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

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

The court found that the applicants, at least the first, second, and third, were in quasi possession of the old road over the Mbala Lodge Trust property. The evidence showed continuous use of the road by the applicants, their family, employees, contractors, and utility companies, with keys provided to all users...

Source-derived case information.

Citation
[2009] ZAGPPHC 187
Parties
Applicant: Mantella Trading 341 CC; Applicant: Marthuinus Petrus Christiaan Bamberger; Applicant: Ananja Louisa Bamberger; Applicant: Abel Disane Moloantoa; Applicant: Joel Ngobeni; Applicant: Lesiba Willy Moroatse; Applicant: Madumetja Jhon Moloatse; Respondent: Mark Byron Thompson N.O.; Respondent: Michelle Cecile Thompson N.O.
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
5 May 2009
Case Number
19069/2009
Procedural Posture
Urgent Application / Application for Mandament Van Spolie
Outcome
Application granted. The applicants are restored to possession of the road. Costs awarded against the respondents.
Judges
C Pretorious
Legal Topics
Mandament Van Spolie, Quasi Possession, Unlawful Deprivation, Urgent Interdict
Land and Property Civil Procedure Mandament Van Spolie Quasi Possession Unlawful Deprivation Urgent Interdict

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Parties

Mantella Trading 341 CC

Applicant

Marthuinus Petrus Christiaan Bamberger

Applicant

Ananja Louisa Bamberger

Applicant

Abel Disane Moloantoa

Applicant

Joel Ngobeni

Applicant

Lesiba Willy Moroatse

Applicant

Madumetja Jhon Moloatse

Applicant

Mark Byron Thompson N.O.

Respondent

Michelle Cecile Thompson N.O.

Respondent

Procedural Posture

Urgent Application / Application for Mandament Van Spolie

Legal Issues

  1. 1 Whether the applicants were in peaceful and undisturbed possession of the road over the Mbala Lodge Trust property.
  2. 2 Whether the respondents unlawfully deprived the applicants of possession of the road.
  3. 3 Whether the requirements for the mandament van spolie are satisfied.

Ratio Decidendi

The court found that the applicants, at least the first, second, and third, were in quasi possession of the old road over the Mbala Lodge Trust property. The evidence showed continuous use of the road by the applicants, their family, employees, contractors, and utility companies, with keys provided to all users after the western bypass was completed. The respondents' closure of the road by erecting a fence was unilateral and not based on any binding agreement. The respondents admitted historical use and did not effectively dispute ongoing use. The requirements for the mandament van spolie were satisfied: peaceful and undisturbed possession and unlawful deprivation without consent. The...

Court Disposition

Application granted. The applicants are restored to possession of the road. Costs awarded against the respondents.

Orders

  • The first to seventh applicants are restored in their peaceful and undisturbed possession of the existing road over the property of Mbala Lodge Trust, as indicated in red on annexures 'MB2' and 'MB3' to the founding affidavit.
  • The respondents must pay the costs of the application.