Jaffit and Another v Bellingan and Another (33526/2018) [2018] ZAGPJHC 525 (13 September 2018)
- Citation
- [2018] ZAGPJHC 525
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Wright
- Case number
- 33526/2018
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Wright
- Case number
- 33526/2018
On this page
Professional case brief
Research organized from the available case record
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 HoffmanMaxine Jaffit
Applicant Counsel: J M HoffmanPieter Gerhardus Bellingan
Respondent Counsel: C AckerDarryl Beira
Respondent Counsel: C Acker03
Procedural history
Posture
Urgent Application / Spoliation Relief Application
04
Questions and positions
Legal issues
- 01
Whether the applicants were unlawfully deprived of their access to their property via the remotely controlled gate.
- 02
Whether the applicants are entitled to spoliation relief on an urgent basis.
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
Legal principles
- 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.
- 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
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
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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