M.J.D v N.S and Another (5451/2017) [2018] ZAECGHC 5 (30 January 2018)

M.J.D v N.S and Another (5451/2017) [2018] ZAECGHC 5 (30 January 2018)

The court found that the applicant was in possession of the property, as he leased rooms to students and kept personal belongings there. However, the evidence did not establish that he had been unlawfully deprived of possession by the respondents. The movement of his possessions was incidental to renovations, and he retained access and control over the property. Anticipated deprivation is not sufficient for a mandament van spolie, which requires actual unlawful dispossession. The applicant failed to make out a case for interdictory relief, as there was no evidence of violence or reasonable apprehension of harm. The application was refused, and the applicant was ordered to pay costs,...

Citation
[2018] ZAECGHC 5
Parties
Applicant: M.J.D; Respondent: N.S; Respondent: M.X
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
30 January 2018
Case Number
5451/2017
Procedural Posture
Urgent Application / Application for Interdict and Mandament Van Spolie
Outcome
Application refused; costs awarded against applicant.
Judges
T Malusi
Legal Topics
Mandament Van Spolie, Interdict, Possession, Unlawful Deprivation
Civil Procedure Land and Property Mandament Van Spolie Interdict Possession Unlawful Deprivation

Case Brief

Summary, issues, holding and outcome

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Parties

M.J.D

Applicant

N.S

Respondent

M.X

Respondent

Procedural Posture

Urgent Application / Application for Interdict and Mandament Van Spolie

Legal Issues

  1. 1 Whether the applicant was in possession of the property at the relevant time.
  2. 2 Whether the applicant was unlawfully deprived of possession by the respondents.
  3. 3 Whether the requirements for a mandament van spolie were met.

Ratio Decidendi

The court found that the applicant was in possession of the property, as he leased rooms to students and kept personal belongings there. However, the evidence did not establish that he had been unlawfully deprived of possession by the respondents. The movement of his possessions was incidental to renovations, and he retained access and control over the property. Anticipated deprivation is not sufficient for a mandament van spolie, which requires actual unlawful dispossession. The applicant failed to make out a case for interdictory relief, as there was no evidence of violence or reasonable apprehension of harm. The application was refused, and the applicant was ordered to pay costs,...

Court Disposition

Application refused; costs awarded against applicant.

Orders

  • The application is refused.
  • The applicant is ordered to pay the costs of the application including the wasted costs of 19 December 2017.