Tyjaderlin Properties CC v Malan and Another (1487/2015) [2016] ZAFSHC 5 (22 January 2016)

Tyjaderlin Properties CC v Malan and Another (1487/2015) [2016] ZAFSHC 5 (22 January 2016)

The applicant and its members had peaceful and undisturbed access to the Vaal Dam via the motor gate on erf 1871, Deneysville, which was unlawfully denied by the respondents when the gate was locked and obstructed. Despite the applicant's incorrect reliance on a servitude of right of way, the evidence established possession and unlawful deprivation, satisfying the requirements for the mandament van spolie. The respondents' denials were found to be bare, untenable, and contradicted by their own concessions and the evidence of the previous owner. The court confirmed the rule nisi, granting restoration of access, but penalised the applicant by awarding only 50% of party and party costs due...

Citation
[2016] ZAFSHC 5
Parties
Applicant: Tyjaderlin Properties CC; Respondent: Stephanus Philippus Malan; Respondent: Rus 'n Bietjie Resort (Pty) Ltd
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
22 January 2016
Case Number
1487/2015
Procedural Posture
Urgent Application / Extended Return Date of Rule Nisi; Final Determination of Interim Interdict
Outcome
Rule nisi confirmed; respondents ordered to restore access and pay 50% of applicant's party and party costs, jointly and severally.
Judges
J.P. Daffue
Legal Topics
Mandament Van Spolie, Servitude Right of Way, Interim Interdict, Ex Parte Applications
Civil Procedure Land and Property Mandament Van Spolie Servitude Right of Way Interim Interdict Ex Parte Applications

Case Brief

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Parties

Tyjaderlin Properties CC

Applicant

Stephanus Philippus Malan

Respondent

Rus 'n Bietjie Resort (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Extended Return Date of Rule Nisi; Final Determination of Interim Interdict

Legal Issues

  1. 1 Whether the applicant was in peaceful and undisturbed possession of access to the Vaal Dam via the motor gate.
  2. 2 Whether the respondents unlawfully deprived the applicant of such possession, justifying relief under the mandament van spolie.
  3. 3 Whether the applicant's misstatement regarding the existence of a servitude of right of way should affect the relief granted or costs awarded.

Ratio Decidendi

The applicant and its members had peaceful and undisturbed access to the Vaal Dam via the motor gate on erf 1871, Deneysville, which was unlawfully denied by the respondents when the gate was locked and obstructed. Despite the applicant's incorrect reliance on a servitude of right of way, the evidence established possession and unlawful deprivation, satisfying the requirements for the mandament van spolie. The respondents' denials were found to be bare, untenable, and contradicted by their own concessions and the evidence of the previous owner. The court confirmed the rule nisi, granting restoration of access, but penalised the applicant by awarding only 50% of party and party costs due...

Court Disposition

Rule nisi confirmed; respondents ordered to restore access and pay 50% of applicant's party and party costs, jointly and severally.

Orders

  • The rule nisi of 2 April 2015 is confirmed.
  • Respondents are ordered to restore applicant's undisturbed access to the Vaal Dam via the motor gate on the border of erf 1871, Deneysville.