Botha and Another v Die Hoerskool Menlopark and Others (22089/2021) [2025] ZAGPPHC 194 (22 February 2025)

Botha and Another v Die Hoerskool Menlopark and Others (22089/2021) [2025] ZAGPPHC 194 (22 February 2025)

The Court found that the School's unilateral restriction of access to the servitude tenement constituted partial spoliation, as the applicants were deprived of convenient and unfettered access without consultation or due process. The applicants established a clear right under the registered servitude to extract a specified quantity of water from the borehole and to access the servitude area. The School's safety concerns and statutory obligations justified reasonable access control measures but did not warrant deprivation of the applicants' rights. The municipal bylaws relied upon by the School did not retrospectively affect the applicants' servitude rights, and no unlawful conduct was...

Citation
[2025] ZAGPPHC 194
Parties
Applicant: Bernard Theunis Botha; Applicant: Leonore Botha; Respondent: Die Hoërskool Menlopark; Respondent: The Principal: Die Hoërskool Menlopark; Respondent: The Governing Body: Die Hoërskool Menlopark; Respondent: Member of the Executive Council: Gauteng Department of Basic Education; Respondent: City of Tshwane Metropolitan Municipality; Respondent: The Government of the Republic of South Africa; Respondent: The Provincial Government: Gauteng Province
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
22 February 2025
Case Number
22089/2021
Procedural Posture
Civil Application / Opposed Application for Spoliation and Interdict; Counter Application for Cancellation of Servitude
Outcome
Application for spoliation and interdict granted in part; counter-application for cancellation of servitude dismissed; access restored subject to reasonable conditions; each party to bear its own costs.
Judges
LG Kilmartin
Legal Topics
Servitude Rights, Spoliation, Final Interdict, School Safety Regulations, Municipal Water Bylaws, Interpretation of Deeds
Land and Property Civil Procedure Administrative Law Servitude Rights Spoliation Final Interdict School Safety Regulations Municipal Water Bylaws +1 more

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Parties

Bernard Theunis Botha

Applicant

Leonore Botha

Applicant

Die Hoërskool Menlopark

Respondent

The Principal: Die Hoërskool Menlopark

Respondent

The Governing Body: Die Hoërskool Menlopark

Respondent

Member of the Executive Council: Gauteng Department of Basic Education

Respondent

City of Tshwane Metropolitan Municipality

Respondent

The Government of the Republic of South Africa

Respondent

The Provincial Government: Gauteng Province

Respondent

Procedural Posture

Civil Application / Opposed Application for Spoliation and Interdict; Counter Application for Cancellation of Servitude

Legal Issues

  1. 1 Whether the School's conduct amounted to spoliation or partial spoliation of the applicants' servitude rights.
  2. 2 Whether the applicants are entitled to a final interdict preventing the School from infringing their servitude rights, including drilling or utilising new boreholes that may affect the yield.
  3. 3 Whether the School is entitled to cancellation of the servitude under section 133 of the National Water Act.

Ratio Decidendi

The Court found that the School's unilateral restriction of access to the servitude tenement constituted partial spoliation, as the applicants were deprived of convenient and unfettered access without consultation or due process. The applicants established a clear right under the registered servitude to extract a specified quantity of water from the borehole and to access the servitude area. The School's safety concerns and statutory obligations justified reasonable access control measures but did not warrant deprivation of the applicants' rights. The municipal bylaws relied upon by the School did not retrospectively affect the applicants' servitude rights, and no unlawful conduct was...

Court Disposition

Application for spoliation and interdict granted in part; counter-application for cancellation of servitude dismissed; access restored subject to reasonable conditions; each party to bear its own costs.

Orders

  • The School must immediately restore the applicants' access to their borehole servitude over Portion 43, subject to 24 hours' prior notification for routine maintenance.
  • For emergency access, three contact persons must be nominated by the School, with at least one onsite and able to provide access within three hours.