Da Ribeira N.o and Others v Woudberg and Others (15203/2020) [2022] ZAWCHC 193; 2023 (1) SA 530 (WCC) (23 September 2022)

Da Ribeira N.o and Others v Woudberg and Others (15203/2020) [2022] ZAWCHC 193; 2023 (1) SA 530 (WCC) (23 September 2022)

The court held that the first ground of exception, relating to the validity and enforceability of the addendum to the deed of sale, was upheld because the plaintiffs failed to plead sufficient facts to support their legal conclusions. Mere allegations that piping would destroy the furrow or alter maintenance obligations were insufficient without factual detail. The second ground of exception, concerning the implied right to pipe the sloot under the servitude agreement, was dismissed. The court found that whether such an implied right exists, and whether it is reasonably necessary for the exercise of the servitude, is a matter for the trial court to determine after hearing evidence. The...

Citation
[2022] ZAWCHC 193
Parties
Plaintiff: Kim Pereira Serrao Da Ribeira N.O.; Plaintiff: Rail Pereira Serrao Da Ribiera N.O.; Plaintiff: Samantha Pereira Serrao Da Ribiera N.O.; Plaintiff: Christina Elizabeth Le Roux; Defendant: Willem Petrus Woudberg; Defendant: Werner Janse Van Rensburg N.O.; Defendant: The Trustees for the Time Being of the ESLO Trust; Defendant: Being of the Sonador Trust; Defendant: Executrix Estate Late Petronella Janse Van Rensburg; Defendant: Cosmic Gold Trading 575 CC; Defendant: Gerrit Le Roux
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
23 September 2022
Case Number
15203/2020
Procedural Posture
Civil Procedure / Exception and Amendment Application
Outcome
Exception partially upheld; amendment application partially granted; costs awarded against plaintiffs.
Judges
A De Wet
Legal Topics
Water Servitude, Servitude Interpretation, Exception Procedure, Contractual Amendment, Heritage Resources Permit
Land and Property Civil Procedure Water Servitude Servitude Interpretation Exception Procedure Contractual Amendment Heritage Resources Permit

Case Brief

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Parties

Kim Pereira Serrao Da Ribeira N.O.

Plaintiff

Rail Pereira Serrao Da Ribiera N.O.

Plaintiff

Samantha Pereira Serrao Da Ribiera N.O.

Plaintiff

Christina Elizabeth Le Roux

Plaintiff

Willem Petrus Woudberg

Defendant

Werner Janse Van Rensburg N.O.

Defendant

The Trustees for the Time Being of the ESLO Trust

Defendant

Being of the Sonador Trust

Defendant

Executrix Estate Late Petronella Janse Van Rensburg

Defendant

Cosmic Gold Trading 575 CC

Defendant

Gerrit Le Roux

Defendant

Procedural Posture

Civil Procedure / Exception and Amendment Application

Legal Issues

  1. 1 Whether the first defendant, as servitude holder, has the implied right to pipe the Molen River sloot on the servient tenement.
  2. 2 Whether the addendum to the deed of sale constitutes a valid and binding agreement permitting piping of the sloot.
  3. 3 Whether the particulars of claim disclose a cause of action or lack necessary averments to sustain an action.

Ratio Decidendi

The court held that the first ground of exception, relating to the validity and enforceability of the addendum to the deed of sale, was upheld because the plaintiffs failed to plead sufficient facts to support their legal conclusions. Mere allegations that piping would destroy the furrow or alter maintenance obligations were insufficient without factual detail. The second ground of exception, concerning the implied right to pipe the sloot under the servitude agreement, was dismissed. The court found that whether such an implied right exists, and whether it is reasonably necessary for the exercise of the servitude, is a matter for the trial court to determine after hearing evidence. The...

Court Disposition

Exception partially upheld; amendment application partially granted; costs awarded against plaintiffs.

Orders

  • The plaintiffs are granted leave to amend claims 1 and 2 of the particulars of claim and are to pay the costs of the amendment application, including the costs of senior counsel.
  • The first ground of exception raised by the first defendant is upheld. The plaintiffs are granted leave to amend their particulars of claim within 15 days of this order.