Mantella Trading 341 CC v Thompson NO and Another (19069/2009) [2009] ZAGPPHC 187 (5 May 2009)

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH GAUTENG PROVINCIAL DIVISION)

Case number: 19069/2009

Date: 5/05/2009

MANTELLA TRADING 341 CC..............................................................First Applicant

MARTHUINUS PETRUS CHRISTIAAN BAMBERGER …............Second Applicant

ANANJA LOUISA BAMBERGER...........................................................Third Applicant

ABEL DISANE MOLOANTOA.............................................................Fourth Applicant

JOEL NGOBENI........................................................................................Fifth Applicant

LESIBA WILLY MOROATSE...................................................................Sixth Applicant

MADUMETJA JHON MOLOATSE …................................................Seventh Applicant

and

MARK BYRON THOMPSON N.O. ….................................................First Respondent

MICHELLE CECILE THOMPSON N.O. …..................................Second Respondent

JUDGMENT

PRETORIUS J,

This application is an urgent application in which the relief requested is that the first to seventh applicants be restored in their peaceful and undisturbed possession of the existing (old) road over the property of Mbala Lodge Trust as indicated on the annexures to the founding affidavit.

In the alternative that the first and second respondents be interdicted from interfering with first to seventh respondents’ use of the road over the Mbala Lodge Trust property, pending the finalization of the action instituted by the applicants.

The third prayer is that the Mbala Lodge Trust and the respondents be ordered to remove the fence that was erected across the existing road and to re-establish the status quo by re-installing the previous gate on the said road.

This matter was brought on a semi- urgent basis, as the application was launched on 1 April 2009. The respondents had to file their opposing affidavits on or before 7 April 2009. The applicants had to file their replying affidavits on 16 April 2009 to ensure that the matter would be heard on 21 April 2009.

The respondents only filed their opposing papers on 17 April 2009 at 19h55, making it impossible for the applicants to file the reply within the time limits.

The replying affidavit was filed on 21 April 2009.

This application is in essence a ’’mandament van spolie”, according to the applicants.

This court decided to hear the question of urgency at the same time as the merits of the matter.

Mr. Strydom, for the applicant, argued that should the matter be heard in the normal course of the roll, it would take at least 6 months for the matter to be heard. In the interim the applicants would not be able to use the road.

It is common cause that the applicants had peaceful and undisturbed use of the road in question since, at least 1911. The road was used by the applicants who had keys to the gates installed on the road. These keys were supplied to all users of the road after the western bypass had been completed.

At the beginning of March 2009 the respondents unilaterally decided to close the road by erecting a fence in the place where the gate was at the entrance to their property, thus causing the closure of the road.

In Le Riche v PSP Properties CC and Others 2005(3) SA 189 CPD at 193

Yekiso J found that the mandament van spolie:

"... is an extraordinary, robust and speedy remedy.’’

The applicants only have to allege and prove (i) peaceful and undisturbed possession and (ii) unlawful deprivation of such possession.

The only question this court has to decide in regards to the mandament van spolie is whether there has been spoliation. To be able to decide this the court has to find that the applicants were in de facto possession. This also includes incorporeal rights - the cases of quasi possession.

In Bon Quelle (Edms) Bpk v Munisipaiiteit Otavi 1989(1) 508 AD Hefer JA found at p514:

“’n Onliggaamlike saak soos ‘n serwituut is natuurlik nie vatbaar vir fisiese ‘besit’ in dieselfde sin as wat daardie

uitdrukking gebruik word met betrekking tot liggaamlike sake nie, maar wei vir quasi- possessio wat bestaan uit die daadwerklike

gebruik van die serwituut....In die samehang van die mandament van spoiie neem, soos later sal blyk, die daadwerklike gebruik van ‘n beweerde serwituut die plek van die besit van ‘n liggaamlike saak. ’’

Hefer JA further found at p515:

“Dit is nogtans hoe die mandament van spolie ontwikkel het en die iogiese beswaar vervaag wanneer in gedagte gehou word dat die mandament gemik is bioot op die herstei van die feitelike toestand wat vantevore bestaan het en wat deur appellant se eiegeregtige optrede versteur is."

