Florauna Kwekery BK v Werner en Anders (8555/2010) [2013] ZAGPPHC 307 (23 October 2013)

Florauna Kwekery BK v Werner en Anders (8555/2010) [2013] ZAGPPHC 307 (23 October 2013)

The court found that the servitude of right of way was validly created and should be registered against the title deed for the benefit of the general public. The cancellation of the servitude note on the subdivision diagram was unauthorized and must be rectified. The Prescription Act does not apply to the claim for rectification of the land register, as there is no debt owed by the respondents that can be extinguished by prescription. The objections raised by the respondents regarding prescription and the existence of the servitude were rejected. The court ordered the relevant authorities to restore the servitude note and register the servitude, and directed the first and fourth...

Citation
[2013] ZAGPPHC 307
Parties
Applicant: Florauna Kwekery BK; Respondent: W. M. G. Werner; Respondent: Registrateur van Aktes, Pretoria; Respondent: Landmeter-Generaal, Pretoria; Respondent: J. J. Horn
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
23 October 2013
Case Number
8555/2010
Procedural Posture
Review Application / Final Judgment
Outcome
Application granted; servitude of right of way declared to exist and to be registered; costs awarded against first and fourth respondents.
Judges
F G Preller
Legal Topics
Registration of Servitude, Rectification of Land Registers, Prescription Act Application, Costs Order
Land and Property Civil Procedure Registration of Servitude Rectification of Land Registers Prescription Act Application Costs Order

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Parties

Florauna Kwekery BK

Applicant

W. M. G. Werner

Respondent

Registrateur van Aktes, Pretoria

Respondent

Landmeter-Generaal, Pretoria

Respondent

J. J. Horn

Respondent

Procedural Posture

Review Application / Final Judgment

Legal Issues

  1. 1 Whether a servitude of right of way exists over the specified property.
  2. 2 Whether the cancellation of the servitude note on the subdivision diagram was unauthorized and should be rectified.
  3. 3 Whether the servitude should be registered against the title deed in favour of the general public.

Ratio Decidendi

The court found that the servitude of right of way was validly created and should be registered against the title deed for the benefit of the general public. The cancellation of the servitude note on the subdivision diagram was unauthorized and must be rectified. The Prescription Act does not apply to the claim for rectification of the land register, as there is no debt owed by the respondents that can be extinguished by prescription. The objections raised by the respondents regarding prescription and the existence of the servitude were rejected. The court ordered the relevant authorities to restore the servitude note and register the servitude, and directed the first and fourth...

Court Disposition

Application granted; servitude of right of way declared to exist and to be registered; costs awarded against first and fourth respondents.

Orders

  • The order nisi made by this court on 25 October 2010 is set aside with costs.
  • It is declared that a servitude of right of way exists over Portion 374 (a portion of Portion 91) of the farm Hartebeeshoek 303, Registration Division JR, Gauteng Province.