Abstract:
It is suggested that this judgment is noteworthy, mainly for four reasons: first and foremost, the way in which Binns-Ward J, writing for the full court (Yekiso J and Savage AJ concurring), formulated the ratio decidendi: employing proper source materials - mainly case law and old authority - and not falling into the trap of merely relying on standard textbooks (for a critical appraisal of this trend, see Scott "A growing trend in source application by our courts illustrated by a recent judgment on right of way" 2013 THRHR 239). Secondly, it illustrates the fact that if more fundamental spadework had been done in the preparation of the case of the applicant (respondent in the appeal), the matter would probably not have ended up in court, although this suggestion is in some measure belied by the fact that the court of first instance actually decided in the applicant's favour (albeit erroneously, to my mind). In the third place, one is again reminded of the fact that the mandament van spolie is a remedy that has over time proved itself to possess the uncanny ability of causing confusion, in particular where it is applied to obtain redress in situations where there is an averment of spoliation of quasi-possession. Finally, it is living proof of how rich our Roman-Dutch common law is in well-established rules to resolve the most minute problems that can arise in an everyday situation flowing from normal commercial activity such as property development involving the subdivision of land in modern times.
