Niehaus v High Meadow Grove Body Corporate (40667/2018) [2018] ZAGPJHC 712; 2020 (5) SA 197 (GJ) (13 November 2018)

Niehaus v High Meadow Grove Body Corporate (40667/2018) [2018] ZAGPJHC 712; 2020 (5) SA 197 (GJ) (13 November 2018)

The court held that the applicant's possession of the apartment included the incorporeal right to use electricity, which is an incident of her occupation. The reduction of electricity supply by the body corporate, regardless of whether it was total or partial, constituted spoliation. The respondent's reliance on contractual terms or scheme rules did not override the applicant's possessory rights, as spoliation relief protects real rights enforceable against the world at large, not merely personal or contractual rights. The court found the matter urgent and determined that the applicant was entitled to restoration of full electricity supply. The request for attorney and client costs was...

Citation
[2018] ZAGPJHC 712
Parties
Applicant: Claudia Niehaus; Respondent: High Meadow Grove Body Corporate
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
13 November 2018
Case Number
40667/2018
Procedural Posture
Urgent Application / First Instance
Outcome
Application granted in part; electricity supply to the applicant's property to be restored; costs awarded on party and party scale.
Judges
Van der Linde
Legal Topics
Mandament Van Spolie, Sectional Titles Schemes Management Act, Quasi Possession, Levy Arrears, Electricity Supply, Urgent Interdict
Civil Procedure Land and Property Mandament Van Spolie Sectional Titles Schemes Management Act Quasi Possession Levy Arrears Electricity Supply Urgent Interdict

Case Brief

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Parties

Claudia Niehaus

Applicant

High Meadow Grove Body Corporate

Respondent

Procedural Posture

Urgent Application / First Instance

Legal Issues

  1. 1 Whether the reduction of electricity supply by the body corporate constitutes spoliation remediable by the mandament van spolie.
  2. 2 Whether the applicant's right to electricity supply is an incident of possession of immovable property deserving of protection.
  3. 3 Whether partial deprivation of electricity supply amounts to spoliation.

Ratio Decidendi

The court held that the applicant's possession of the apartment included the incorporeal right to use electricity, which is an incident of her occupation. The reduction of electricity supply by the body corporate, regardless of whether it was total or partial, constituted spoliation. The respondent's reliance on contractual terms or scheme rules did not override the applicant's possessory rights, as spoliation relief protects real rights enforceable against the world at large, not merely personal or contractual rights. The court found the matter urgent and determined that the applicant was entitled to restoration of full electricity supply. The request for attorney and client costs was...

Court Disposition

Application granted in part; electricity supply to the applicant's property to be restored; costs awarded on party and party scale.

Orders

  • The respondent is directed to restore the electricity supply to the applicant's property at number 29 High Meadow Grove, Estelle Road, Paulshof, Johannesburg.
  • Costs are awarded in favour of the applicant on the scale as between party and party.