McLennan-Smith and Others v Mannaru and Others (10977/2014) [2020] ZAKZDHC 17; [2020] 3 All SA 814 (KZD) (30 April 2020)

McLennan-Smith and Others v Mannaru and Others (10977/2014) [2020] ZAKZDHC 17; [2020] 3 All SA 814 (KZD) (30 April 2020)

The court found that, under the common law, beneficiaries of a servitude cannot unilaterally erect a security gate across a servitude without the owner's consent, as this constitutes an encroachment and imposes a prohibited burden. However, the oral agreement between the parties permitted a temporary gate, and the plaintiffs' security concerns are genuine. The law must balance the plaintiffs' right to security with the defendant's property rights, applying a reasonable use standard. The court recognised the need to develop the common law to accommodate modern security needs, provided such development does not result in arbitrary deprivation of property. The plaintiffs are permitted to...

Citation
[2020] ZAKZDHC 17
Parties
Plaintiff: Robert McLennan-Smith; Plaintiff: Paige McLennan-Smith; Plaintiff: Leith Ross Cawcutt; Plaintiff: Glenda Cawcutt; Defendant: Morganambal Mannaru; Defendant: Body Corporate of Kings Avenue No.1; Defendant: Registrar of Deeds, Kwazulu-Natal
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
30 April 2020
Case Number
10977/2014
Procedural Posture
Civil Trial / Final Judgment
Outcome
Plaintiffs succeed in obtaining permission to erect and maintain a gate on the servitude, subject to conditions; defendant directed to sign Notarial Deed of Road Servitude; each party to pay own costs; defendant's counterclaim adjourned indefinitely.
Judges
D Pillay
Legal Topics
Servitude Rights, Security Gate Encroachment, Rectification of Title Deeds, Common Law Development, Constitutional Property Rights
Land and Property Civil Procedure Servitude Rights Security Gate Encroachment Rectification of Title Deeds Common Law Development Constitutional Property Rights

Case Brief

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Parties

Robert McLennan-Smith

Plaintiff

Paige McLennan-Smith

Plaintiff

Leith Ross Cawcutt

Plaintiff

Glenda Cawcutt

Plaintiff

Morganambal Mannaru

Defendant

Body Corporate of Kings Avenue No.1

Defendant

Registrar of Deeds, Kwazulu-Natal

Defendant

Procedural Posture

Civil Trial / Final Judgment

Legal Issues

  1. 1 Does the common law permit beneficiaries of a road servitude to erect a security gate across the servitude without the owner's consent?
  2. 2 Is the defendant's refusal to allow a permanent gate unreasonable or a breach of the oral agreement?
  3. 3 Should the title deeds be rectified to reflect the servitude in favour of the plaintiffs' properties?

Ratio Decidendi

The court found that, under the common law, beneficiaries of a servitude cannot unilaterally erect a security gate across a servitude without the owner's consent, as this constitutes an encroachment and imposes a prohibited burden. However, the oral agreement between the parties permitted a temporary gate, and the plaintiffs' security concerns are genuine. The law must balance the plaintiffs' right to security with the defendant's property rights, applying a reasonable use standard. The court recognised the need to develop the common law to accommodate modern security needs, provided such development does not result in arbitrary deprivation of property. The plaintiffs are permitted to...

Court Disposition

Plaintiffs succeed in obtaining permission to erect and maintain a gate on the servitude, subject to conditions; defendant directed to sign Notarial Deed of Road Servitude; each party to pay own costs; defendant's counterclaim adjourned indefinitely.

Orders

  • Plaintiffs are permitted to erect and maintain a gate on the road servitude marked NPQRST between points P and S, subject to conditions: unsupervised access for defendants and authorised users, appropriate technology to be used, costs for erection and maintenance to be borne by plaintiffs, and plaintiffs must...
  • Order remains in force for as long as the first or second defendant is the owner of the servitude or until varied by agreement.