Baartman v Stubbs and Others (15523/2013) [2015] ZAWCHC 29 (13 March 2015)

Baartman v Stubbs and Others (15523/2013) [2015] ZAWCHC 29 (13 March 2015)

The court found that the servitude registered against Erf 983 Hout Bay was intended to preserve the sea view from the applicant's property as it existed at the time of the servitude's creation. The language of the servitude, interpreted in context and in light of the parties' intentions, covers both trees already planted and those to be planted. The wild olive tree, which was present at the time of the servitude and subsequently grew to obstruct the applicant's view, falls within the prohibition. The fourth respondent, as current owner, is obliged to trim or remove the tree to restore the view. The first and second respondents, having sold the property and lost any direct and substantial...

Citation
[2015] ZAWCHC 29
Parties
Applicant: Elizabeth Dorothy Baartman; Respondent: Sarah Jane Stubbs; Respondent: Gregory Walter Moncrieff Largier; Respondent: The Registrar of Deeds; Respondent: Jacqueli Wylanda Rubenstein
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
13 March 2015
Case Number
15523/2013
Procedural Posture
Civil Application / Judgment After Joinder and Opposition; Main Application for Declaratory and Mandatory Relief
Outcome
Application granted against the fourth respondent; costs awarded against the first and second respondents.
Judges
Riley AJ
Legal Topics
Servitude of View, Title Deed Restriction, Interpretation of Servitude, Joinder of Parties, Locus Standi, Costs Order
Land and Property Civil Procedure Servitude of View Title Deed Restriction Interpretation of Servitude Joinder of Parties Locus Standi Costs Order

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Parties

Elizabeth Dorothy Baartman

Applicant

Sarah Jane Stubbs

Respondent

Gregory Walter Moncrieff Largier

Respondent

The Registrar of Deeds

Respondent

Jacqueli Wylanda Rubenstein

Respondent

Procedural Posture

Civil Application / Judgment After Joinder and Opposition; Main Application for Declaratory and Mandatory Relief

Legal Issues

  1. 1 Does the title deed condition prohibiting obstruction of sea views by trees or structures on Erf 983 Hout Bay apply to trees already planted at the time of the servitude's creation?
  2. 2 Is the fourth respondent, as current owner, obliged to trim or remove the wild olive tree obstructing the applicant's sea view?
  3. 3 Do the first and second respondents have locus standi to oppose relief after selling the property?

Ratio Decidendi

The court found that the servitude registered against Erf 983 Hout Bay was intended to preserve the sea view from the applicant's property as it existed at the time of the servitude's creation. The language of the servitude, interpreted in context and in light of the parties' intentions, covers both trees already planted and those to be planted. The wild olive tree, which was present at the time of the servitude and subsequently grew to obstruct the applicant's view, falls within the prohibition. The fourth respondent, as current owner, is obliged to trim or remove the tree to restore the view. The first and second respondents, having sold the property and lost any direct and substantial...

Court Disposition

Application granted against the fourth respondent; costs awarded against the first and second respondents.

Orders

  • It is declared that the title deed condition E, contained in the title deed (T111355/2004) of Erf 983 Hout Bay, applies to the wild olive tree(s) already planted at the time of the imposition of the condition.
  • The fourth respondent is ordered to trim the wild olive tree(s) on Erf 983 Hout Bay so as not to obstruct or partially obstruct the applicant's sea views from the existing structure.