Johl and Another v Nobre and Others (23841/2010) [2012] ZAWCHC 20 (20 March 2012)

Johl and Another v Nobre and Others (23841/2010) [2012] ZAWCHC 20 (20 March 2012)

The servitude agreement grants the dominant owner a right of way across the servient property, without any express or implied restrictions on the servient owner's access. The respondents' refusal to provide the applicants with a remote device for the automatic gate constitutes an unlawful restriction and increases the burden on the servient property beyond the terms of the servitude. The respondents' attempt to transform the servitude area into a security buffer for their exclusive use is contrary to the servitude agreement and the principle of civiliter modo. The applicants are entitled to access the servitude area from Gemini Way and to be provided with a remote device for the gate. The...

Citation
[2012] ZAWCHC 20
Parties
Applicant: Wilfried August Theodore Johl; Applicant: Birthe Benny Margrethe Macun; Respondent: Rui Miguel Rodrigues Nobre; Respondent: Erf 85 Athol Township (Pty) Ltd; Respondent: The City of Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
20 March 2012
Case Number
23841/2010
Procedural Posture
Civil Application / Final Interdict
Outcome
Application granted. The applicants are entitled to access the servitude area from Gemini Way and to be provided with a remote device for the automatic gate. The respondents are ordered to pay costs on an attorney and client scale, jointly and severally.
Judges
Y.S. Meer
Legal Topics
Servitude Right of Way, Praedial Servitude, Interpretation of Servitude Agreement, Civiliter Modo, Burden on Servient Property
Land and Property Servitude Right of Way Praedial Servitude Interpretation of Servitude Agreement Civiliter Modo Burden on Servient Property

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Parties

Wilfried August Theodore Johl

Applicant

Birthe Benny Margrethe Macun

Applicant

Rui Miguel Rodrigues Nobre

Respondent

Erf 85 Athol Township (Pty) Ltd

Respondent

The City of Cape Town

Respondent

Procedural Posture

Civil Application / Final Interdict

Legal Issues

  1. 1 Whether the applicants are entitled to access the servitude area from Gemini Way via the driveway gate.
  2. 2 Whether the respondents may lawfully restrict the applicants' access to the servitude area by refusing to provide a remote device for the automatic gate.
  3. 3 Whether the respondents' actions constitute an impermissible increase of the burden on the servient property beyond the terms of the servitude.

Ratio Decidendi

The servitude agreement grants the dominant owner a right of way across the servient property, without any express or implied restrictions on the servient owner's access. The respondents' refusal to provide the applicants with a remote device for the automatic gate constitutes an unlawful restriction and increases the burden on the servient property beyond the terms of the servitude. The respondents' attempt to transform the servitude area into a security buffer for their exclusive use is contrary to the servitude agreement and the principle of civiliter modo. The applicants are entitled to access the servitude area from Gemini Way and to be provided with a remote device for the gate. The...

Court Disposition

Application granted. The applicants are entitled to access the servitude area from Gemini Way and to be provided with a remote device for the automatic gate. The respondents are ordered to pay costs on an attorney and client scale, jointly and severally.

Orders

  • The first and second applicants are entitled to access from Gemini Way the portion of Erf 7938, Constantia subject to the servitude right of way in favour of Remainder Erf 7939, Constantia, as depicted by Surveyor General Diagram no. 512/78 and Notarial Deed of Servitude K14/1995S.
  • The first and second applicants are entitled to be provided with a remote device to the security gate erected at the entrance to the servitude area on Gemini Way, Constantia.