Joles Eiendom (Pty) Limited v Kruger and Another (A332/06) [2007] ZAWCHC 9; 2007 (5) SA 222 (C) (1 March 2007)

Joles Eiendom (Pty) Limited v Kruger and Another (A332/06) [2007] ZAWCHC 9; 2007 (5) SA 222 (C) (1 March 2007)

The court held that the servitude was not limited to a footpath but encompassed any lawful use appropriate to the nature and situation of the passage. The evidence showed that the appellant's predecessors in title had exercised various rights over the passage, such as storage, drainage, and telecommunication installations, which constituted permissible uses under the servitude. The respondent failed to discharge the onus of proving non-use for the prescriptive period, and the trial court erred in disregarding evidence of such uses. The claim of abandonment was not pleaded or proved, and the late amendment to raise abandonment was refused. Regarding acquisitive prescription, the respondent...

Citation
[2007] ZAWCHC 9
Parties
Appellant: Joles Eiendom (Pty) Limited; Respondent: Johan Bloem Kruger; Respondent: Registrar of Deeds
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
1 March 2007
Case Number
A332/06
Procedural Posture
Civil Appeal / Appeal From Trial Court Decision
Outcome
Appeal succeeds in part; orders relating to extinction of servitude set aside; respondent acquires ownership of extended passage by prescription; each party to pay own costs.
Judges
B M Griesel, J H M Traverso, T C Ndita
Legal Topics
Servitude Extinction, Acquisitive Prescription, Praedial Servitude, Onus of Proof, Abandonment of Rights
Land and Property Civil Procedure Servitude Extinction Acquisitive Prescription Praedial Servitude Onus of Proof Abandonment of Rights

Case Brief

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Parties

Joles Eiendom (Pty) Limited

Appellant

Johan Bloem Kruger

Respondent

Registrar of Deeds

Respondent

Procedural Posture

Civil Appeal / Appeal From Trial Court Decision

Legal Issues

  1. 1 Whether the servitude of common use over the passage between the properties had lapsed through non-use for more than 30 years.
  2. 2 Whether the plaintiff acquired ownership of the extended passage by acquisitive prescription.
  3. 3 Whether the construction of a wall by a predecessor amounted to abandonment of the servitude.

Ratio Decidendi

The court held that the servitude was not limited to a footpath but encompassed any lawful use appropriate to the nature and situation of the passage. The evidence showed that the appellant's predecessors in title had exercised various rights over the passage, such as storage, drainage, and telecommunication installations, which constituted permissible uses under the servitude. The respondent failed to discharge the onus of proving non-use for the prescriptive period, and the trial court erred in disregarding evidence of such uses. The claim of abandonment was not pleaded or proved, and the late amendment to raise abandonment was refused. Regarding acquisitive prescription, the respondent...

Court Disposition

Appeal succeeds in part; orders relating to extinction of servitude set aside; respondent acquires ownership of extended passage by prescription; each party to pay own costs.

Orders

  • Paragraphs 1, 2 and 5 of the order of the court a quo are set aside.
  • Each party is ordered to pay his/its own costs of the trial and appeal.