Viljoen and Another v Bekker (9189/2015) [2015] ZAGPPHC 161 (19 February 2015)

Viljoen and Another v Bekker (9189/2015) [2015] ZAGPPHC 161 (19 February 2015)

The court found that the applicants had a registered servitude in their favour and were in peaceful and undisturbed possession of the servitude road. The respondent unlawfully deprived the applicants of possession by constructing a trench that blocked access. The existence of an alternative route was deemed irrelevant to the exercise of possession of the servitude road and did not constitute a defence to unlawful deprivation. The applicants satisfied the requirements for a spoliation order, and the court ordered restoration of access and possession of the servitude road to the applicants.

Citation
[2015] ZAGPPHC 161
Parties
Applicant: Frederick Rudolfus Viljoen; Applicant: Helena Maria Viljoen; Respondent: Aletta Elizabeth Dorathea Bekker
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
19 February 2015
Case Number
9189/2015
Procedural Posture
Urgent Application / Final Judgment
Outcome
Application granted; spoliation order issued in favour of the applicants.
Judges
Molefe
Legal Topics
Mandament Van Spolie, Servitude Right of Way, Possession, Unlawful Deprivation, Status Quo Restoration
Land and Property Civil Procedure Mandament Van Spolie Servitude Right of Way Possession Unlawful Deprivation Status Quo Restoration

Case Brief

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Parties

Frederick Rudolfus Viljoen

Applicant

Helena Maria Viljoen

Applicant

Aletta Elizabeth Dorathea Bekker

Respondent

Procedural Posture

Urgent Application / Final Judgment

Legal Issues

  1. 1 Whether the applicants were in peaceful and undisturbed possession of the servitude road.
  2. 2 Whether the respondent unlawfully deprived the applicants of possession of the servitude road.
  3. 3 Whether the mandament van spolie is the appropriate remedy in the circumstances.

Ratio Decidendi

The court found that the applicants had a registered servitude in their favour and were in peaceful and undisturbed possession of the servitude road. The respondent unlawfully deprived the applicants of possession by constructing a trench that blocked access. The existence of an alternative route was deemed irrelevant to the exercise of possession of the servitude road and did not constitute a defence to unlawful deprivation. The applicants satisfied the requirements for a spoliation order, and the court ordered restoration of access and possession of the servitude road to the applicants.

Court Disposition

Application granted; spoliation order issued in favour of the applicants.

Orders

  • The respondent is ordered to restore the applicants' access to and possession of the registered servitude (right of way) over the respondent's property known as Portion 256 (a Portion of Portion 18) of the farm Naauwpoort 335, Registration Division JS, Mpumalanga Province, held by virtue of Deed of Transport...
  • The respondent is ordered to restore the status quo of the road (right of way) and to repair or rehabilitate the road to enable the applicants to utilize it and access their property known as Portion 254 (a Portion of Portion 18) of the farm Naauwpoort 335, Registration Division JS, Mpumalanga Province, held by...