Meyer v Trustees for the Time Being of the Aurum Mykel Trust (A345/2018) [2019] ZAWCHC 44; 2020 (2) SA 557 (WCC) (29 April 2019)

Meyer v Trustees for the Time Being of the Aurum Mykel Trust (A345/2018) [2019] ZAWCHC 44; 2020 (2) SA 557 (WCC) (29 April 2019)

The court found that the appellant failed to prove the acquisition of a right of way servitude by implied consent because the properties were not in common ownership at the time of sub-division and the servitude would burden a neighbouring property, contrary to the van Leeuwen principle. Regarding acquisitive prescription, the appellant did not provide sufficient evidence of continuous, open, and adverse use of the disputed road for 30 years. The existence of an alternative route and the lack of proof of uninterrupted use undermined the claim. Furthermore, the alleged use by implied consent was incompatible with the requirements of nec precario and adverse user. The magistrate’s dismissal...

Citation
[2019] ZAWCHC 44
Parties
Appellant: Marcel Meyer; Respondent: Trustees for the Time Being of the Aurum Mykel Trust
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
29 April 2019
Case Number
A345/2018
Procedural Posture
Civil Appeal / Appeal From Knysna Magistrate’s Court; Condonation for Late Filing Granted; Appeal Heard and Decided
Outcome
Appeal dismissed with costs; costs in the court a quo to be as between party and party, including costs of counsel.
Judges
Francis, Bozalek
Legal Topics
Servitude by Implied Consent, Acquisitive Prescription, Right of Way, Final Interdict, Costs Award
Land and Property Civil Procedure Servitude by Implied Consent Acquisitive Prescription Right of Way Final Interdict Costs Award

Case Brief

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Parties

Marcel Meyer

Appellant

Trustees for the Time Being of the Aurum Mykel Trust

Respondent

Procedural Posture

Civil Appeal / Appeal From Knysna Magistrate’s Court; Condonation for Late Filing Granted; Appeal Heard and Decided

Legal Issues

  1. 1 Whether the appellant acquired a right of way servitude by implied consent over the respondent’s property upon sub-division.
  2. 2 Whether the appellant satisfied the requirements for acquisitive prescription regarding the disputed road.

Ratio Decidendi

The court found that the appellant failed to prove the acquisition of a right of way servitude by implied consent because the properties were not in common ownership at the time of sub-division and the servitude would burden a neighbouring property, contrary to the van Leeuwen principle. Regarding acquisitive prescription, the appellant did not provide sufficient evidence of continuous, open, and adverse use of the disputed road for 30 years. The existence of an alternative route and the lack of proof of uninterrupted use undermined the claim. Furthermore, the alleged use by implied consent was incompatible with the requirements of nec precario and adverse user. The magistrate’s dismissal...

Court Disposition

Appeal dismissed with costs; costs in the court a quo to be as between party and party, including costs of counsel.

Orders

  • The appeal is dismissed with costs, subject to the costs order below.
  • The costs of the action in the court a quo will be as between party and party and will include the costs of counsel.