Lydall and Another v Roxton Wiggill and Another (2019/21429) [2019] ZAGPJHC 281 (7 August 2019)

Lydall and Another v Roxton Wiggill and Another (2019/21429) [2019] ZAGPJHC 281 (7 August 2019)

The court found that the applicants were unlawfully deprived of joint possession of part of the property by the first respondent, who fenced off the area without their consent. The respondent failed to prove any legally enforceable agreement or consent by the applicants to the deprivation. The draft agreement relied upon by the respondent was never signed, and the mediator's correspondence confirmed that no firm agreement had been reached. The implementation of certain arrangements did not amount to acceptance of the entire proposal. In motion proceedings, affidavits serve as both pleadings and evidence, and the respondent did not plead or prove tacit acceptance. Accordingly, the...

Citation
[2019] ZAGPJHC 281
Parties
Applicant: Lydall, RW; Applicant: Lydall, RA; Respondent: Roxton-Wiggill, AA; Respondent: Nedbank Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
7 August 2019
Case Number
2019/21429
Procedural Posture
Urgent Application / Part A: Interim Spoliation Relief
Outcome
Application for spoliation relief granted in favour of the applicants.
Judges
WHG Van der Linde
Legal Topics
Mandament Van Spolie, Joint Possession, Unlawful Deprivation, Urgent Interim Relief
Civil Procedure Land and Property Mandament Van Spolie Joint Possession Unlawful Deprivation Urgent Interim Relief

Case Brief

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Parties

Lydall, RW

Applicant

Lydall, RA

Applicant

Roxton-Wiggill, AA

Respondent

Nedbank Ltd

Respondent

Procedural Posture

Urgent Application / Part A: Interim Spoliation Relief

Legal Issues

  1. 1 Whether the applicants were unlawfully deprived of joint possession of part of the property by the first respondent.
  2. 2 Whether the applicants consented to the fencing off and deprivation of possession.
  3. 3 Whether spoliation relief is available in cases of joint possession.

Ratio Decidendi

The court found that the applicants were unlawfully deprived of joint possession of part of the property by the first respondent, who fenced off the area without their consent. The respondent failed to prove any legally enforceable agreement or consent by the applicants to the deprivation. The draft agreement relied upon by the respondent was never signed, and the mediator's correspondence confirmed that no firm agreement had been reached. The implementation of certain arrangements did not amount to acceptance of the entire proposal. In motion proceedings, affidavits serve as both pleadings and evidence, and the respondent did not plead or prove tacit acceptance. Accordingly, the...

Court Disposition

Application for spoliation relief granted in favour of the applicants.

Orders

  • An order issues in terms of the draft order handed up by the applicants, marked 'X', initialled and dated by the judge.
  • The costs of the application will be costs in the cause of part B of the application.