Reck v Mills and Another (153/89) [1989] ZASCA 155; [1990] 1 All SA 560 (A) (27 November 1989)

Reck v Mills and Another (153/89) [1989] ZASCA 155; [1990] 1 All SA 560 (A) (27 November 1989)

The court held that Mills failed to establish the necessary physical possession of the large condenser to qualify for a mandament van spolie. The evidence did not show that Mills had exclusive physical control over the condenser, nor that he was unlawfully deprived of such possession by Reck or Hartman. Mills's actions, such as attaching a rope and buoy, were insufficient to constitute possession in the legal sense. Consequently, Mills was not entitled to spoliatory relief or an interdict, whether temporary or permanent. The court further found that the delay in filing the notice of appeal and record was solely attributable to Reck's attorney, Strauss, whose conduct amounted to gross...

Citation
[1989] ZASCA 155
Parties
Appellant: Reck; Respondent: Mills; Respondent: Hartman
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 November 1989
Case Number
153/89
Procedural Posture
Civil Appeal / Appeal From the Cape Provincial Division
Outcome
Appeal upheld; application dismissed with costs.
Judges
Joubert, Hefer, Nestadt, Eksteen, Grosskopf
Legal Topics
Mandament Van Spolie, Possessory Interdict, Derelict Property, Occupatio, Condonation of Late Filing
Civil Procedure Land and Property Mandament Van Spolie Possessory Interdict Derelict Property Occupatio Condonation of Late Filing

Case Brief

Summary, issues, holding and outcome

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Parties

Reck

Appellant

Mills

Respondent

Hartman

Respondent

Procedural Posture

Civil Appeal / Appeal From the Cape Provincial Division

Legal Issues

  1. 1 Whether Mills was entitled to a mandament van spolie against Reck and Hartman.
  2. 2 Whether Mills had physical possession of the large condenser from the Antipolis wreck.
  3. 3 Whether Mills was entitled to a temporary or permanent interdict against Reck and Hartman.

Ratio Decidendi

The court held that Mills failed to establish the necessary physical possession of the large condenser to qualify for a mandament van spolie. The evidence did not show that Mills had exclusive physical control over the condenser, nor that he was unlawfully deprived of such possession by Reck or Hartman. Mills's actions, such as attaching a rope and buoy, were insufficient to constitute possession in the legal sense. Consequently, Mills was not entitled to spoliatory relief or an interdict, whether temporary or permanent. The court further found that the delay in filing the notice of appeal and record was solely attributable to Reck's attorney, Strauss, whose conduct amounted to gross...

Court Disposition

Appeal upheld; application dismissed with costs.

Orders

  • Condonation for late filing is granted; costs thereof to be paid by attorney W P Strauss de bonis propriis.
  • The appeal succeeds against the first respondent with costs.