Van Eden and Another v Grobler and Another (40021/2008) [2010] ZAGPPHC 300 (12 January 2010)

Van Eden and Another v Grobler and Another (40021/2008) [2010] ZAGPPHC 300 (12 January 2010)

The court found that the second respondent, not being an owner or party to the relevant settlement agreements, had no right to interfere with the fencing markers installed by the Trust on its side of the boundary fence. The explanations provided by the respondents were largely unsubstantiated hearsay and did not justify the removal and relocation of the markers. The court rejected the argument that the matter was trivial, noting the deliberate and significant nature of the second respondent's conduct. The applicants were entitled to restoration of the fencing markers and costs, including the costs of senior counsel. The court declined to grant a punitive costs order but warned that future...

Citation
[2010] ZAGPPHC 300
Parties
Applicant: Van Eeden, Nicolaas Johannes N.O.; Applicant: Van Eden, Anna Christina N.O.; Respondent: Grobler, Elizabeth; Respondent: Grobler, Willem
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
12 January 2010
Case Number
40021/2008
Procedural Posture
Civil Application / Judgment After Hearing
Outcome
Application granted against the second respondent; costs awarded to applicants.
Judges
Ebersohn
Legal Topics
Fencing Disputes, Ownership Rights, Specific Performance, Costs Order
Land and Property Civil Procedure Fencing Disputes Ownership Rights Specific Performance Costs Order

Case Brief

Summary, issues, holding and outcome

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Parties

Van Eeden, Nicolaas Johannes N.O.

Applicant

Van Eden, Anna Christina N.O.

Applicant

Grobler, Elizabeth

Respondent

Grobler, Willem

Respondent

Procedural Posture

Civil Application / Judgment After Hearing

Legal Issues

  1. 1 Whether the second respondent was entitled to remove and relocate the fencing markers installed by the applicants on their side of the boundary fence.
  2. 2 Whether the applicants are entitled to an order compelling the second respondent to restore the fencing markers to their original positions.
  3. 3 Whether the second respondent had any rights under the settlement agreements to interfere with the applicants' property.

Ratio Decidendi

The court found that the second respondent, not being an owner or party to the relevant settlement agreements, had no right to interfere with the fencing markers installed by the Trust on its side of the boundary fence. The explanations provided by the respondents were largely unsubstantiated hearsay and did not justify the removal and relocation of the markers. The court rejected the argument that the matter was trivial, noting the deliberate and significant nature of the second respondent's conduct. The applicants were entitled to restoration of the fencing markers and costs, including the costs of senior counsel. The court declined to grant a punitive costs order but warned that future...

Court Disposition

Application granted against the second respondent; costs awarded to applicants.

Orders

  • The second respondent is ordered to restore the fencing markers removed from the Van Eeden Trust's side of the boundary fence to their original positions by or before 2 February 2010 at his own cost.
  • The second respondent is ordered to pay the costs of the application, including the costs of senior counsel.