Court name
High Court
Case name
Beukes and Others v Woermann
Media neutral citation
[2012] NAHC 88
Judge
Corbett AJ












NOT
REPORTABLE







CASE NO. A 281/2011


IN
THE HIGH COURT OF NAMIBIA





In
the matter between:

















BERNARD
BEUKES





URSULA
BEUKES





JAFETH
UIRAS





ELSIE
UIRAS





VINEUL
BEUKES





HANS
KAMUHANGA





MARGARETHA
KAMUHANGA





GOTTFRIED
BEUKES





ERNA
BEUKES





LIZELOTTE
BEUKES





MARIA
BEUKES





THEODORE
GAIB





ENGELBERTHA
GAIB





CHRISTINA
BEUKES















1st
APPLICANT





2nd
APPLICANT





3rd
APPLICANT





4th
APPLICANT





5th
APPLICANT





6th
APPLICANT





7th
APPLICANT





8th
APPLICANT





9th
APPLICANT





10th
APPLICANT





11th
APPLICANT





12th
APPLICANT





13th
APPLICANT





14th
APPLICANT























and





JESKO
WOERMANN RESPONDENT


























CORAM:
CORBETT, A.J





Heard
on: 11, 24, 30 NOVEMBER 2011





Delivered
on: 27 MARCH 2012


______________________________________________________________


JUDGMENT






CORBETT, A.J: .







[1] The applicants brought an urgent
application on 8 November 2011 seeking a rule
nisi
directing the respondent to ante
omnia
restore to the
applicants their right to peaceful and undisturbed possession, use
and enjoyment of a road (referred to as the “route”) over
the respondent’s property, by the removal from the road of all
obstructions, including locks, on access gates. The applicants
further sought an order compelling the respondent to register a
servitude over his property in favour of the applicants’ farm
and that, pending such registration of the servitude, the respondent
be compelled to grant servitudinal rights to the applicants as owners
of the dominant tenement. The applicants also sought an order that
the relief referred to shall operate as an interim interdict, pending
the final adjudication of the matter on the return date of the rule
nisi.







The timing of the application







[2] The application was served on the
respondent less than two court days before the date of the hearing.
On 11 November 2011 when the matter was called in Court, the
respondent had opposed the application but had not as yet had an
opportunity to file opposing papers. In the notice of motion, the
applicants failed to set out a timeframe – as is usually done –
within which pleadings in the matter were to be exchanged. The
applicants also failed to set out a service address for pleadings in
the matter. I requested the parties to address me on the timing of
the application.







[3] Ms Conradie, who appeared for the
applicants, contended that the delay in launching the application was
occasioned by,
inter alia,
the difficulty in determining the identity of the spoliator, as well
as the time it took to draft the papers and have them deposed to and
finalized. Mr Barnard, who appeared for the respondent, contended
that the manner in which the application was brought was unreasonable
given the very short timeframe which had been afforded to the
respondent, which prevented the respondent from being able to file
answering papers.







[4] The appIicants state that the act
of spoliation occurred on 22 June 2011. No mention is made of the
date as to when the applicants’ legal practitioners were
approached to render advice in the matter. However, on 23 August 2011
a letter was written on the applicants’ behalf to the
respondent alleging a spoliation and demanding that the respondent
immediately restore a right of way to the applicants, failing which
an urgent application would be filed within 24 hours. This did not
happen. Instead on 9 September 2011 the respondent wrote to the
applicants’ legal practitioners in response to a letter from
the applicants’ legal practitioners dated 5 September 2011
(which was not annexed to the founding affidavit) indicating that the
applicants would not be entitled to use a right of way over the
respondent’s farm. The applicants’ legal practitioners
responded thereto on 19 September 2011 requesting a meeting in an
attempt to resolve the issue. There was no response to this letter.
No further steps are referred to. The application was accordingly
brought approximately 5 months after the alleged spoliation, but more
importantly, more than 2 ½ months after legal action was
threatened.







[5] The Court’s power to
dispense with the forms and service provided for in the Rules of
Court in urgent applications is a discretionary one
1.
As Maritz J (as he then was) stated
2:







One
of the circumstances under which a Court, in the exercise of its
judicial discretion, may decline to condone non-compliance with the
prescribed forms and service, notwithstanding the apparent urgency of
the application, is when the applicant, who is seeking the
indulgence, has created the urgency either
mala
fides
or
though his or her culpable remissness … It is more so when the
relief being sought is essentially of a final nature and no or very
little opportunity has been afforded to the respondent to properly
present his or her defence.







