Lotter and Another v Uys (2627/15) [2016] ZANCHC 67 (11 November 2016)

Lotter and Another v Uys (2627/15) [2016] ZANCHC 67 (11 November 2016)

The court found that the applicants established the right of way over the respondent's land based on the 1958 proclamation, supported by both the proclamation and the map annexed by the respondent. The fact that the respondent's farm was not named in the proclamation did not negate the existence of the proclaimed road traversing his land. The applicants were in free and undisturbed possession of the right of way prior to the respondent's spoliation, which occurred when the respondent installed a motorised gate and refused access. The requirements for a spoliation order were met, and the rule nisi was confirmed. The court declined to grant a special costs order, awarding costs on the...

Citation
[2016] ZANCHC 67
Parties
Applicant: Lötter C.J. & 1 Other; Respondent: Uys C
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
11 November 2016
Case Number
2627/15
Procedural Posture
Urgent Application / Opposed Motion on Extended Return Day of Rule Nisi
Outcome
The rule nisi issued on 21 December 2015 is confirmed. The respondent is ordered to pay the applicants' costs on the party-and-party scale.
Judges
Lever
Legal Topics
Right of Way, Spoliation, Interdict, Proclaimed Road, Costs Order
Land and Property Civil Procedure Right of Way Spoliation Interdict Proclaimed Road Costs Order

Case Brief

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Parties

Lötter C.J. & 1 Other

Applicant

Uys C

Respondent

Procedural Posture

Urgent Application / Opposed Motion on Extended Return Day of Rule Nisi

Legal Issues

  1. 1 Whether the applicants established a right of way over the respondent's land based on a proclaimed divisional road.
  2. 2 Whether the respondent's actions constituted spoliation of the applicants' right of way.
  3. 3 Whether the applicants are entitled to confirmation of the interim interdict (rule nisi).

Ratio Decidendi

The court found that the applicants established the right of way over the respondent's land based on the 1958 proclamation, supported by both the proclamation and the map annexed by the respondent. The fact that the respondent's farm was not named in the proclamation did not negate the existence of the proclaimed road traversing his land. The applicants were in free and undisturbed possession of the right of way prior to the respondent's spoliation, which occurred when the respondent installed a motorised gate and refused access. The requirements for a spoliation order were met, and the rule nisi was confirmed. The court declined to grant a special costs order, awarding costs on the...

Court Disposition

The rule nisi issued on 21 December 2015 is confirmed. The respondent is ordered to pay the applicants' costs on the party-and-party scale.

Orders

  • The rule nisi issued out of this court on 21 December 2015 is confirmed.
  • The respondent is ordered to pay the applicants' party-and-party costs.