Khumalo v Len Smith Investment Holdings CC (LCC175/2016) [2020] ZALCC 28 (3 March 2020)

Khumalo v Len Smith Investment Holdings CC (LCC175/2016) [2020] ZALCC 28 (3 March 2020)

The Land Claims Court has jurisdiction to hear the matter as it concerns the rights of an occupier under ESTA, which is incidental to its jurisdiction. The applicant established quasi-possession of a right of way over the respondent's property, having used the route for many years with the respondent's tacit consent. The respondent's actions in locking the gates and constructing a makeshift gate without providing reasonable notice constituted spoliation. The delay of eight months in launching the application was reasonable given the applicant's circumstances and the practical difficulties in obtaining legal representation. The applicant's right of access is akin to a precarium, which...

Citation
[2020] ZALCC 28
Parties
Applicant: Muntu Welcome Khumalo; Respondent: Len Smith Investment Holdings CC
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
3 March 2020
Case Number
LCC175/2016
Procedural Posture
Urgent Application / Final Judgment After Oral Argument and Inspection in Loco
Outcome
Application granted; spoliation order issued in favour of the applicant.
Judges
M P Canca
Legal Topics
Spoliation, Mandament Van Spolie, Precarium, Extension of Security of Tenure Act, Access Rights, Reasonable Notice
Land and Property Civil Procedure Spoliation Mandament Van Spolie Precarium Extension of Security of Tenure Act Access Rights Reasonable Notice

Case Brief

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Parties

Muntu Welcome Khumalo

Applicant

Len Smith Investment Holdings CC

Respondent

Procedural Posture

Urgent Application / Final Judgment After Oral Argument and Inspection in Loco

Legal Issues

  1. 1 Whether the Land Claims Court has jurisdiction to hear a spoliation application where the applicant is not the owner of the dominant land.
  2. 2 Whether the applicant, as an occupier under ESTA, is entitled to unhindered access to his homestead via the respondent's property.
  3. 3 Whether the requirements for a mandament van spolie have been met, including the element of urgency and quasi-possession of an incorporeal right.

Ratio Decidendi

The Land Claims Court has jurisdiction to hear the matter as it concerns the rights of an occupier under ESTA, which is incidental to its jurisdiction. The applicant established quasi-possession of a right of way over the respondent's property, having used the route for many years with the respondent's tacit consent. The respondent's actions in locking the gates and constructing a makeshift gate without providing reasonable notice constituted spoliation. The delay of eight months in launching the application was reasonable given the applicant's circumstances and the practical difficulties in obtaining legal representation. The applicant's right of access is akin to a precarium, which...

Court Disposition

Application granted; spoliation order issued in favour of the applicant.

Orders

  • The respondent is directed to provide the applicant with unhindered access to his homestead situated on Kilham Farm, Bergville, KwaZulu-Natal, through its farm, Buffelskloof, Bergville, KwaZulu-Natal.
  • The directive shall be executed by the respondent upon forty-eight (48) hours' notice by the applicant of his intention to use the route on Buffelskloof, Bergville, KwaZulu-Natal.