Moss and Another v Paxton (A46/2011) [2011] ZAWCHC 361 (7 September 2011)

Moss and Another v Paxton (A46/2011) [2011] ZAWCHC 361 (7 September 2011)

The court found that the appellants were unlawfully dispossessed of their peaceful, private, and undisturbed possession of the servitude area when the respondent demolished the boundary walls. The fact that the walls were not situated directly on the servitude area did not negate the appellants' quasi possession, as the walls formed part of the unity of the garden and facilitated the enjoyment of the servitude. The mandament van spolie is designed to prevent self-help and requires restoration of possession, which in this case can be achieved by ordering the respondent to erect similar walls to those previously existing. The Magistrate's Court erred in finding that restoration was...

Citation
[2011] ZAWCHC 361
Parties
Appellant: Kenneth William Moss; Appellant: Sandra Moss; Respondent: Kevin Paxton
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
7 September 2011
Case Number
A46/2011
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court
Outcome
Appeal upheld; Magistrate's order set aside.
Judges
Traverso, Van Staden
Legal Topics
Servitude, Mandament Van Spolie, Quasi Possession, Restoration of Possession
Land and Property Civil Procedure Servitude Mandament Van Spolie Quasi Possession Restoration of Possession

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 2 Party arguments 2
Sign in to unlock

Parties

Kenneth William Moss

Appellant

Sandra Moss

Appellant

Kevin Paxton

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court

Legal Issues

  1. 1 Whether the appellants were unlawfully dispossessed of their quasi possession of the servitude area.
  2. 2 Whether the demolition of the walls by the respondent constituted spoliation.
  3. 3 Whether restoration of possession is possible when the original walls have been demolished.

Ratio Decidendi

The court found that the appellants were unlawfully dispossessed of their peaceful, private, and undisturbed possession of the servitude area when the respondent demolished the boundary walls. The fact that the walls were not situated directly on the servitude area did not negate the appellants' quasi possession, as the walls formed part of the unity of the garden and facilitated the enjoyment of the servitude. The mandament van spolie is designed to prevent self-help and requires restoration of possession, which in this case can be achieved by ordering the respondent to erect similar walls to those previously existing. The Magistrate's Court erred in finding that restoration was...

Court Disposition

Appeal upheld; Magistrate's order set aside.

Orders

  • The respondent is directed to restore the appellants' peaceful, undisturbed and private possession of the garden, including the servitude area, by erecting walls similar to those which previously existed on lines ax and dy respectively on Plan C 2625/1.
  • The respondent is ordered to pay the costs of this application.