Vale Holdings (Pty) Ltd v Tendaupenyu NO and Others (70153/16) [2017] ZAGPPHC 952 (8 December 2017)

Vale Holdings (Pty) Ltd v Tendaupenyu NO and Others (70153/16) [2017] ZAGPPHC 952 (8 December 2017)

Condonation for the late filing of the respondents' opposing affidavit was granted due to the bona fide explanation, importance of the matter, and prospects of success. The application for rescission of the consent order failed because the respondents did not misrepresent that the servitude was registered in their...

Source-derived case information.

Citation
[2017] ZAGPPHC 952
Parties
Applicant: Vale Holdings (Pty) Ltd; Respondent: Wesley Tendaupenyu NO; Respondent: R.J.M Velosa NO; Respondent: The Trustees from time to time of the Makondo Property Trust; Respondent: Mabunda Property Holdings (Pty) Ltd; Respondent: Remaining Extent of Portion 5 of the Farm Windhoek CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
8 December 2017
Case Number
70153/16
Procedural Posture
Civil Application / Opposed Application for Rescission, Interdict, and Counter Application for Servitude Registration
Outcome
Condonation granted to respondents; applicant's rescission and interdict dismissed with costs; respondents' counter-application for servitude registration granted with costs.
Judges
Hughes
Legal Topics
Acquisitive Prescription, Servitude Registration, Rescission of Order, Final Interdict, Condonation of Late Filing
Land and Property Civil Procedure Acquisitive Prescription Servitude Registration Rescission of Order Final Interdict Condonation of Late Filing

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Summary, issues, holding and outcome

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Parties

Vale Holdings (Pty) Ltd

Applicant

Wesley Tendaupenyu NO

Respondent

R.J.M Velosa NO

Respondent

The Trustees from time to time of the Makondo Property Trust

Respondent

Mabunda Property Holdings (Pty) Ltd

Respondent

Remaining Extent of Portion 5 of the Farm Windhoek CC

Respondent

Procedural Posture

Civil Application / Opposed Application for Rescission, Interdict, and Counter Application for Servitude Registration

Legal Issues

  1. 1 Whether condonation should be granted for the late filing of the respondents' opposing affidavit.
  2. 2 Whether the consent order granted in the urgent application should be rescinded on grounds of fraud or mistake.
  3. 3 Whether the applicant is entitled to a final interdict restraining respondents from using the gravel road.

Ratio Decidendi

Condonation for the late filing of the respondents' opposing affidavit was granted due to the bona fide explanation, importance of the matter, and prospects of success. The application for rescission of the consent order failed because the respondents did not misrepresent that the servitude was registered in their favour; they merely stated a servitude existed over the applicant's property, which was factually correct. No fraud or mistake was established. The applicant failed to satisfy the requirements for a final interdict, as no clear right, irreparable harm, or lack of alternative remedy was demonstrated. The respondents succeeded in their counter-application for registration of a...

Court Disposition

Condonation granted to respondents; applicant's rescission and interdict dismissed with costs; respondents' counter-application for servitude registration granted with costs.

Orders

  • Condonation is duly granted to the first, second and third respondents.
  • The application for rescission and an interdict by the applicant is dismissed with costs.