Boxerdale Holdings (Pty) Ltd and Others v Wulffers (3543/2019) [2020] ZAECPEHC 36 (29 September 2020)

Boxerdale Holdings (Pty) Ltd and Others v Wulffers (3543/2019) [2020] ZAECPEHC 36 (29 September 2020)

The court found that the First and Third Applicants failed to establish a clear legal right to traverse the respondent's property, as the registered servitude required agreement on the route, which was never reached. Reliance on an informal agreement was rejected, as the registered servitude superseded it. The...

Source-derived case information.

Citation
[2020] ZAECPEHC 36
Parties
Applicant: Boxerdale Holdings (Pty) Ltd; Applicant: Henry Anthony Klitsie; Applicant: Anton Heinrich Genade; Respondent: Martina Christina Catherina Wulffers
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
29 September 2020
Case Number
3543/2019
Procedural Posture
Urgent Application / Final Determination of Application for Interdict and Declaratory Relief
Outcome
The rule nisi is discharged. The Second Applicant is granted declaratory relief for registration of a servitude of right of way over the respondent's property along the route marked X-Y. Each party is to pay their own costs.
Judges
V Naidu
Legal Topics
Praedial Servitude, Right of Way, Landlocked Property, Interdictory Relief, Servitude Registration
Land and Property Praedial Servitude Right of Way Landlocked Property Interdictory Relief Servitude Registration

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Parties

Boxerdale Holdings (Pty) Ltd

Applicant

Henry Anthony Klitsie

Applicant

Anton Heinrich Genade

Applicant

Martina Christina Catherina Wulffers

Respondent

Procedural Posture

Urgent Application / Final Determination of Application for Interdict and Declaratory Relief

Legal Issues

  1. 1 Whether the applicants have established a clear right to a servitude of right of way over the respondent's property.
  2. 2 Whether the requirements for a final interdict have been satisfied.
  3. 3 Whether the respondent's erection of fences and boom gates unlawfully interferes with the applicants' rights.

Ratio Decidendi

The court found that the First and Third Applicants failed to establish a clear legal right to traverse the respondent's property, as the registered servitude required agreement on the route, which was never reached. Reliance on an informal agreement was rejected, as the registered servitude superseded it. The Second Applicant, however, was found to have a clear right of way by virtue of the subdivision, which rendered his property landlocked, invoking the van Leeuwen principle. The respondent's installations did not deprive the Second Applicant of access, as a lock and key system was in place, and no actual harm or reasonable apprehension of harm was established. The requirements for a...

Court Disposition

The rule nisi is discharged. The Second Applicant is granted declaratory relief for registration of a servitude of right of way over the respondent's property along the route marked X-Y. Each party is to pay their own costs.

Orders

  • The rule nisi issued on 17 December 2019 is discharged.
  • A servitude of right of way, not less than five meters wide, is to be registered over Portion 233 of the Farm Goed Geloof in favour of the remainder of Portion 133 of the Farm Goed Geloof 745, as depicted on sketch map NOM10 and indicated as X-Y.