Pfaiff and Another v Cameron (7142/2010) [2010] ZAWCHC 421 (10 June 2010)

Pfaiff and Another v Cameron (7142/2010) [2010] ZAWCHC 421 (10 June 2010)

The court found that the increase in the height of the servitude road beyond 500mm was necessitated by improvements made to the dominant tenement by the applicants, which could have been avoided with proper planning. The applicants were not entitled to raise the servitude road above the natural lie of the land as determined at the time of the servitude's creation. The court exercised its discretion not to order monetary compensation for the infringement, finding no reasonable prospect that another court would reach a different conclusion or interfere with this exercise of discretion. Accordingly, leave to appeal was refused with costs.

Citation
[2010] ZAWCHC 421
Parties
Applicant: David Michael Pfaiff; Applicant: Jack Alworth Smith; Respondent: Lorna Fay Cameron
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
10 June 2010
Case Number
7142/2010
Procedural Posture
Leave to Appeal / Application for Leave to Appeal
Outcome
Application for leave to appeal refused with costs.
Judges
Louw
Legal Topics
Servitude Right of Way, Monetary Compensation for Infringement, Discretionary Relief
Land and Property Servitude Right of Way Monetary Compensation for Infringement Discretionary Relief

Case Brief

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Parties

David Michael Pfaiff

Applicant

Jack Alworth Smith

Applicant

Lorna Fay Cameron

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal

Legal Issues

  1. 1 Whether there is a reasonable prospect that another court will reach a different conclusion regarding the servitude right of way.
  2. 2 Whether monetary compensation should have been ordered for the alleged infringement of the servitude.
  3. 3 Whether the exercise of judicial discretion in refusing compensation was correct.

Ratio Decidendi

The court found that the increase in the height of the servitude road beyond 500mm was necessitated by improvements made to the dominant tenement by the applicants, which could have been avoided with proper planning. The applicants were not entitled to raise the servitude road above the natural lie of the land as determined at the time of the servitude's creation. The court exercised its discretion not to order monetary compensation for the infringement, finding no reasonable prospect that another court would reach a different conclusion or interfere with this exercise of discretion. Accordingly, leave to appeal was refused with costs.

Court Disposition

Application for leave to appeal refused with costs.

Orders

  • The application for leave to appeal is refused.
  • The applicants are ordered to pay the costs of the application.