Visser v Muller NO and Others (18167/2007) [2008] ZAWCHC 115 (20 May 2008)

Visser v Muller NO and Others (18167/2007) [2008] ZAWCHC 115 (20 May 2008)

The court held that the applicant is entitled to restoration of undisturbed possession of the area described as area of encroachment A, as the respondents' construction of the garage wall constituted an unlawful encroachment. The applicant's prior objection does not preclude him from seeking removal of the encroachment in future proceedings, should it be found to exist. The respondents are ordered to restore possession and pay the costs of the application.

Citation
[2008] ZAWCHC 115
Parties
Applicant: Johannes Andre Visser; Respondent: Abraham Daniel Muller NO; Respondent: Hannelie Muller NO; Respondent: Johan Muller NO
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
20 May 2008
Case Number
18167/2007
Procedural Posture
Urgent Application / Final Order
Outcome
Application granted. Possession restored to applicant. Respondents to pay costs.
Judges
Traverso ARP
Legal Topics
Encroachment, Possessory Remedy, Restoration of Possession
Land and Property Encroachment Possessory Remedy Restoration of Possession

Case Brief

Summary, issues, holding and outcome

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Parties

Johannes Andre Visser

Applicant

Abraham Daniel Muller NO

Respondent

Hannelie Muller NO

Respondent

Johan Muller NO

Respondent

Procedural Posture

Urgent Application / Final Order

Legal Issues

  1. 1 Whether the applicant is entitled to restoration of undisturbed possession of the area encroached upon by the respondents.
  2. 2 Whether the applicant's objection to the construction of the garage wall affects his right to seek removal of the encroachment in future proceedings.
  3. 3 Whether the respondents are liable for the costs of the application.

Ratio Decidendi

The court held that the applicant is entitled to restoration of undisturbed possession of the area described as area of encroachment A, as the respondents' construction of the garage wall constituted an unlawful encroachment. The applicant's prior objection does not preclude him from seeking removal of the encroachment in future proceedings, should it be found to exist. The respondents are ordered to restore possession and pay the costs of the application.

Court Disposition

Application granted. Possession restored to applicant. Respondents to pay costs.

Orders

  • The respondents are ordered to immediately restore the applicant's undisturbed possession of the area described as area of encroachment A (the yellow coloured portion on sketch plan AVI attached to the founding affidavit of the first applicant).
  • The respondents are ordered to pay the costs of the proceedings.