He was not successful! Because the court said you cannot really possess water And also because he had no right to the water. The court in this is now looking at the merits! You are not allowed to look at the merits. The right to water is irrelevant, the possession of water was the more important issue. But unfortunately this is where the case stops. Plaatjie v Olivier NO - Use of water not incidental to the occupation of the dwellings in question. Taps were communal and situated in the street. Question incidental installations include supply of electronic communication services for telephone and internet= unclear.
Du Randt v Du Randt - spoliation of telephone services found to have occurred on the basis that the applicant was in occupation of the premises and incontrol of the use of the service through occupation. Telkom v Xsinet 2003 (SCA) Telecommunication – not “incident of possession/control” Facts: Telkom supplied Xsinet with a telephone system and bandwidth system in order for Xsinet to conduct its business . Disconnection by Telkom after Xsinet allegegly refused to pay amounts owing to Telkom . Xsinet apllied for MVS successfully (in 1 st case) Appeal Court: Telkom appeals on the basis that no quasi possession ever existed in favour of Xsinet . Contract basis for delivery of a service . No real possession, Telkom remained in effective control of telephone and bandwidth system (Xsinet merely used the service) . In casu: personal right ito contract (thus, personal remedies only) Decisive: Water is incidental to a property (ZULU case) . Bandwidth is not. Decision: The disconnection does not amount to spoliation . The control element always rested with Telkom . Precedent: Spoliation may no longer be available to counter termination of telephone services. Defences Dispute Facta Probanda - Refer back to elements required for a successful MVS application. One could argue that possession was not peaceful and undisturbed. Restoration impossible - Remembering the purpose of the MVS (restoration of possession).The (re)possession of the thing must be possible (i.e. the thing must still exist) . “status quo ante”: the position prior to the spoliation must be restored, position when the person was in possession before unlawful spoliation. If re-assembly and reparations are possible and still within the limits of reasonable repairs they should be included in the restoration order. Passage of Time - the purpose of the MVS is to immediately restore possession as a result of a spoliation. The longer the passage of time that passes the more scope there is to contend that the other party tacitly consented to the change in possession (thus, making the respondents action lawful). In practice no fixed time period, the factual scenario informs what to be seen as reasonable or not.
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- Fall '15
- Possession, Telkom