Cillie v Geldenhuys (306/07) [2008] ZASCA 54; [2008] 3 All SA 507 (SCA) ; 2009 (2) SA 325 (SCA) (22 May 2008)

Cillie v Geldenhuys (306/07) [2008] ZASCA 54; [2008] 3 All SA 507 (SCA) ; 2009 (2) SA 325 (SCA) (22 May 2008)

The court held that the respondent acquired positive servitude rights over all water from the spring on the appellant's property and the right to lead water via a pipeline, by prescription, through open and uninterrupted exercise for over thirty years. The servitude is positive, not negative, as it entitles the respondent to actively take water from the spring and lead it to his property. The doctrine of notice does not apply to real rights acquired by prescription; thus, the appellant is bound by the servitude regardless of his knowledge at purchase. However, the servitude does not extend to underground water before it reaches the spring. The appellant retains the right to extract...

Citation
[2008] ZASCA 54
Parties
Appellant: Pieter Rossouw Cillie; Respondent: Mattheus Lourens Geldenhuys
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
22 May 2008
Case Number
306/07
Procedural Posture
Civil Appeal / Appeal From the Cape High Court
Outcome
Appeal succeeds in part; the servitude is confirmed but the interdict and cost order are set aside.
Judges
Harms, Streicher, Cameron, Ponnan, Cachalia
Legal Topics
Acquisitive Prescription, Praedial Servitude, Positive Vs Negative Servitude, Scope of Servitude, Doctrine of Notice, Water Rights
Land and Property Civil Procedure Acquisitive Prescription Praedial Servitude Positive Vs Negative Servitude Scope of Servitude Doctrine of Notice Water Rights

Case Brief

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Parties

Pieter Rossouw Cillie

Appellant

Mattheus Lourens Geldenhuys

Respondent

Procedural Posture

Civil Appeal / Appeal From the Cape High Court

Legal Issues

  1. 1 Whether the respondent acquired servitude rights over the appellant's property by acquisitive prescription.
  2. 2 Whether the servitude is positive or negative and the implications for prescription.
  3. 3 Whether the doctrine of notice applies to unregistered servitudes acquired by prescription.

Ratio Decidendi

The court held that the respondent acquired positive servitude rights over all water from the spring on the appellant's property and the right to lead water via a pipeline, by prescription, through open and uninterrupted exercise for over thirty years. The servitude is positive, not negative, as it entitles the respondent to actively take water from the spring and lead it to his property. The doctrine of notice does not apply to real rights acquired by prescription; thus, the appellant is bound by the servitude regardless of his knowledge at purchase. However, the servitude does not extend to underground water before it reaches the spring. The appellant retains the right to extract...

Court Disposition

Appeal succeeds in part; the servitude is confirmed but the interdict and cost order are set aside.

Orders

  • The appeal succeeds with costs, including the costs of two counsel.
  • The order of the court below is amended by deleting paragraphs 3 and 4 and inserting a new paragraph 3: 'The applicant must pay the costs of the application, including the costs of two counsel.'