McLeroth v Naicker and Others (43885/2018) [2020] ZAGPJHC 177 (11 August 2020)

McLeroth v Naicker and Others (43885/2018) [2020] ZAGPJHC 177 (11 August 2020)

The applicant, as owner of Portion 29, has acquired a servitude of right of way over Portion 28 by acquisitive prescription, having exercised the right openly, voluntarily, and without hindrance for over 30 years, including the period exercised by her predecessor in title. There was no agreement or legal...

Source-derived case information.

Citation
[2020] ZAGPJHC 177
Parties
Applicant: Heather Monica Joy McLeroth; Respondent: Udesh Naicker; Respondent: Amantha Naidoo; Respondent: City of Johannesburg; Respondent: ABSA Bank Ltd; Respondent: Nedbank Ltd; Respondent: Charles de Andrade
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
11 August 2020
Case Number
43885/2018
Procedural Posture
Civil Application / Judgment
Outcome
Application granted. Servitude of right of way to be registered in perpetuity over Portion 28 in favour of owners of Portions 26, 27, and 29. Respondents to pay costs on attorney and client scale.
Judges
A Millar
Legal Topics
Acquisitive Prescription, Praedial Servitude, Right of Way, Registration of Servitude, Spoliation, Costs Order
Land and Property Civil Procedure Acquisitive Prescription Praedial Servitude Right of Way Registration of Servitude Spoliation Costs Order

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Parties

Heather Monica Joy McLeroth

Applicant

Udesh Naicker

Respondent

Amantha Naidoo

Respondent

City of Johannesburg

Respondent

ABSA Bank Ltd

Respondent

Nedbank Ltd

Respondent

Charles de Andrade

Respondent

Procedural Posture

Civil Application / Judgment

Legal Issues

  1. 1 Whether the applicant has acquired a servitude of right of way over Portion 28 by acquisitive prescription.
  2. 2 Whether the applicant is entitled to registration of the servitude as a via necessitas.
  3. 3 Whether the unregistered servitude, contemplated and used since the development, should now be registered.

Ratio Decidendi

The applicant, as owner of Portion 29, has acquired a servitude of right of way over Portion 28 by acquisitive prescription, having exercised the right openly, voluntarily, and without hindrance for over 30 years, including the period exercised by her predecessor in title. There was no agreement or legal relationship negating the adverse nature of the use, and the respondents' argument that the use was by agreement is unfounded. The servitude must be registered in perpetuity in favour of the owners of Portions 26, 27, and 29, in accordance with the servitude diagram and draft notarial agreement. The respondents' conduct in provoking and prolonging the dispute warrants a punitive costs...

Court Disposition

Application granted. Servitude of right of way to be registered in perpetuity over Portion 28 in favour of owners of Portions 26, 27, and 29. Respondents to pay costs on attorney and client scale.

Orders

  • First and Second Respondents must allow registration of a servitude of right of way in perpetuity over Portion 28 in favour of owners of Portions 26, 27, and 29, in accordance with Servitude Diagram S.G. No. A7234/84 and the draft notarial agreement annexed as 'A'.
  • First and Second Respondents must sign all documents necessary for registration of the servitude, including the notarial agreement.