Padayachi v Pillay NO and Another (16587/2015) [2017] ZAKZPHC 11 (16 March 2017)

Padayachi v Pillay NO and Another (16587/2015) [2017] ZAKZPHC 11 (16 March 2017)

The court found that the applicant failed to prove that his and his predecessor's use of the driveway/lane over Erf [..]53 was adverse to the rights of the true owner and not by permission or consent. The evidence, including correspondence and diary entries, indicated that access was controlled by NN, who granted permission and received payment for use of the driveway. The applicant's version was inconsistent and contradicted by documentary evidence. The court held that the use was not nec precario and therefore did not satisfy the requirements for acquisitive prescription of a servitude. The application was improperly brought by notice of motion despite clear disputes of fact, and the...

Citation
[2017] ZAKZPHC 11
Parties
Applicant: Shalendran Gopaul Padayachi; Respondent: Chandrakhanthi Pillay N.O.; Respondent: Dharam Naicker N.O.
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
16 March 2017
Case Number
16587/2015
Procedural Posture
Civil Application / Final Judgment
Outcome
Application dismissed with costs, including costs of senior counsel.
Judges
Madondo
Legal Topics
Acquisitive Prescription, Servitude by Prescription, Nec Precario, Adverse Possession, Real Rights, Estate Administration
Land and Property Acquisitive Prescription Servitude by Prescription Nec Precario Adverse Possession Real Rights Estate Administration

Case Brief

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Parties

Shalendran Gopaul Padayachi

Applicant

Chandrakhanthi Pillay N.O.

Respondent

Dharam Naicker N.O.

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the applicant and his predecessor in title acquired a servitudal right of way over Erf [..]53 by prescription.
  2. 2 Whether the use of the driveway/lane was open, peaceful, and as of right (nec vi, nec clam, nec precario) for the requisite period.
  3. 3 Whether the applicant's and his predecessor's use was adverse to the rights of the true owner or by consent.

Ratio Decidendi

The court found that the applicant failed to prove that his and his predecessor's use of the driveway/lane over Erf [..]53 was adverse to the rights of the true owner and not by permission or consent. The evidence, including correspondence and diary entries, indicated that access was controlled by NN, who granted permission and received payment for use of the driveway. The applicant's version was inconsistent and contradicted by documentary evidence. The court held that the use was not nec precario and therefore did not satisfy the requirements for acquisitive prescription of a servitude. The application was improperly brought by notice of motion despite clear disputes of fact, and the...

Court Disposition

Application dismissed with costs, including costs of senior counsel.

Orders

  • The application is dismissed with costs, including costs consequent upon the employment of senior counsel.