Van Rhyn NO and Otherrs v Fleurbaix Farm (Pty) Ltd (A 488/2012) [2013] ZAWCHC 106; 2013 (5) SA 521 (WCC); [2013] 4 All SA 236 (WCC) (8 August 2013)

Van Rhyn NO and Otherrs v Fleurbaix Farm (Pty) Ltd (A 488/2012) [2013] ZAWCHC 106; 2013 (5) SA 521 (WCC); [2013] 4 All SA 236 (WCC) (8 August 2013)

The respondent failed to prove dispossession of a cognisable right of way. The only right arguably established was a via simpliciter, not a defined route. The appellants, as servient tenement holders, lawfully exercised their prerogative to alter the route, providing an adequate and non-prejudicial alternative. The respondent retained uninterrupted access, and the utility of its right remained substantively unaffected. The application for spoliatory relief was therefore not justified. The respondent's attempt to introduce new evidence on appeal was rejected, as the circumstances did not warrant such an exceptional course. The appeal was upheld, and the order of the court a quo was set...

Citation
[2013] ZAWCHC 106
Parties
Appellant: Werner Rudolph Van Rhyn N.O.; Appellant: Helena Catharina Van Rhyn N.O.; Appellant: Ibrahim Mia N.O.; Respondent: Fleurbaix Farm (Pty) Limited
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
8 August 2013
Case Number
A 488/2012
Procedural Posture
Civil Appeal / Appeal From First Instance Judgment; Application for Leave to Adduce Further Evidence on Appeal
Outcome
Appeal upheld; respondent's application for spoliatory relief dismissed with costs.
Judges
A.G. Binns-Ward, N.J. Yekiso, K.M. Savage
Legal Topics
Mandament Van Spolie, Right of Way, Quasi Possession, Servitude, Via Simpliciter, Remedy for Unlawful Dispossession
Land and Property Civil Procedure Mandament Van Spolie Right of Way Quasi Possession Servitude Via Simpliciter Remedy for Unlawful Dispossession

Case Brief

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Parties

Werner Rudolph Van Rhyn N.O.

Appellant

Helena Catharina Van Rhyn N.O.

Appellant

Ibrahim Mia N.O.

Appellant

Fleurbaix Farm (Pty) Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From First Instance Judgment; Application for Leave to Adduce Further Evidence on Appeal

Legal Issues

  1. 1 Whether the closure of an existing route and provision of an alternative route by the servient tenement holder constitutes unlawful dispossession of the dominant tenement holder's right of way.
  2. 2 Whether the respondent established quasi-possession of a cognisable right entitling it to access over the appellants' property along the indicated route.
  3. 3 Whether the alternative route provided was adequate and non-prejudicial to the respondent's exercise of its right of way.

Ratio Decidendi

The respondent failed to prove dispossession of a cognisable right of way. The only right arguably established was a via simpliciter, not a defined route. The appellants, as servient tenement holders, lawfully exercised their prerogative to alter the route, providing an adequate and non-prejudicial alternative. The respondent retained uninterrupted access, and the utility of its right remained substantively unaffected. The application for spoliatory relief was therefore not justified. The respondent's attempt to introduce new evidence on appeal was rejected, as the circumstances did not warrant such an exceptional course. The appeal was upheld, and the order of the court a quo was set...

Court Disposition

Appeal upheld; respondent's application for spoliatory relief dismissed with costs.

Orders

  • The application by the respondent to introduce additional evidence on appeal is dismissed with costs.
  • The appeal is upheld with costs, including the costs of two counsel.