Pezula Private Estate (Pty) Ltd v Metelerkamp and Another (149/2013) [2013] ZASCA 188; [2014] 1 All SA 664 (SCA); 2014 (5) SA 37 (SCA) (29 November 2013)

Pezula Private Estate (Pty) Ltd v Metelerkamp and Another (149/2013) [2013] ZASCA 188; [2014] 1 All SA 664 (SCA); 2014 (5) SA 37 (SCA) (29 November 2013)

The Supreme Court of Appeal held that Mr Metelerkamp failed to prove that his use of the strip road was nec precario, as the evidence established that access was permitted and even encouraged by Mr Henderson, the lessee. Use by permission does not satisfy the requirement of adverse user for acquisitive prescription. Furthermore, the alleged servitude did not benefit Mr Metelerkamp's property, as the strip road did not connect to the Divisional Road, and thus failed the requirement for a praedial servitude. The court found that the high court erred in concluding that Geo Parkes retained control over the strip road, as Mr Henderson exercised control and could permit access. Consequently,...

Citation
[2013] ZASCA 188
Parties
Appellant: Pezula Private Estate (Pty) Ltd; Respondent: Neil Metelerkamp; Respondent: Registrar of Deeds
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 November 2013
Case Number
149/2013
Procedural Posture
Civil Appeal / Appeal From Western Cape High Court
Outcome
Appeal upheld; high court order set aside and replaced with dismissal of the application with costs.
Judges
Brand, Tshiqi, Theron, Petse, Zondi
Legal Topics
Acquisitive Prescription, Praedial Servitude, Nec Precario, Adverse Possession, Right of Way
Land and Property Civil Procedure Acquisitive Prescription Praedial Servitude Nec Precario Adverse Possession Right of Way

Case Brief

Summary, issues, holding and outcome

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Parties

Pezula Private Estate (Pty) Ltd

Appellant

Neil Metelerkamp

Respondent

Registrar of Deeds

Respondent

Procedural Posture

Civil Appeal / Appeal From Western Cape High Court

Legal Issues

  1. 1 Whether Mr Metelerkamp acquired a servitude of unhindered pedestrian access over Pezula's property by prescription.
  2. 2 Whether the use of the strip road was nec precario (not by permission) and thus adverse for prescription purposes.
  3. 3 Whether the alleged servitude provided a benefit to Mr Metelerkamp's property as required for a praedial servitude.

Ratio Decidendi

The Supreme Court of Appeal held that Mr Metelerkamp failed to prove that his use of the strip road was nec precario, as the evidence established that access was permitted and even encouraged by Mr Henderson, the lessee. Use by permission does not satisfy the requirement of adverse user for acquisitive prescription. Furthermore, the alleged servitude did not benefit Mr Metelerkamp's property, as the strip road did not connect to the Divisional Road, and thus failed the requirement for a praedial servitude. The court found that the high court erred in concluding that Geo Parkes retained control over the strip road, as Mr Henderson exercised control and could permit access. Consequently,...

Court Disposition

Appeal upheld; high court order set aside and replaced with dismissal of the application with costs.

Orders

  • The appeal is upheld with costs.
  • The order of the high court is set aside and replaced with: 'The application is dismissed with costs.'