Snijders v Goosen (5301/2011) [2012] ZAFSHC 27 (8 March 2012)

Snijders v Goosen (5301/2011) [2012] ZAFSHC 27 (8 March 2012)

The court found that the respondent's actions in rerouting the road, extending its length, and digging trenches constituted a substantial and unlawful disturbance of the applicant's possession and use of the road. The provision of an alternative route did not negate the fact that the applicant was deprived of the original use and enjoyment of the road. The respondent's denial of responsibility for the second trench was not credible given the circumstances. The court held that the mandament van spolie is a robust remedy designed to restore possession as it existed before the disturbance, irrespective of the merits or convenience. Accordingly, the applicant was entitled to restoration of...

Citation
[2012] ZAFSHC 27
Parties
Applicant: Jean Pierre Snijders; Respondent: Danie Goosen
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
8 March 2012
Case Number
5301/2011
Procedural Posture
Urgent Application / First Instance Judgment
Outcome
Application granted; respondent ordered to restore the applicant's possession and use of the road and to pay costs.
Judges
J Y Claasen
Legal Topics
Mandament Van Spolie, Possessory Remedy, Access Rights, Fact Disturbance, Interdict, Restoration of Possession
Land and Property Civil Procedure Mandament Van Spolie Possessory Remedy Access Rights Fact Disturbance Interdict Restoration of Possession

Case Brief

Summary, issues, holding and outcome

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Parties

Jean Pierre Snijders

Applicant

Danie Goosen

Respondent

Procedural Posture

Urgent Application / First Instance Judgment

Legal Issues

  1. 1 Whether the applicant's possession and use of the farm road was unlawfully disturbed by the respondent.
  2. 2 Whether the respondent's actions in altering and obstructing the road constitute spoliation.
  3. 3 Whether the provision of an alternative route negates the applicant's claim for restoration of possession.

Ratio Decidendi

The court found that the respondent's actions in rerouting the road, extending its length, and digging trenches constituted a substantial and unlawful disturbance of the applicant's possession and use of the road. The provision of an alternative route did not negate the fact that the applicant was deprived of the original use and enjoyment of the road. The respondent's denial of responsibility for the second trench was not credible given the circumstances. The court held that the mandament van spolie is a robust remedy designed to restore possession as it existed before the disturbance, irrespective of the merits or convenience. Accordingly, the applicant was entitled to restoration of...

Court Disposition

Application granted; respondent ordered to restore the applicant's possession and use of the road and to pay costs.

Orders

  • The respondent is ordered to immediately restore the applicant and previous users' free and undisturbed use of the road over Bergplaats to Houthoek, reopen the road, fill in the trenches dug across it, and restore the road to its condition immediately prior to the damage and rerouting.
  • The respondent is ordered to pay the applicant's costs.