Nowers NO and Another v Burmeister and Another (EL 1038/08, ECD 2338/08) [2011] ZAECELLC 8 (2 August 2011)

Nowers NO and Another v Burmeister and Another (EL 1038/08, ECD 2338/08) [2011] ZAECELLC 8 (2 August 2011)

The court found that the applicants, by constructing a boundary wall in excess of the permitted height and allowing vegetation to grow beyond the servitude's restrictions, had abandoned the servitude. The respondents' erection of the structure was reasonable and not actuated by malice, as it was intended to protect their privacy from the applicants' security cameras. The structure was not unsightly and did not materially interfere with the applicants' enjoyment of their property; rather, it was the overgrown vegetation that obscured the view. The respondents established a substantial interest in the applicants' contraventions of municipal zoning and building regulations, and the court...

Citation
[2011] ZAECELLC 8
Parties
Applicant: Geo Nowers NO; Applicant: Venessa Elize Nowers NO; Respondent: Sheila Margaret Burmeister; Respondent: Peter Burmeister
Court
Eastern Cape High Court, East London Local Court
Jurisdiction
South Africa
Judgment Date
2 August 2011
Case Number
EL 1038/08, ECD 2338/08
Procedural Posture
Civil Application / Judgment After Opposed Application and Counter Application
Outcome
Applicants' application dismissed with costs; respondents' counter-application granted.
Judges
M Makaula
Legal Topics
Restrictive Servitude, Praedial Servitude, Nuisance, Municipal Zoning, Building Regulations, Abandonment of Servitude
Land and Property Civil Procedure Restrictive Servitude Praedial Servitude Nuisance Municipal Zoning Building Regulations Abandonment of Servitude

Case Brief

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Parties

Geo Nowers NO

Applicant

Venessa Elize Nowers NO

Applicant

Sheila Margaret Burmeister

Respondent

Peter Burmeister

Respondent

Procedural Posture

Civil Application / Judgment After Opposed Application and Counter Application

Legal Issues

  1. 1 Whether the respondents' erection of a structure on the servitude area constitutes a nuisance or contravenes the servitude.
  2. 2 Whether the servitude restricting structures and vegetation has been abandoned by the applicants.
  3. 3 Whether the applicants' construction activities contravened municipal zoning and building regulations.

Ratio Decidendi

The court found that the applicants, by constructing a boundary wall in excess of the permitted height and allowing vegetation to grow beyond the servitude's restrictions, had abandoned the servitude. The respondents' erection of the structure was reasonable and not actuated by malice, as it was intended to protect their privacy from the applicants' security cameras. The structure was not unsightly and did not materially interfere with the applicants' enjoyment of their property; rather, it was the overgrown vegetation that obscured the view. The respondents established a substantial interest in the applicants' contraventions of municipal zoning and building regulations, and the court...

Court Disposition

Applicants' application dismissed with costs; respondents' counter-application granted.

Orders

  • The application is dismissed with costs.
  • The reliefs sought in the counter-application are granted.