Ngaka Modiri Molema District Municiality v Geldenhuys and Others (2043/2011) [2012] ZANWHC 62 (5 November 2012)

Ngaka Modiri Molema District Municiality v Geldenhuys and Others (2043/2011) [2012] ZANWHC 62 (5 November 2012)

The court found that the first respondent, although not the direct actor, ratified and benefitted from the spoliation by Ms Potgieter, his life partner, and thus was a co-spoliator. The first respondent's conduct in not intervening and accepting the locked gates, which deprived the applicant and thousands of households of water, justified the punitive cost order. The second respondent, however, was not present or involved in the locking of the gate, and her citation was based on mistaken identity; thus, the cost order against her was not justified and was rescinded. The court exercised its discretion under Rule 6(12)(c) to reconsider the cost orders, condoned the delay in bringing the...

Citation
[2012] ZANWHC 62
Parties
Applicant: Ngaka Modiri Molema District Municipality; Respondent: Jacobus Muller Geldenhuys; Respondent: Catharina Anna Johanna Geldenhuys; Respondent: Jacobus Muller Geldenhuys N.O.; Respondent: Catharina Anna Johanna Scott N.O.; Respondent: Gideon Petrus Du Preez N.O.; Respondent: Cornelius Johannes Du Rand N.O.; Respondent: Sanko Boerdery (Pty) Limited
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
5 November 2012
Case Number
2043/2011
Procedural Posture
Urgent Application / Application for Reconsideration of Urgent Order Under Rule 6(12)(c)
Outcome
The orders against the second respondent are rescinded and set aside; the orders against the first respondent stand and are enforceable; costs are awarded to the applicant against the first respondent and to the second respondent against the applicant.
Judges
N. Gutta
Legal Topics
Spoliation, Mandament Van Spolie, Urgent Interdict, Costs Order, Service of Process
Civil Procedure Land and Property Spoliation Mandament Van Spolie Urgent Interdict Costs Order Service of Process

Case Brief

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Parties

Ngaka Modiri Molema District Municipality

Applicant

Jacobus Muller Geldenhuys

Respondent

Catharina Anna Johanna Geldenhuys

Respondent

Jacobus Muller Geldenhuys N.O.

Respondent

Catharina Anna Johanna Scott N.O.

Respondent

Gideon Petrus Du Preez N.O.

Respondent

Cornelius Johannes Du Rand N.O.

Respondent

Sanko Boerdery (Pty) Limited

Respondent

Procedural Posture

Urgent Application / Application for Reconsideration of Urgent Order Under Rule 6(12)(c)

Legal Issues

  1. 1 Whether the cost order granted against the first and second respondents in the urgent spoliation application should be rescinded.
  2. 2 Whether the first and second respondents were co-spoliators and liable for the deprivation of access to the servitude area.
  3. 3 Whether service of process on the respondents' attorney was proper and whether the respondents' absence was justified.

Ratio Decidendi

The court found that the first respondent, although not the direct actor, ratified and benefitted from the spoliation by Ms Potgieter, his life partner, and thus was a co-spoliator. The first respondent's conduct in not intervening and accepting the locked gates, which deprived the applicant and thousands of households of water, justified the punitive cost order. The second respondent, however, was not present or involved in the locking of the gate, and her citation was based on mistaken identity; thus, the cost order against her was not justified and was rescinded. The court exercised its discretion under Rule 6(12)(c) to reconsider the cost orders, condoned the delay in bringing the...

Court Disposition

The orders against the second respondent are rescinded and set aside; the orders against the first respondent stand and are enforceable; costs are awarded to the applicant against the first respondent and to the second respondent against the applicant.

Orders

  • The orders granted against the second respondent in prayers 1, 2 and 3 on 06 December 2011 are rescinded and set aside.
  • The order granted against the first respondent in prayers 1, 2 and 3 on 06 December 2011 stands and is enforceable.