In my view this dictum finds
application in the present case. The fact that the litigating parties
attempted to negotiate a settlement of their dispute, does not
ipso
facto
suspend the further
exchange of pleadings or stay the proceedings. The Court accordingly
concluded that
3:







When
an application is brought on a basis of urgency, institution of the
proceedings should take place as soon as reasonably possible after
the cause thereof has arisen. Urgent applications should always be
brought as far as practicable in terms of the Rules. The procedures
contemplated in the Rules are designed, amongst others, to bring
about procedural fairness in the ventilation and ultimate resolution
of disputes.







Whilst
Rule 6(12) allows a deviation from those prescribed procedures in
urgent applications, the requirement that the deviated procedure
should be ‘as far as practicable’ in accordance with the
Rules constitutes a continuous demand on the Court, parties and
practitioners to give effect to the objective of procedural fairness
when determining the procedure to be followed in such instances.



[6] Based on the facts and
circumstances of this matter, I am of the view that the applicants’
urgency is self-created due to the culpable remissness on the part of
the applicants and their legal representatives. It is for this reason
that I ordered that the applicants pay the costs of the hearing on 11
November 2011. However, I exercised the discretion not to strike the
matter from the roll for a lack of urgency, given that the matter
involves issues which render any such application of this nature
urgent
4.
The facts of the matter relate to an allegation that the applicants
have been spoliated in respect of their right of way over the
respondent’s farm and that by virtue thereof, the applicants
are suffering substantial harm in the form of threats to their
livestock and livelihood and a deprivation of their right to use the
road and to benefit from its use. For this reason, I postponed the
matter and was prepared to entertain the matter on a semi-urgent
basis
5.



The ambit of the relief sought







[7] After the delivery of the
answering papers, the applicants abandoned the prayers contained in
paragraphs 2.2, 2.3 and 2.5 of the notice of motion. The effect
thereof is that the applicants no longer seek an order that the
respondent take the necessary steps to register a servitude over his
property in favour of the applicants’ farm, the applicants no
longer seek interim relief concerning such servitudinal rights, and
furthermore, that no interim interdictory relief is sought pending
the final adjudication of the matter. It was contended on behalf of
the respondent that the applicants in effect seek final relief in
respect of prayer 2.1, namely the spoliation relief. In the replying
papers the applicants contend that they have made out a case for
final relief. I am in agreement that the sole issue before Court is
whether the applicants have made out a case for a mandament van
spolie in the form of a final order.







The nature of the spoliation and
the approach to the facts alleged







[8] The facts pertinent to this
application are as follows: the applicants are co-owners of an
undivided share of less than half of the farm “Kransneus”
No. 219 (“Kransneus”). The respondent is a director of a
company “Luxury Investments No. 6 (Pty) Ltd” which owns a
portion of the farm “Verdruk” No. 268 (“Verdruk”).
The farms Kransneus and Verdruk are not adjoining properties, but are
separated from one another by the farm “Verdruk No. 2”.
This farm belongs to a Mr Jaco Strydom.







[9] The applicants state that the
Beukes family has occupied Kransneus for a period in excess of 100
years. They claim that at all times the applicants only had access to
Kransneus through Verdruk. The reason why it is impossible to access
Kransneus through the farm itself is that the terrain is mountainous
to the east and no road can be built in this area of the farm to
allow a vehicular access route to the eastern side of Kransneus.
There is no alternative but to use an access route, which the
applicants describe as “the route” by reference to
a map annexed to the founding papers. The applicants further claim
that for at least 62 years they have used the route in a free and
undisturbed manner. They further state that they had been in
undisturbed and peaceful possession of “the right of way
– a reference to the route. The respondent attempted to
purchase Kransneus during December 2010, but the applicants refused
to sell the farm. Shortly thereafter on 22 June 2011 the applicants
allege the respondent “blocked the road to our farm”
by piling mounds of sand across it with a bulldozer. This act
constituted the spoliation relied upon by the applicants.







[10] The respondent denies that he has
spoliated the applicants’ use and enjoyment of the route.
Several material disputes of fact arise in this context. This raises
the issue as to the test to be applied in determining the disputed
facts. The mandament van spolie is aimed at every unlawful and
involuntary loss of possession by any possessor, and its object is no
more than the restoration of the
status
quo ante
as a preliminary
to any enquiry or investigation of the merits of the respective
claims of the parties to the thing in question
6.
As has been stated by Maritz JA
7:







Even
though the mandament is therefore not intended to bring about the
ultimate determination of the competing proprietary or possessory
claims of the litigants to the things in contention, it nevertheless
constitutes a final determination of the litigants’ ‘immediate
right’ to possess them for the time being. In this regard,
Greenberg JA noted in
Nienaber
v Stuckey
that







(a)lthough a
spoliation order does not decide what, apart from possession, the
rights of the parties to the property spoliated were before the act
of spoliation and merely orders that the status quo be restored, it
is to that extent a final order.’







