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South Africa Judgment

South Gauteng High Court, Johannesburg

Jaffit and Another v Bellingan and Another (33526/2018) [2018] ZAGPJHC 525 (13 September 2018)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The court found that the applicants had been deprived of their established method of access to their property via the remotely controlled gate, which was powered by electricity supplied from the first respondent's property. The first respondent unilaterally removed the motor and cut off the electricity supply without a court order, thereby interfering with the applicants' possession and use of the property. The court held that the applicants had established the requirements for spoliation relief, namely, peaceful and undisturbed possession and unlawful deprivation. The underlying disputes regarding the obligation to supply electricity were not determined, as spoliation proceedings do not concern the merits of such rights. The court granted the relief sought to restore the status quo ante.

Court disposition

Application for spoliation relief granted.

Orders

  • Prayers 1 and 2 of the Notice of Motion dated 11 September 2018 are granted.
  • The first respondent is ordered to pay the applicants' costs on the party and party scale.

02

Material facts

Parties

David Jaffit

Applicant Counsel: J M Hoffman

Maxine Jaffit

Applicant Counsel: J M Hoffman

Pieter Gerhardus Bellingan

Respondent Counsel: C Acker

Darryl Beira

Respondent Counsel: C Acker

03

Procedural history

  1. Posture

    Urgent Application / Spoliation Relief Application

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicants argued that they had enjoyed uninterrupted access to their property via a remotely controlled gate powered by electricity supplied from the first respondent's property. They contended that the first respondent unilaterally removed the gate motor and cut off the electricity supply without a court order, thereby depriving them of their established method of access and compromising their security. They sought urgent spoliation relief to restore the status quo ante.
Respondent
The first respondent argued that he was not obliged to supply electricity to the gate and did not admit any obligation to maintain the applicants' method of access. He did not address the spoliation directly but disputed the underlying entitlement to the electricity supply. The respondent did not provide justification for the unilateral removal of the motor and cutting off the electricity.

05

Court’s reasoning

  1. 01

    Nino Bonino v De Lange 1906 TS 120

    Spoliation relief is available where a party is unlawfully deprived of possession or use of property without a court order, and the status quo ante must be restored.

  2. 02

    Ivanov v North West Gambling Board and Others 2012 (6) SA 67 (SCA)

    The court does not inquire into the merits of the underlying rights but only whether there was unlawful deprivation.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the applicants had been deprived of their established method of access to their property via the remotely controlled gate, which was powered by electricity supplied from the first respondent's property. The first respondent unilaterally removed the motor and cut off the electricity supply without a court order, thereby interfering with the applicants' possession and use of the property. The court held that the applicants had established the requirements for spoliation relief, namely, peaceful and undisturbed possession and unlawful deprivation. The underlying disputes regarding the obligation to supply electricity were not determined, as spoliation proceedings do not concern the merits of such rights. The court granted the relief sought to restore the status quo ante.

Obiter and limits

  • The court made no finding on the broader disputes between the parties regarding the obligation to supply electricity.
  • Spoliation proceedings are not the forum to resolve underlying rights or obligations.

Court disposition

Application for spoliation relief granted.

  • Prayers 1 and 2 of the Notice of Motion dated 11 September 2018 are granted.
  • The first respondent is ordered to pay the applicants' costs on the party and party scale.

Source and reliance status

South Gauteng High Court, Johannesburg

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Judgment text

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Source document

South Gauteng High Court, Johannesburg

Judgment

[2018] ZAGPJHC 525

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION

LOCAL SEAT, JOHANNESBURG

CASE NO: 33526/2018

In the matter between:

DAVID

JAFFIT FIRST

APPLICANT

MAXINE JAFFIT

SECOND

APPLICANT

and

PIETER GERHARDUS BELLINGAN

FIRST

RESPONDENT

DARRYL

BEIRA SECOND

RESPONDENT

J U D G M E N T

WRIGHT J

1. The applicants live on a residential property in Johannesburg. Until recently they accessed their property via a remotely controlled gate driven by an electric motor. The first respondent lives next door and the electric power to the gate comes from his property. The parties had a long-standing arrangement of sorts that they would contribute to common expenses like security.

2. About 3 days ago the first respondent, without a court order unilaterally removed the motor from the gate and cut off the electricity supply. He put a manual lock on the gate and gave the applicants keys to the lock. They seek urgently spoliation relief. They fear for their security. They say that, as a fact, up until recently they have enjoyed access to their home via the remotely controlled gate.

3. The respondent says that he is not obliged to supply electricity to the gate. I make no finding on the point. Nor do I make any finding on the greater disputes between the parties. This case concerns only spoliation. The fact of the matter is that the applicants have been deprived of at least part of their former method of access. In the circumstances they have shown a spoliation.

ORDER

1. Prayers 1 & 2 of the Notice of Motion dated 11 September 2018 are granted.

2. The first respondent is to pay the applicant’s costs on the party and party scale.

______

On behalf of the Applicants: Adv J M Hoffman

Instructed by: Swartz Weil Van Der Merwe

Greenberg Inc

011 486 2850

joshua@swvginc.co.za

On behalf of the 1st Respondent: Adv C Acker with him Adv De la Hunt

Instructed by: Pagel Schulenburg Inc.

011 463 1214 / Z Hartman

Date of Hearing: 13 September 2018

Date of Judgment: 13 September 2018

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Nino Bonino v De Lange 1906 TS 120

Case cited

Ivanov v North West Gambling Board and Others 2012 (6) SA 67 (SCA)

Case cited

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