Glover v Chelemu and Another (1352/2022) [2024] ZAGPJHC 43 (24 January 2024)

Glover v Chelemu and Another (1352/2022) [2024] ZAGPJHC 43 (24 January 2024)

The court held that the applicant was not entitled to compel registration of a servitude of right of way over the respondents' property based on an informal, undocumented agreement between previous owners. The principle established in Fedgroup Participation Bond Managers v Trustee, Capital Property Trust precludes an encroacher from seeking transfer of the encroached land absent an application by the owner for removal. The oral agreement relied upon by the applicant was unenforceable under section 2 of the Alienation of Land Act, which requires such agreements to be in writing. Furthermore, the matter involved factual disputes regarding valuation and compensation that necessitate expert...

Citation
[2024] ZAGPJHC 43
Parties
Applicant: Fiona Tracy Glover; Respondent: Kwelati Chelemu; Respondent: Khwethiwe Chelemu
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
24 January 2024
Case Number
1352/2022
Procedural Posture
Civil Application / Judgment After Opposed Application and Counter Application
Outcome
Application and counter-application dismissed; no order as to costs except for wasted costs of postponement.
Judges
Johann Gautschi AJ
Legal Topics
Servitude Registration, Encroachment, Alienation of Land Act, Valuation Dispute
Land and Property Civil Procedure Servitude Registration Encroachment Alienation of Land Act Valuation Dispute

Case Brief

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Parties

Fiona Tracy Glover

Applicant

Kwelati Chelemu

Respondent

Khwethiwe Chelemu

Respondent

Procedural Posture

Civil Application / Judgment After Opposed Application and Counter Application

Legal Issues

  1. 1 Whether the applicant is entitled to compel registration of a servitude of right of way over the respondents' property based on an informal agreement between previous owners.
  2. 2 Whether the oral agreement regarding the encroached area is enforceable in light of section 2 of the Alienation of Land Act.
  3. 3 Whether the matter is appropriate for determination by application proceedings or requires referral to trial for expert evidence on valuation and compensation.

Ratio Decidendi

The court held that the applicant was not entitled to compel registration of a servitude of right of way over the respondents' property based on an informal, undocumented agreement between previous owners. The principle established in Fedgroup Participation Bond Managers v Trustee, Capital Property Trust precludes an encroacher from seeking transfer of the encroached land absent an application by the owner for removal. The oral agreement relied upon by the applicant was unenforceable under section 2 of the Alienation of Land Act, which requires such agreements to be in writing. Furthermore, the matter involved factual disputes regarding valuation and compensation that necessitate expert...

Court Disposition

Application and counter-application dismissed; no order as to costs except for wasted costs of postponement.

Orders

  • The applicant's application is dismissed and no order as to costs is made so that each party will bear his/her own costs.
  • The respondents' counter-application is dismissed and no order as to costs is made so that each party will bear his/her own costs.