Mthethwa and Others v Bester (LCC 112/2011) [2018] ZALCC 17 (18 September 2018)

Mthethwa and Others v Bester (LCC 112/2011) [2018] ZALCC 17 (18 September 2018)

The court found that the main application was not a spoliation but rather a claim for specific performance of a contractual right. The relief sought by the applicants related to restoration of grazing rights, which is not the subject of spoliation proceedings. The authorities cited make it clear that spoliation is...

Source-derived case information.

Citation
[2018] ZALCC 17
Parties
Applicant: Philani Obed Mthethwa; Applicant: Paulos Elliot Sithole; Applicant: Bhekizizwe Adolphas Nene; Applicant: Hlangabaza Alfred Ximba; Applicant: Jabulani Mlahlwa Sigazi; Applicant: Lucky Richard Dubaza; Applicant: Tiki Johannes Sithole; Respondent: Ben Bester
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
18 September 2018
Case Number
LCC 112/2011
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Judgment and Order of 20 April 2018
Outcome
Application for leave to appeal dismissed; no order as to costs.
Judges
Canca
Legal Topics
Spoliation, Grazing Rights, Specific Performance, Conservation of Agricultural Resources Act, Leave to Appeal
Land and Property Civil Procedure Spoliation Grazing Rights Specific Performance Conservation of Agricultural Resources Act Leave to Appeal

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Parties

Philani Obed Mthethwa

Applicant

Paulos Elliot Sithole

Applicant

Bhekizizwe Adolphas Nene

Applicant

Hlangabaza Alfred Ximba

Applicant

Jabulani Mlahlwa Sigazi

Applicant

Lucky Richard Dubaza

Applicant

Tiki Johannes Sithole

Applicant

Ben Bester

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Judgment and Order of 20 April 2018

Legal Issues

  1. 1 Whether the main application was correctly characterized as a spoliation or as a claim for specific performance of a contractual right.
  2. 2 Whether the court erred in failing to consider the issue of spoliation.
  3. 3 Whether the reduction of grazing area constituted spoliation and whether CARA was violated as a result.

Ratio Decidendi

The court found that the main application was not a spoliation but rather a claim for specific performance of a contractual right. The relief sought by the applicants related to restoration of grazing rights, which is not the subject of spoliation proceedings. The authorities cited make it clear that spoliation is concerned with possession, not rights. The applicants' reliance on spoliation was misplaced, and the court was entitled to disregard that aspect of their case. The counter application was correctly granted under CARA, as the respondent was obliged to act in terms of the regulations to prevent overgrazing and land degradation. The court concluded that there was no reasonable...

Court Disposition

Application for leave to appeal dismissed; no order as to costs.

Orders

  • The application for leave to appeal is dismissed.
  • There is no order as to costs.