Majormatic had a direct and substantial interest in the subject matter and...

Court Disposition

Application dismissed with costs on the attorney and client scale, including costs of the application to strike out and costs of two counsel where so employed.

Orders

  • The application is dismissed with costs on the attorney and client scale, including the costs of the application to strike out.
  • Such costs are to include the costs of two counsel where so employed.