Consequently,
it falls to be noted for purposes of the approach to be followed in
this appeal that a litigant who is seeking a spoliation order bears
the burden to prove the facts necessary for the success of the
application on a balance of probabilities.







[11] In approaching the facts of this
matter, it is well established that where such facts are disputed by
the respondent the Court must approach the matter on the basis of the
facts as stated by the respondent together with the admitted facts in
the applicants’ affidavit
8.



















Possession of the route







[12] The applicants must establish one
of the constituent elements of the mandament, that is, that on the
evidence before Court they were in possession of the route when
spoliation occurred
9.
The nature of the possession required, has been stated as follows
10:







“…not
just any measure of possession – however technical, remote,
tenuous, or brief will suffice: the court must be satisfied, regard
being had to the nature of the thing dispossessed, that the despoiled
possession of the thing was sufficiently stable and durable to
constitute ‘peaceful and undisturbed possession’.







[13] In the context of possession of a
road or right of way, the question arises as to whether the
protection of the mandament van spolie extends to incorporeals, or
quasi-possession. In
Nienaber
v Stuckey
11
the Court held that the possession of
incorporeal rights is protected against spoliation. It has further
been stated that
12
the mandament van spolie is available
for the restoration of lost possession in the form of
quasi-possession which, in that case, consisted of the actual use of
a right of servitude. The Court distinguished between the
status
quo
that the spoliatus
desired to restore by means of the mandament van spolie which was the
factual exercise of the servitude, and the servitude itself. In
Kock
v Walter
13
Langa AJA stated 14







“…the
true purpose of the mandament van spolie is not the protection and
vindication of rights in general, but rather the restoration of the
status quo ante where the spoliatus has been unlawfully deprived of a
thing, a movable or immovable, that he had been in possession or
quasi-possession of. …As a concept or a form of relief, it is
not concerned with the protection of rights ‘in the widest
sense’ but with the restoration of factual possession of a
movable or an immovable. This extends to incorporeals such as the use
of a servitudal right.







[14] The question then arises as to
whether the applicants as a fact enjoyed peaceful and undisturbed use
and enjoyment of the route. In the context of the use of a road or
the route the applicants would have to establish that they had been
deprived of the use of a portion of the route that they enjoyed use
of freely “
without
having to ask anybody for permission
15.







[15] In the founding papers, in
alleging the spoliation which occurred on 22 June 2011, the
applicants refer to an act of spoliation in respect of “
the
road
and not “the
route
, the latter
term being the precise description of the road alleged to have been
spoliated. The precise term “
the
route
also gives
meaning to the relief sought in prayer 2.1 of the notice of motion.
This lack of specificity in the identification of the road allegedly
spoliated undermines the factual substratum upon which the applicants
seek to rely. The road needs to be identified in specific terms in
order to ensure clarity as to the subject-matter of the
quasi-possession to ensure that, should a case be made out for the
relief sought, that the Court can give effective relief.







[16] Even if the Court is to assume
that “
the road
is a reference to “the
route
doubt still
exists as to the precise location of the route. In response to a
challenge by the respondent as to the accuracy of the route depicted
in the applicants’ founding papers, the applicants tellingly
concede that the route depicted may not be accurate. No explanation
is advanced as to why, given the confusion created by the applicants’
map, this was not clarified by way of annexing a new map with a
revised and accurate route depicted thereon. It is not sufficient for
the applicants to allege that the respondent was well aware of the
route. As I have indicated, the Court needs certainty on the precise
route in order to give effective relief.



[17] On the other hand, the respondent
describes the route claimed by the applicants by reference to
specific points on a map annexed to its papers. The route is also
described in detail in the respondent’s affidavit, starting at
point A in the west and ending at point H in the east. It passes
through points B, C, D, E, F and G. Given the admitted inaccuracy of
the applicants’ map, and applying the principle applicable to
disputes of fact, I accept that the relevant route is the one
depicted on the respondent’s map and described in his opposing
affidavit. This route follows in part a proclaimed road. On the
western side where it crosses into the Farm Verdruk No. 1, owned by
Mr Jaco Strydom, there are locked gates at points C and D, which have
been in place for 4 years. During this time the applicants have not
had access along this route. This is expressly not disputed by the
applicants, which in my view fundamentally undermines the applicants’
case that they have had unimpeded access along this route for the
past 62 years. Access to the route is thus controlled by the
possessors of the keys. The fact that keys to the gates are kept by
Mr Jaco Strydom and respondent’s employee, Mr Christoffel
Esterhuizen, is a manifestation of their possession of the route to
the exclusion of the applicants
16.
This possession precedes the act of alleged spoliation.







