Van Wyk v Daberas Adventures CC (1431/2016) [2021] ZANCHC 62 (19 November 2021)

Van Wyk v Daberas Adventures CC (1431/2016) [2021] ZANCHC 62 (19 November 2021)

The court found that the Fencing Act does not require mandatory exhaustion of alternative remedies before approaching the High Court. Section 16 is permissive, not mandatory, and does not oust the court's jurisdiction. The respondent's reliance on the Maledu case was misplaced, as the statutory scheme under the Fencing Act differs from the MPRDA. Disputes of fact raised by the respondent were not material to the real issue, which was whether the fence constituted a give and take line under the Fencing Act. The court had previously addressed these aspects and found no merit in the respondent's grounds. The admission of affidavits was within the court's discretion, and the respondent...

Citation
[2021] ZANCHC 62
Parties
Applicant: Mariana Van Wyk; Respondent: Daberas Adventures CC
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
19 November 2021
Case Number
1431/2016
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment and Orders for Ejectment and Related Relief.
Outcome
Application for leave to appeal dismissed with costs.
Judges
Williams
Legal Topics
Ejectment, Fencing Act, Alternative Remedy, Jurisdiction, Disputes of Fact
Land and Property Civil Procedure Ejectment Fencing Act Alternative Remedy Jurisdiction Disputes of Fact

Case Brief

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Parties

Mariana Van Wyk

Applicant

Daberas Adventures CC

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Judgment and Orders for Ejectment and Related Relief.

Legal Issues

  1. 1 Whether the applicant approached the court prematurely without exhausting alternative remedies under the Fencing Act.
  2. 2 Whether the High Court had jurisdiction to adjudicate the matter given the provisions of the Fencing Act.
  3. 3 Whether disputes of fact required referral to oral evidence.

Ratio Decidendi

The court found that the Fencing Act does not require mandatory exhaustion of alternative remedies before approaching the High Court. Section 16 is permissive, not mandatory, and does not oust the court's jurisdiction. The respondent's reliance on the Maledu case was misplaced, as the statutory scheme under the Fencing Act differs from the MPRDA. Disputes of fact raised by the respondent were not material to the real issue, which was whether the fence constituted a give and take line under the Fencing Act. The court had previously addressed these aspects and found no merit in the respondent's grounds. The admission of affidavits was within the court's discretion, and the respondent...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed with costs.