The applicants’ case is that the right to the road was used at different times by different people. The road was used by the

applicants, their family, the employees and contractors even after the western road had been completed. Contrary to Mr. Vorster’s

allegation that the applicants only averred in the replying affidavit that the keys to the gates on the road was still used after the new road had been completed, it was quite clearly set out in the applicants’ founding affidavit:

’’After the new western road was established, we obtained keys for the locks on the existing road giving us free access thereto until the deprivation during March 2009. ”

This is not denied by the respondents. They only state:

"I am doubtful that the old road may have been used by various persons up to the time when I closed it where it enters the property of the respondents."

The respondents further state:

"In any event, the old road could never have been a public right of way until now as locked gates were installed on all the properties including the property of the first applicant. Only property owners had keys to the relevant gates.”

The respondents admit that Mr. Bamberger, the second applicant’s father, used the road recently when there was a problem with the Telkom lines, as well as the fact that Mr. Bamberger had moved cattle from portions 1 and 2 of the farm to portions 7 and 8 of the farm utilizing the road. Furthermore the respondents merely deny the fact that the second and third applicants use the road continuously. The respondents admit that the road was historically used until it was closed by the respondents. The respondents do not reside on the farm.

It is quite clear from Mr. Makuru’s statement annexed to the respondents’ opposing papers, that even the respondents had occasion to use the old road, after the new road had been constructed. He also admits that.

I have only very occasionally seen Mr. Bamberger on the old road."

Ms Annah Tswinyana states on behalf of the respondents:

’’The old road was not used a lot. We did not see or hear trucks nor(sic) people using the old road too much. ”

These statements confirm that the old road was still used. This is further confirmed by the fourth to seventh applicants who state that when they returned from vacation on 9 March 2009 the existing road was closed by a fence. The only inference the court can draw from this, is that they would not have used this road if they had not been utilizing it.

Having regard to all the evidence I cannot but come to the conclusion that the applicants, or at least the first, second and third applicants were in quasi possession of the old road.

The respondents rely on an e-mail dated 6 December 2005, which according to them is an agreement.

The portion of the e-mail the respondents rely on reads as follows:

“As discussed with yourself on Tuesday, December 06, 2005 construction of the new servitude can begin immediately. It is envisaged that the servitude will be fully functional by February 2006; thereafter we will close the current road"

The second applicant says the first time he saw this e-mail was at the drawing of the replying affidavit. He denies, in any event, that it constitutes an agreement.

The next correspondence relating to the closure of the road is the e-mail sent by the first respondent on 23 February 2009. This e-mail was only received by the second applicant on 4 March 2009, on his return from overseas. This e-mail makes no reference to any agreement, but reads:

“Further to our correspondence and discussions in December 2005 and our subsequent construction of the new servitude road for our respective properties in 2006, we felt that the time was now appropriate to advise of our intention to remove our gate and close off our property at our front Grootfontein entrance. ”

The first respondent continues:

"After closely monitoring the old road through our properties since October 2008, we can advise that the traffic through our mutual properties has been almost zero"

I must agree with Mr Strydom , for the applicants, that such a survey would have been totally unnecessary if there was an agreement

regarding the closure of the old road. Furthermore, the first respondent says that the traffic was almost zero - indicating that

there was still traffic using the road. No further mention is made of the survey in any of the opposing affidavits.

Telkom and Escom also used the oid road to maintain the telephone and electricity lines respectively.

I have come to the conclusion that the applicants have proved they were in possession of the road and had access to the road on a continuous basis, as the respondents had supplied them all with keys to the gates on the road, after the western bypass had been completed.

As to the second leg of spoliation, that the respondents deprived them wrongfully of possession without their consent , it is clear that there was no agreement. The applicants have also proved on a preponderance of probabilities that the respondents have deprived

them wrongfully of their possession without their consent.

I am not making any finding regarding the alternative remedy, as I have found that the applicants are successful with their application for a mandament van spolie

I make the following order:

1. That the first to and including the seventh applicants be restored in their peaceful and undisturbed possession of the existing road over the property of Mbala Lodge Trust, which road is indicated in red on annexures “MB2" and “MB3” to the applicants’ founding affidavit;

2. That the respondents must pay the costs of the application.

C Pretorious

Judge of the High Court

Case number : 19069/2009

Heard on: 23 April 2009

For the Applicant: T Strydom

Instructed by: Wagenar

For the Respondent: L J Vorster

Instructed by: SC Prinsloo Bekker Inc

Date of Judament