Oosthuizen v Terblanche (A84/2021, A85/2021, A86/2021) [2022] ZAFSHC 81 (24 March 2022)

Oosthuizen v Terblanche (A84/2021, A85/2021, A86/2021) [2022] ZAFSHC 81 (24 March 2022)

The court found that the cumulative conduct of the appellant did not meet the threshold for harassment under the Protection from Harassment Act, as the communications and actions, though acrimonious, were not unreasonable in the circumstances and did not cause the requisite harm. The interim protection order should have been discharged. Regarding the spoliation applications, the appellant had peaceful and undisturbed possession of the access routes and was unlawfully deprived thereof by the respondent's unilateral actions, satisfying the requirements for the mandament van spolie in the first application. The second spoliation application failed on the merits, as the respondent had...

Citation
[2022] ZAFSHC 81
Parties
Appellant: Jacobus Du Plessis Oosthuizen; Respondent: Elizabeth Sophia Terblanche
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
24 March 2022
Case Number
A84/2021, A85/2021, A86/2021
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court Orders on Protection From Harassment and Spoliation Applications
Outcome
Appeal in respect of the protection order (A84/2021) upheld; protection order discharged. Appeal in respect of first spoliation application (A85/2021) upheld; spoliation order confirmed. Appeal in respect of second spoliation application (A86/2021) dismissed with costs.
Judges
Daffue, Ramlal
Legal Topics
Protection From Harassment Act, Mandament Van Spolie, Right of Way, Servitude by Prescription, Ex Parte Applications, Costs Orders
Civil Procedure Family and Children Land and Property Protection From Harassment Act Mandament Van Spolie Right of Way Servitude by Prescription Ex Parte Applications +1 more

Case Brief

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Parties

Jacobus Du Plessis Oosthuizen

Appellant

Elizabeth Sophia Terblanche

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court Orders on Protection From Harassment and Spoliation Applications

Legal Issues

  1. 1 Whether the cumulative conduct of the appellant constituted harassment under the Protection from Harassment Act.
  2. 2 Whether the appellant was unlawfully deprived of peaceful and undisturbed possession of access routes, justifying spoliation relief.
  3. 3 Whether the court a quo erred in amending the protection order to restrict the appellant's right of access.

Ratio Decidendi

The court found that the cumulative conduct of the appellant did not meet the threshold for harassment under the Protection from Harassment Act, as the communications and actions, though acrimonious, were not unreasonable in the circumstances and did not cause the requisite harm. The interim protection order should have been discharged. Regarding the spoliation applications, the appellant had peaceful and undisturbed possession of the access routes and was unlawfully deprived thereof by the respondent's unilateral actions, satisfying the requirements for the mandament van spolie in the first application. The second spoliation application failed on the merits, as the respondent had...

Court Disposition

Appeal in respect of the protection order (A84/2021) upheld; protection order discharged. Appeal in respect of first spoliation application (A85/2021) upheld; spoliation order confirmed. Appeal in respect of second spoliation application (A86/2021) dismissed with costs.

Orders

  • The appellant's appeal in appeal A84/2021 is upheld.
  • The order of the court a quo is rescinded and substituted: the rule nisi issued on 11 November 2020 is discharged; each party shall pay his/her own costs.