Department: Rural Development & Land Reform and Another v Jacobs N.O. and Another (9774/2013) [2014] ZAGPPHC 961 (28 November 2014)

Department: Rural Development & Land Reform and Another v Jacobs N.O. and Another (9774/2013) [2014] ZAGPPHC 961 (28 November 2014)

The court found that the registered servitude over Coppice is a general servitude, granting the applicants a real right to use the servitude route, even in the absence of agreement on a specific route. The intention of the parties, as interpreted from the deed and conduct, was to create an enforceable general servitude, not an inchoate or unenforceable right. The second applicant, as lessee, has a direct and substantial interest and is entitled to enforce the right. The affidavits submitted by the applicants were found to be in substantial compliance with the regulations governing the administration of oaths. The applicants established all requirements for a final interdict: a clear...

Citation
[2014] ZAGPPHC 961
Parties
Applicant: Department: Rural Development & Land Reform; Applicant: Asikahlangentanda Co-operative; Respondent: Barry Jacobs NO; Respondent: Magrietha Mariana Jacobs NO
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
28 November 2014
Case Number
9774/2013
Procedural Posture
Urgent Application / Final Interdict Application
Outcome
Application granted. Final interdict issued in favour of the applicants.
Judges
A LC M Lephoko
Legal Topics
Right of Way Servitude, Interdict, Locus Standi, Administration of Oaths, Leasehold Rights
Land and Property Civil Procedure Right of Way Servitude Interdict Locus Standi Administration of Oaths Leasehold Rights

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Parties

Department: Rural Development & Land Reform

Applicant

Asikahlangentanda Co-operative

Applicant

Barry Jacobs NO

Respondent

Magrietha Mariana Jacobs NO

Respondent

Procedural Posture

Urgent Application / Final Interdict Application

Legal Issues

  1. 1 Whether the applicants are entitled to enforce the registered right of way servitude over Coppice.
  2. 2 Whether the second applicant has locus standi to bring the application.
  3. 3 Whether the affidavits submitted by the applicants comply with the regulations governing the administration of oaths.

Ratio Decidendi

The court found that the registered servitude over Coppice is a general servitude, granting the applicants a real right to use the servitude route, even in the absence of agreement on a specific route. The intention of the parties, as interpreted from the deed and conduct, was to create an enforceable general servitude, not an inchoate or unenforceable right. The second applicant, as lessee, has a direct and substantial interest and is entitled to enforce the right. The affidavits submitted by the applicants were found to be in substantial compliance with the regulations governing the administration of oaths. The applicants established all requirements for a final interdict: a clear...

Court Disposition

Application granted. Final interdict issued in favour of the applicants.

Orders

  • The respondents are interdicted and restrained from unlawfully denying the applicants the use of the registered right of way servitude over the Remaining Extent of Portion 1 of the farm Coppice 638, Registration Division JT, Mpumalanga.
  • The respondents are ordered to reopen the locked gate and restore the removed gate giving access to the public road through the servitude route over Coppice, as depicted by the purple line in Annexure 'RDL5' to the applicants' founding affidavit.