Langebosch (Pty) Ltd v Lubbe and Another (A221/2019) [2019] ZAWCHC 169 (10 December 2019)

Langebosch (Pty) Ltd v Lubbe and Another (A221/2019) [2019] ZAWCHC 169 (10 December 2019)

The court found that the fence erected and intended to be extended by the respondents, resulting in a width of 3,6 meters or less, unlawfully interferes with the appellant's right to reasonably exercise its servitude, particularly the right to enter upon the servient property for road improvement and maintenance. The servitude does not confer a right to simultaneous passage of vehicles in opposite directions, nor does it include a tacit term for layby spaces. However, the fence as constructed makes it impossible for the appellant to carry out necessary road works without unreasonable inconvenience and cost. The respondents' argument that the appellant could temporarily lift or cut the...

Citation
[2019] ZAWCHC 169
Parties
Appellant: Langebosch (Pty) Ltd; Respondent: Dewald Lubbe; Respondent: Hanlie Lubbe
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
10 December 2019
Case Number
A221/2019
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court
Outcome
Appeal upheld. The order of the magistrate's court is set aside and replaced with an interdict preventing the respondents from erecting any fence along the servitude road resulting in a width of 3,6 meters or less. The parties shall pay their own costs in the court below; respondents to pay appellant's costs on...
Judges
O L Rogers, C Fortuin
Legal Topics
Servitude Rights, Interdict, Interpretation of Notarial Deed, Boundary Dispute
Land and Property Civil Procedure Servitude Rights Interdict Interpretation of Notarial Deed Boundary Dispute

Case Brief

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Parties

Langebosch (Pty) Ltd

Appellant

Dewald Lubbe

Respondent

Hanlie Lubbe

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court

Legal Issues

  1. 1 Whether the fence erected by the respondents unlawfully interferes with the appellant's rights as dominant owner under the servitude.
  2. 2 Whether the appellant is entitled to an interdict preventing the erection of a fence that restricts reasonable exercise of servitude rights.
  3. 3 Whether the servitude includes a tacit right to layby spaces for vehicles to pass each other.

Ratio Decidendi

The court found that the fence erected and intended to be extended by the respondents, resulting in a width of 3,6 meters or less, unlawfully interferes with the appellant's right to reasonably exercise its servitude, particularly the right to enter upon the servient property for road improvement and maintenance. The servitude does not confer a right to simultaneous passage of vehicles in opposite directions, nor does it include a tacit term for layby spaces. However, the fence as constructed makes it impossible for the appellant to carry out necessary road works without unreasonable inconvenience and cost. The respondents' argument that the appellant could temporarily lift or cut the...

Court Disposition

Appeal upheld. The order of the magistrate's court is set aside and replaced with an interdict preventing the respondents from erecting any fence along the servitude road resulting in a width of 3,6 meters or less. The parties shall pay their own costs in the court below; respondents to pay appellant's costs on...

Orders

  • The order of the court a quo is set aside and replaced with orders in terms of paragraphs 1 and 2 of the applicant's notice of motion dated 13 February 2019.
  • The respondents are interdicted from erecting any fence along the southern boundary of the servitude road described in notarial deed of servitude 152/2015 which results in the fenced width being equal to or less than 3,6 meters.