Lessing v Serengeti Golf and Wildlife Estate (28609/2016) [2017] ZAGPJHC 260 (13 September 2017)
- Citation
- [2017] ZAGPJHC 260
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- L T Modiba
- Case number
- 28609/2016
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- L T Modiba
- Case number
- 28609/2016
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The application for leave to appeal is dismissed because the dispute between the parties has been resolved and the applicant's status quo ante restored, rendering the appeal moot. The judgment does not conflict with the authorities cited by the respondent, as those cases dealt with contractual rights rather than property rights. The facts of the present matter relate to the exercise of property rights, and the extension of the ratio in the cited authorities is not appropriate in this case. There is no reason for the appeal to be heard under section 17(1)(a)(ii) of the Superior Courts Act.
Court disposition
Application for leave to appeal dismissed with costs.
Orders
- The application for leave to appeal is dismissed with costs.
02
Material facts
Parties
Lessing, Thomas Sarel
Applicant Counsel: R BooysensSerengeti Golf and Wildlife Estate
Respondent Counsel: B Heystak03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Following Urgent Interdict
04
Questions and positions
Legal issues
- 01
Whether electronic access to a residential estate and communal facilities constitutes possession for purposes of an interdict.
- 02
Whether the appeal would have any practical effect given the restoration of the applicant's status quo ante.
- 03
Whether the judgment conflicts with cited authorities on possession and electronic access rights.
Party arguments
- Applicant
- The applicant argued that the respondent unlawfully deprived him and his mother of access to their residential property and communal facilities at Serengeti Estate, and that such access constitutes possession protected by law. He maintained that the restoration of access resolved the dispute and rendered the appeal moot.
- Respondent
- The respondent contended that the court erred in law by finding that electronic access to the estate and communal facilities amounts to possession. Relying on De Beer v Zimbali Estate Management Association and Microsure v Net 1 Applied Technologies, the respondent argued that such access is a contractual right, not a property right, and that the appeal court may reach a different conclusion.
05
Court’s reasoning
Legal principles
- 01
De Beer v Zimbali Estate Management Association (Pty) Ltd and Another 2007 (3) SA 254
Possession includes not only physical occupation but also access rights where such access is integral to the exercise of property rights.
- 02
Microsure (Pty) Ltd and others v Net 1 Applied Technologies South Africa Ltd 2010 (2) SA 59
Deprivation of electronic access may amount to deprivation of a contractual right, but not necessarily a property right.
- 03
Superior Courts Act 10 of 2013, section 16(2)(a)(i) and section 17(1)(a)(ii)
Leave to appeal may only be granted if the appeal would have practical effect or if there are conflicting judgments on the matter.
06
Ratio, limits and disposition
Ratio decidendi
The application for leave to appeal is dismissed because the dispute between the parties has been resolved and the applicant's status quo ante restored, rendering the appeal moot. The judgment does not conflict with the authorities cited by the respondent, as those cases dealt with contractual rights rather than property rights. The facts of the present matter relate to the exercise of property rights, and the extension of the ratio in the cited authorities is not appropriate in this case. There is no reason for the appeal to be heard under section 17(1)(a)(ii) of the Superior Courts Act.
Obiter and limits
- The extension of the ratio in De Beer and Microsure to cases involving property rights remains undetermined and is not suitable for resolution in this matter.
- No purpose would be served by regurgitating the reasons previously furnished for the original order.
Court disposition
Application for leave to appeal dismissed with costs.
- The application for leave to appeal is dismissed with costs.
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 LOCAL DIVISION, JOHANNESBURG)
Case Number: 28609/2016
Reportable No
Of interest to other judges: No
Revised
13 September 2016
In the matter between:
LESSING,
THOMAS
SAREL APPLICANT
and
SERENGETI
GOLF AND WILDLIFE
ESTATE RESPONDENT
JUDGMENT
ON APPEAL
[1] This is an application for leave to appeal the order that I granted in this·matter in the urgent court on 30 August 2016,
interdicting the respondent and its employees and security personnel from harassing and discriminating the applicant, his mother and visitors and ordering the respondent to restore the applicant and his mother's access to his residential property at Serengeti Estate as well as card and biqmetric access to the estate and to certain communal facilities at the estate.
[2] I furnished my reasons for the said order to the parties on 13 September 2016.
[3] In seeking leave to appeal, the respondent relies on several grounds. Some of the grounds relate to issues fully deal with in my reasons. I stand by my reasons in respect of those issues. No purpose would be served by regurgitating the reasons in this judgement. One issue however, merits attention; that is, the respondent's contention that I erred in law by finding that possession of electronic access to the estate and access to the estate's communal facilities amounts to possession. Counsel for the respondent relied in this regard on two judgments; namely, De Beer v Zimbali Estate Management Association (Ply) Ltd and Another[1] and Microsure (Pty) Ltd and others v Net 1 Applied Technologies South Africa Ltd[2]. In De Beer, the applicant enjoyed access to Zimbali Estate as an Estate Agent selling property on the estate. She did not do so in exercise of property rights. In Microsure, the court dealt with the deactivation of an electronic merchant card used to access a computer system. It found that such deprivation amounted to the deprivation of an electronically accessed contractual right. Therefore, the right in dispute did not relate to the exercise of property rights.
[4] The contention by counsel for the respondent that when applying the above cases to the present matter, the appeal court may come to a different finding stands to be dismissed for two reasons. The lis between the parties has been resolved and the applicant's status quo ante restored. Therefore as between the parties, the appeal will be of no practical effect.[3] The judgment handed down in this matter does not conflict with the authorities relied on by the respondents, cited above... This locates this application outside the scope of section 17(1) (a) (ii) of the Superior Courts Act.[4] As to whether the ratio in the above authorities ought to be extended to the facts of the present matter, which relate to the exercise of property rights, is yet to be determined. With the /is between the parties having been resolved, this case is not an appropriate one for such a determination.
[4] Therefore the application for leave to appeal stands to be dismissed with costs.
ORDER
1. The application for leave to appeal is dismissed with costs.
_____
L
T MODIBA
JUDGE
OF THE HIGH COURT
APPEARENCES
Counsel for the Plaintiff: R Booysens
Instructed by: Dewey Hertzberg Levy INC
Counsel for the Defendant: B Heystak
Instructed by: Van Rensburg Schoon
INC
Date of judgment: 21 September 2017
[1] 2007 (3) SA 254.
[2] 2010 (2) SA 59.
[3] Superior Courts Act 10 of 2013, section 16 (2) (a) (i).
[4] Leave to appeal (1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that – (a) (ii) there is some reason why the appeal should be heard including conflicting judgments on the matter under consideration.
[4] Leave to appeal
(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that –
(a) (ii) there is some reason why the appeal should be heard including conflicting judgments on the matter under consideration.
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