[18] The respondent makes reference to
the fact that due to losses of approximately N$250,000.00 in respect
of theft on his farm, he locked the farm gate on the southern border
of Verdruk at point I on the map, which adjoins the communal area to
the south. The purpose was to control access to the farm and to
prevent further theft. It was only when the gate locks at point I on
the respondent’s map were broken four times that he blocked the
road from point I to point G on Verdruk by means of earth mounds.
This occurred in early 2010. As already indicated, this stretch of
road traverses Verdruk south of the route and only intersects with
the route at point G.







[19] Shortly thereafter the first
applicant, the sixth applicant and a certain Manuel Pieters and
Victoria Kondjore requested the respondent to give them access over
his farm along the route indicated by points I to G on the map. The
respondent refused to do so based upon the thefts that had occurred
when there had been uncontrolled access to Verdruk from the southern
boundary of the farm. In my view, the fact that such persons
requested the respondent to consent to such access meant that they
acknowledged that at that stage they had no access along the routes I
to G. The implication is thus either that the applicants never had
access along this route, or alternatively, that should they indeed
have had access along this route as of the beginning of 2010, this
access was terminated. Should the latter interpretation be the
correct one, the spoliation would have occurred at the beginning of
2010. However, the spoliation referred to is alleged to have taken
place in June 2011 and I am accordingly inclined to the former view.







[20] The respondent states further
that had the applicants asked permission to use the route over
Verdruk from point E to point G he would most probably have
considered this. However, the applicants never made any such request
but wanted access at point I and permission to traverse the route to
point G over Verdruk.















Conclusion







[21] On the basis of the above, I find
that the applicants have failed to establish that as of 22 June 2011
they were in peaceful and undisturbed possession of the route
depicted on their map. The applicants have also failed to establish
that on such date they were in peaceful and undisturbed possession of
the route depicted as points A to H on respondent’s map.







[22] Having failed to establish
possession, the applicants have not met the first requirement of the
mandament van spolie. It is accordingly not necessary to consider the
further arguments raised by the respondent in relation to a
consideration of the underlying rights due to the fact that such
rights are



traversed by the applicants in these
papers.







[23] In the circumstances, I make the
following order:








  1. The application is dismissed with
    costs, such costs to include the costs of one instructing and one
    instructed counsel.









  1. The costs referred to in paragraph 1,
    shall also include the costs of the hearings on 11 and 24 November
    2011.




















__________



CORBETT, A.J























































































































ON
BEHALF OF THE APPLICANTS
:





Ms
L. Conradie





Instructed
by Legal Assistance Centre








ON
BEHALF OF THE RESPONDENT
:





Adv.
P Barnard





Instructed
by Etzold Duvenhage









1Bergmann
v Commercial Bank of Namibia Ltd, 2001 NR 48 (HC), 49 G - H




2at
49 H – 50 A




3at
50, H - I




4Mangala
v Mangala, 1967 (2) SA 415 (ECD), at 416 E




5Bergmann
–case, supra, at 51 C - D




6Ness
& Another v Greef, 1985(4) SA 641 (C), at 647 B - C




7Kuiiri
v Kandjoze, 2009 (2) NR 447 (SC), para [3]




8Stellenbosch
Farmers Winery Ltd v Stellenvale Winery (Pty) Ltd, 1957 (4) SA 234
(C), 235 E – G


Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd, 1984 (3) SA 623 (A)




9Yeko
v Qana, 1973 (4) SA 735 (A), 739 D – H, quoted with approval
in the Kuiiri –matter, supra, at 462, para [4]; Ruch v
Van As, 1996 NR 345 (HC)




10Kuiiri
–case, supra, at 462 – 463, para [4]




111946
AD 1049, at 1056




12Bon
Quelle (Edms.) Bpk v Munisipaliteit van Otavi, 1989 (1) SA 508 (A)




132011
(1) NR 10 (SC),




14at
13 – 14, para [5]




15Kock
–case, supra, at 15, para [6]




16Wightman
t/a JW Construction v Headfour (Pty) Ltd, 2007 (2) SA 128 (C)at 134
G – 135 A