Resnekov v Cohen (1787/11) [2011] ZAWCHC 317; 2012 (1) SA 314 (WCC); [2012] 1 All SA 680 (WCC) (24 August 2011)

Resnekov v Cohen (1787/11) [2011] ZAWCHC 317; 2012 (1) SA 314 (WCC); [2012] 1 All SA 680 (WCC) (24 August 2011)

The court found that the restriction in the respondent's title deed was a personal servitude, not a praedial one, as it was not registered in favour of any specific property but rather a person. The applicant's property was not identified as a dominant tenement, and the servitude was not registered against his title. The court rejected the argument that a personal servitude could be made perpetual and transferable by agreement, noting that South African law does not recognise such rights and that the authorities cited do not support the applicant's position. The applicant therefore lacked locus standi to enforce the restriction, and the application was dismissed.

Citation
[2011] ZAWCHC 317
Parties
Applicant: Anton Michael Resnekov; Respondent: Gordon Cohen
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
24 August 2011
Case Number
1787/11
Procedural Posture
Urgent Application / First Instance
Outcome
Application dismissed with costs.
Judges
Griesel
Legal Topics
Restrictive Conditions, Personal Servitude, Praedial Servitude, Title Deed Interpretation
Land and Property Restrictive Conditions Personal Servitude Praedial Servitude Title Deed Interpretation

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 10 Party arguments 2
Sign in to unlock

Parties

Anton Michael Resnekov

Applicant

Gordon Cohen

Respondent

Procedural Posture

Urgent Application / First Instance

Legal Issues

  1. 1 Whether the title deed restriction constitutes a praedial or personal servitude.
  2. 2 Whether a personal servitude can be made perpetual and transferable by agreement.
  3. 3 Whether the applicant has locus standi to enforce the restrictive condition.

Ratio Decidendi

The court found that the restriction in the respondent's title deed was a personal servitude, not a praedial one, as it was not registered in favour of any specific property but rather a person. The applicant's property was not identified as a dominant tenement, and the servitude was not registered against his title. The court rejected the argument that a personal servitude could be made perpetual and transferable by agreement, noting that South African law does not recognise such rights and that the authorities cited do not support the applicant's position. The applicant therefore lacked locus standi to enforce the restriction, and the application was dismissed.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.