Morganambal Mannaru and another v Robert MacLennan-Smith and others (271/2021) [2022] ZASCA 137; 2023 (2) SA 150 (SCA) (24 October 2022)

Morganambal Mannaru and another v Robert MacLennan-Smith and others (271/2021) [2022] ZASCA 137; 2023 (2) SA 150 (SCA) (24 October 2022)

The Supreme Court of Appeal held that the right of way servitude must be exercised in accordance with the civiliter modo principle, requiring a reasonable balancing of the rights of the dominant and servient owners. The erection of a gate across the servitude road, in the absence of an agreement to the contrary, is permissible provided it does not unreasonably interfere with the servient owner's rights. The high court correctly weighed the security concerns of the respondents against the appellants' access rights, ensuring that the appellants retained reasonable access to the servitude area. The order for registration of the servitude merely confirmed what was common cause between the...

Citation
[2022] ZASCA 137
Parties
Appellant: Morganambal Mannaru; Appellant: Body Corporate of Kings Avenue No 1; Respondent: Robert MacLennan-Smith; Respondent: Paige MacLennan-Smith; Respondent: Leith Ross Cawcut; Respondent: Glenda Cawcut; Respondent: Registrar of Deeds KwaZulu-Natal
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
24 October 2022
Case Number
271/2021
Procedural Posture
Civil Appeal / Appeal From Kwa Zulu Natal Division of the High Court, Durban
Outcome
Appeal and cross appeal dismissed with costs.
Judges
Van der Merwe, Mothle, Mabindla-Boqwana, Molefe, Masipa
Legal Topics
Servitude Right of Way, Civiliter Modo, Gate Erection on Servitude, Balancing of Rights, Arbitrary Deprivation of Property, Registration of Servitude
Land and Property Servitude Right of Way Civiliter Modo Gate Erection on Servitude Balancing of Rights Arbitrary Deprivation of Property Registration of Servitude

Case Brief

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Parties

Morganambal Mannaru

Appellant

Body Corporate of Kings Avenue No 1

Appellant

Robert MacLennan-Smith

Respondent

Paige MacLennan-Smith

Respondent

Leith Ross Cawcut

Respondent

Glenda Cawcut

Respondent

Registrar of Deeds KwaZulu-Natal

Respondent

Procedural Posture

Civil Appeal / Appeal From Kwa Zulu Natal Division of the High Court, Durban

Legal Issues

  1. 1 Whether the owners of dominant tenements are entitled to erect a gate across a servitude road.
  2. 2 Whether the servient owner can be compelled to register a notarial deed of road servitude.
  3. 3 Whether the erection of a gate constitutes unlawful interference with servitude rights.

Ratio Decidendi

The Supreme Court of Appeal held that the right of way servitude must be exercised in accordance with the civiliter modo principle, requiring a reasonable balancing of the rights of the dominant and servient owners. The erection of a gate across the servitude road, in the absence of an agreement to the contrary, is permissible provided it does not unreasonably interfere with the servient owner's rights. The high court correctly weighed the security concerns of the respondents against the appellants' access rights, ensuring that the appellants retained reasonable access to the servitude area. The order for registration of the servitude merely confirmed what was common cause between the...

Court Disposition

Appeal and cross appeal dismissed with costs.

Orders

  • The appeal and the cross appeal are dismissed with costs.