Kruger v Joles Eiendom (Pty) Ltd and Another (400/07) [2008] ZASCA 138; 2009 (3) SA 5 (SCA) ; [2009] 1 All SA 553 (SCA) (27 November 2008)

Kruger v Joles Eiendom (Pty) Ltd and Another (400/07) [2008] ZASCA 138; 2009 (3) SA 5 (SCA) ; [2009] 1 All SA 553 (SCA) (27 November 2008)

The Supreme Court of Appeal held that the servitude in question, described as 'for the common use of' the two properties, was at best ambiguous. Applying the principle that servitudes must be interpreted restrictively, the court found that the servitude should be limited to use of the passage as a passageway for access, not for broader urban servitude purposes. There was no evidence of use or circumstances at the time of creation to support a wider interpretation. The evidence showed that the servitude had not been exercised for over thirty years, satisfying the requirements for extinction by prescription under section 7(1) of the Prescription Act. Regarding the cross-appeal, the court...

Citation
[2008] ZASCA 138
Parties
Appellant: Johan Bloem Kruger; Respondent: Joles Eiendom (Pty) Ltd; Respondent: Registrar of Deeds (Cape Town)
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 November 2008
Case Number
400/07
Procedural Posture
Civil Appeal / Appeal From the High Court, Cape Town (full Court)
Outcome
Appeal upheld; cross-appeal dismissed.
Judges
MPATI, MTHIYANE, CLOETE, HEHER, KGOMO
Legal Topics
Servitude Interpretation, Extinctive Prescription, Acquisitive Prescription, Title Deed Conditions
Land and Property Civil Procedure Servitude Interpretation Extinctive Prescription Acquisitive Prescription Title Deed Conditions

Case Brief

Summary, issues, holding and outcome

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Parties

Johan Bloem Kruger

Appellant

Joles Eiendom (Pty) Ltd

Respondent

Registrar of Deeds (Cape Town)

Respondent

Procedural Posture

Civil Appeal / Appeal From the High Court, Cape Town (full Court)

Legal Issues

  1. 1 Whether the servitude registered over the plaintiff's property in favour of the defendant's property was extinguished by prescription.
  2. 2 Whether the plaintiff acquired part of the defendant's property by prescription.
  3. 3 How ambiguous servitude clauses in title deeds should be interpreted.

Ratio Decidendi

The Supreme Court of Appeal held that the servitude in question, described as 'for the common use of' the two properties, was at best ambiguous. Applying the principle that servitudes must be interpreted restrictively, the court found that the servitude should be limited to use of the passage as a passageway for access, not for broader urban servitude purposes. There was no evidence of use or circumstances at the time of creation to support a wider interpretation. The evidence showed that the servitude had not been exercised for over thirty years, satisfying the requirements for extinction by prescription under section 7(1) of the Prescription Act. Regarding the cross-appeal, the court...

Court Disposition

Appeal upheld; cross-appeal dismissed.

Orders

  • The appeal succeeds, with costs.
  • The order of the full court is set aside and substituted with: 'The appeal is dismissed, with costs.'