Kaya Katsa CC v Le Cao and Another (3368/2017) [2018] ZAFSHC 138 (12 September 2018)

Kaya Katsa CC v Le Cao and Another (3368/2017) [2018] ZAFSHC 138 (12 September 2018)

The court found that the applicant's claims for contribution to fencing and access control expenses were not supported by law or fact. The fencing was erected for the applicant's exotic game farming, which did not benefit the first respondent, and the Fencing Act did not oblige the respondent to contribute in these circumstances. The right of way existed by operation of law, not contract, and the applicant could not unilaterally impose costs or control measures beyond what was reasonable and lawful. The applicant failed to follow due process under the Fencing Act and did not establish that the respondent benefited from the superior fencing. The claims for declaratory and interdictory...

Citation
[2018] ZAFSHC 138
Parties
Applicant: Kaya Katsa CC; Respondent: Huy Le Cao; Respondent: The Registrar of Deeds, Bloemfontein
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
12 September 2018
Case Number
3368/2017
Procedural Posture
Civil Application / Final Judgment
Outcome
Application dismissed with costs awarded against the applicant.
Judges
M Opperman
Legal Topics
Fencing Act, Right of Way, Declaratory Relief, Final Interdict, Agricultural Zoning
Land and Property Civil Procedure Fencing Act Right of Way Declaratory Relief Final Interdict Agricultural Zoning

Case Brief

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Parties

Kaya Katsa CC

Applicant

Huy Le Cao

Respondent

The Registrar of Deeds, Bloemfontein

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the first respondent is liable for half of the reasonable expense incurred by the applicant in fencing-out the right of way.
  2. 2 Whether the first respondent is obliged to co-operate with reasonable control of access and contribute to associated costs.
  3. 3 Whether the first respondent may be interdicted from using his farm in contravention of agricultural zoning, specifically for tourism accommodation or hospitality business.

Ratio Decidendi

The court found that the applicant's claims for contribution to fencing and access control expenses were not supported by law or fact. The fencing was erected for the applicant's exotic game farming, which did not benefit the first respondent, and the Fencing Act did not oblige the respondent to contribute in these circumstances. The right of way existed by operation of law, not contract, and the applicant could not unilaterally impose costs or control measures beyond what was reasonable and lawful. The applicant failed to follow due process under the Fencing Act and did not establish that the respondent benefited from the superior fencing. The claims for declaratory and interdictory...

Court Disposition

Application dismissed with costs awarded against the applicant.

Orders

  • The relief sought in prayers 1, 2, 3 and 4 is dismissed.
  • The applicant is ordered to pay the costs of the application.