Setlogelo v Setlogelo

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Lord De Villiers CJ, Innes JA and CG Maasdorp AJA
• Judgment Date: 17 March 1914
• Citation: 1914 AD 221
• Hearing Date: 16 March 1914

Lord De Villiers, C.J.:

The judgment appealed from was given by a single judge of the Orange Free State Provincial Division, not sitting in chambers but exercising during vacation the full jurisdiction vested in that division. If the sitting had been in chambers there would have been an appeal to the Provincial Division under section 12 of Ordinance No. 4, 1904, but there appears to be no provision for such an appeal from a judgment such as the present. It follows that although the case came before the court by way of motion, the appeal may now be brought before the court without the formal consent of the respondent.

The application was for a confirmation of a rule nisi granted by the Chief Justice calling upon the respondents to show cause

Lord De Villiers, C.J.

why they should not be restrained from trespassing and ploughing a portion of a farm occupied and possessed by the petitioner within certain bounds. The petition stated that within the last preceding 30 days the respondent had ploughed ground on the petitioner's defined portion of the farm, and continued to do so notwithstanding the petitioner's protest. The petition further stated that the ploughing season was fast approaching, and that the petitioner would suffer irreparable injury if the respondent was not forthwith interdicted from trespassing or ploughing on the said portion of the farm and from further interfering with the petitioner's free and undisturbed use of such portion. These statements were verified by affidavit and were not contradicted by the respondents. Counsel for one of the respondents, however, opposed the making of the rule absolute on the ground that the petitioner was a native prohibited by the provisions of section 6 of chapter 34 of the Law Book from holding or obtaining transfer of immovable property. The learned judge held that as the petitioner came within the provisions of that section he could not either buy or lease immovable property, and could have no such possession or ownership as would give him that clear right which he must show before he could obtain the remedy of an interdict.

I am of opinion that upon the uncontradicted facts before the Court, the petitioner has a clear right to an interdict. He does not by his petition claim that he is the registered owner or lessee of the land, but he states that he is in bona fide occupation and possession of the land. As such occupier he is entitled to retain undisturbed...