New Invest 197 (Pty) Limited and Another v Moss (2206/2023) [2024] ZAECELLC 48 (1 October 2024)

New Invest 197 (Pty) Limited and Another v Moss (2206/2023) [2024] ZAECELLC 48 (1 October 2024)

The court found that the respondent unlawfully raised the dam wall on the applicants' property without their consent, performed earthworks, and destroyed the boundary fence and indigenous vegetation. The respondent also unlawfully restricted the applicants' access to their property by installing an electric gate and excavating a trench across the Old Transkei Road. The respondent conceded key facts and undertook to comply with environmental rehabilitation, but the court held that restoration must occur under expert supervision and at the respondent's cost. The respondent is ordered to restore access, repair the road and fence, rehabilitate environmental damage, and pay costs on an...

Citation
[2024] ZAECELLC 48
Parties
Applicant: New Invest 197 (Pty) Limited; Applicant: Hester Petronella Botha; Respondent: Allan Lawrence Moss
Court
Eastern Cape High Court, East London Local Court
Jurisdiction
South Africa
Judgment Date
1 October 2024
Case Number
2206/2023
Procedural Posture
Urgent Application / Judgment
Outcome
Application granted with costs against the respondent on an attorney and client scale.
Judges
M Makaula
Legal Topics
Unlawful Earthworks, Environmental Rehabilitation, Access to Property, Boundary Dispute, Interdict, National Environmental Management Act
Land and Property Environmental Law Civil Procedure Unlawful Earthworks Environmental Rehabilitation Access to Property Boundary Dispute Interdict +1 more

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Parties

New Invest 197 (Pty) Limited

Applicant

Hester Petronella Botha

Applicant

Allan Lawrence Moss

Respondent

Procedural Posture

Urgent Application / Judgment

Legal Issues

  1. 1 Whether the respondent unlawfully constructed a dam, fence, and earthworks on the applicants' property, destroying natural vegetation.
  2. 2 Whether the respondent is liable to remove the unlawful structures and restore the property to its previous condition.
  3. 3 Whether the respondent unlawfully restricted the applicants' access to their property via the Old Transkei Road.

Ratio Decidendi

The court found that the respondent unlawfully raised the dam wall on the applicants' property without their consent, performed earthworks, and destroyed the boundary fence and indigenous vegetation. The respondent also unlawfully restricted the applicants' access to their property by installing an electric gate and excavating a trench across the Old Transkei Road. The respondent conceded key facts and undertook to comply with environmental rehabilitation, but the court held that restoration must occur under expert supervision and at the respondent's cost. The respondent is ordered to restore access, repair the road and fence, rehabilitate environmental damage, and pay costs on an...

Court Disposition

Application granted with costs against the respondent on an attorney and client scale.

Orders

  • The respondent must restore unfettered access to farm 1337 via the Old Transkei Road, including unlocking gates or providing a remote control.
  • The respondent is interdicted from obstructing access to farm 1337, entering the property, or authorizing others to do so without written permission.