Micawber 526 (Pty) Ltd v City of Tshwane (A252/13) [2015] ZAGPPHC 237 (27 March 2015)

Micawber 526 (Pty) Ltd v City of Tshwane (A252/13) [2015] ZAGPPHC 237 (27 March 2015)

The magistrate erred in granting absolution from the instance based on uncertainty regarding the appellant's entitlement to tar the servitude area. The respondent's plea was a special plea, and the onus to prove the allegations rested on the respondent. The evidence established that the appellant had obtained written permission for the tarred parking area, and the respondent had previously repaired the tarred surface. The respondent failed to repair the excavated area, creating a danger and unlawfully interfering with the appellant's property rights. The amount expended by the appellant for remedial work was reasonable and recoverable. The content of the servitude was not relevant to the...

Citation
[2015] ZAGPPHC 237
Parties
Appellant: Micawber 526 (Pty) Ltd; Respondent: City of Tshwane
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
27 March 2015
Case Number
A252/13
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court Judgment
Outcome
Appeal upheld with costs; order of absolution from the instance set aside; respondent ordered to pay damages and costs.
Judges
C.P. Rabie, M. Ismail
Legal Topics
Servitude Rights, Remedial Work, Absolution From Instance, Damages, Condonation, Municipal Permissions
Land and Property Civil Procedure Servitude Rights Remedial Work Absolution From Instance Damages Condonation Municipal Permissions

Case Brief

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Parties

Micawber 526 (Pty) Ltd

Appellant

City of Tshwane

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court Judgment

Legal Issues

  1. 1 Whether the appellant was entitled to construct a tarred parking area over the servitude.
  2. 2 Whether the respondent was obliged to restore the servitude area to its previous state after maintenance work.
  3. 3 Whether the respondent's failure to repair the excavated area constituted unlawful conduct.

Ratio Decidendi

The magistrate erred in granting absolution from the instance based on uncertainty regarding the appellant's entitlement to tar the servitude area. The respondent's plea was a special plea, and the onus to prove the allegations rested on the respondent. The evidence established that the appellant had obtained written permission for the tarred parking area, and the respondent had previously repaired the tarred surface. The respondent failed to repair the excavated area, creating a danger and unlawfully interfering with the appellant's property rights. The amount expended by the appellant for remedial work was reasonable and recoverable. The content of the servitude was not relevant to the...

Court Disposition

Appeal upheld with costs; order of absolution from the instance set aside; respondent ordered to pay damages and costs.

Orders

  • The condonation applications by the appellant are granted and the appeal is reinstated.
  • The appeal is upheld with costs.