J S van der Watt Enterprises CC and Another v Vusani Property Investments (Pty) Ltd (2692/2006) [2006] ZAFSHC 100 (31 August 2006)

J S van der Watt Enterprises CC and Another v Vusani Property Investments (Pty) Ltd (2692/2006) [2006] ZAFSHC 100 (31 August 2006)

The court found that the applicants had established factual use of an alleged praedial servitude of right of way over Erf 3406 in favour of Erf 140, exercised for over 30 years by the owners, tenants, employees, customers, and suppliers. The respondent's erection of a palisade unlawfully deprived the applicants of peaceful and undisturbed possession of this right of way. The evidence of actual use was confirmed and not genuinely disputed. Both the owner and the tenant were found to have standing to claim the mandament van spolie, as both exercised the right of way and derived benefit. The court limited the relief to restoration of possession of the right of way and ordered removal of the...

Citation
[2006] ZAFSHC 100
Parties
Applicant: J S van der Watt Investments CC; Applicant: Hajaree Supermarket CC t/a Jabulani Wholesalers; Respondent: Vusani Property Investments (Pty) Ltd
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
31 August 2006
Case Number
2692/2006
Procedural Posture
Urgent Application / Application for Spoliation Order on Urgent Basis
Outcome
Application granted. Spoliation order issued in favour of the applicants.
Judges
C.H.G. van der Merwe
Legal Topics
Mandament Van Spolie, Quasi Possession, Praedial Servitude, Right of Way
Civil Procedure Land and Property Mandament Van Spolie Quasi Possession Praedial Servitude Right of Way

Case Brief

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Parties

J S van der Watt Investments CC

Applicant

Hajaree Supermarket CC t/a Jabulani Wholesalers

Applicant

Vusani Property Investments (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Application for Spoliation Order on Urgent Basis

Legal Issues

  1. 1 Whether the applicants established actual or factual exercise of an alleged servitutal right of way over Erf 3406.
  2. 2 Whether the applicants are entitled to a spoliation order restoring possession of the right of way.
  3. 3 Whether the second applicant, as tenant, has standing to claim the mandament van spolie.

Ratio Decidendi

The court found that the applicants had established factual use of an alleged praedial servitude of right of way over Erf 3406 in favour of Erf 140, exercised for over 30 years by the owners, tenants, employees, customers, and suppliers. The respondent's erection of a palisade unlawfully deprived the applicants of peaceful and undisturbed possession of this right of way. The evidence of actual use was confirmed and not genuinely disputed. Both the owner and the tenant were found to have standing to claim the mandament van spolie, as both exercised the right of way and derived benefit. The court limited the relief to restoration of possession of the right of way and ordered removal of the...

Court Disposition

Application granted. Spoliation order issued in favour of the applicants.

Orders

  • The respondent is ordered to forthwith restore to the first applicant and the second applicant peaceful and undisturbed possession of right of way over Erf 3406 in favour of Erf 140, Odendaalsrus.
  • The respondent is ordered to forthwith remove the palisade erected along the boundary between Erven 140 and 3406 in order to restore to the first and second applicants peaceful and undisturbed possession and use of right of way over Erf 3406 in favour of Erf 140, Odendaalsrus.