Jigger Properties CC v Maynard NO and Others (AR395/2015; AR396/2015) [2017] ZAKZPHC 9; 2017 (4) SA 569 (KZP) (13 March 2017)

Jigger Properties CC v Maynard NO and Others (AR395/2015; AR396/2015) [2017] ZAKZPHC 9; 2017 (4) SA 569 (KZP) (13 March 2017)

The court found that the respondents' right of access to the underground tanks in the exclusive use area Y8 was based on contractual arrangements with previous owners and not on a servitude or real right. The respondents did not occupy or exercise physical control over the premises; their access was limited and required the appellant's cooperation. The mandament van spolie does not protect mere personal or contractual rights, only rights to use or occupy property or incidents of occupation. Furthermore, a mere threat to deny access does not constitute spoliation; actual and wrongful deprivation is required for relief. The respondents were not entitled to spoliatory relief, and neither...

Citation
[2017] ZAKZPHC 9
Parties
Appellant: Jigger Properties CC; Respondent: Scott Richard Maynard N.O.; Respondent: Richard Alistair Maynard N.O.; Respondent: Pamela Joan Maynard N.O.; Respondent: ADD Resins & Chemical (Pty) Ltd
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
13 March 2017
Case Number
AR395/2015; AR396/2015
Procedural Posture
Civil Appeal / Appeal From the Kwa Zulu Natal High Court, Durban
Outcome
Appeal upheld; orders of the court a quo set aside and replaced.
Judges
Jappie JP, Van Zÿl J, Seegobin J
Legal Topics
Mandament Van Spolie, Quasi Possessio, Servitude Rights, Sectional Titles Act, Specific Performance
Civil Procedure Land and Property Mandament Van Spolie Quasi Possessio Servitude Rights Sectional Titles Act Specific Performance

Case Brief

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Parties

Jigger Properties CC

Appellant

Scott Richard Maynard N.O.

Respondent

Richard Alistair Maynard N.O.

Respondent

Pamela Joan Maynard N.O.

Respondent

ADD Resins & Chemical (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From the Kwa Zulu Natal High Court, Durban

Legal Issues

  1. 1 Whether the respondents' access to the exclusive use area Y8 amounted to quasi-possession deserving protection by mandament van spolie.
  2. 2 Whether a threat of spoliation constitutes an act of spoliation entitling a party to relief by way of mandament van spolie.
  3. 3 Whether the respondents have a servitude or other right of access to the exclusive use area Y8.

Ratio Decidendi

The court found that the respondents' right of access to the underground tanks in the exclusive use area Y8 was based on contractual arrangements with previous owners and not on a servitude or real right. The respondents did not occupy or exercise physical control over the premises; their access was limited and required the appellant's cooperation. The mandament van spolie does not protect mere personal or contractual rights, only rights to use or occupy property or incidents of occupation. Furthermore, a mere threat to deny access does not constitute spoliation; actual and wrongful deprivation is required for relief. The respondents were not entitled to spoliatory relief, and neither...

Court Disposition

Appeal upheld; orders of the court a quo set aside and replaced.

Orders

  • The application under case number 5209/2013 is dismissed with costs and the rule nisi granted on 16 May 2013 is discharged.
  • The appellant’s application and the respondents’ counter-application under 8638/2013 are dismissed with each party to pay its own costs.