Roux and Others v Groenewald and Others (40691/2018) [2019] ZAGPPHC 273 (14 June 2019)

Roux and Others v Groenewald and Others (40691/2018) [2019] ZAGPPHC 273 (14 June 2019)

The court found that the oral right of way servitude agreement constituted an alienation of an interest in land as contemplated by section 1(b) of the Alienation of Land Act 68 of 1981. To be valid and binding, such an agreement must be in writing and signed by the parties. As the alleged servitude was not reduced to writing, it was invalid and unenforceable. The relief sought to declare the oral servitude valid and in force could not be granted, nor could any dependent relief. The court further accepted that the cancellation of the sale agreement and the contingent nature of the right of way reinforced the lack of enforceability. Costs were awarded to the first respondent, excluding...

Citation
[2019] ZAGPPHC 273
Parties
Applicant: Louis Adriaan Daniel Roux; Applicant: Petrus Ignatius Steenekamp; Applicant: Veroux Property Development CC; Respondent: Christiaan Johannes Petrus Groenewald; Respondent: Charl Louis Dercksen; Respondent: Tshwane Metropolitan Municipality
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
14 June 2019
Case Number
40691/2018
Procedural Posture
Civil Application / First Instance Judgment
Outcome
Application dismissed with costs awarded to the first respondent, excluding costs of the hearing on 2 May 2019 and the respondent's heads of argument.
Judges
Yvan Coertzen
Legal Topics
Oral Servitude Agreement, Alienation of Land Act, Non Joinder, Registration of Servitude, Sale of Land, Costs Order
Land and Property Civil Procedure Oral Servitude Agreement Alienation of Land Act Non Joinder Registration of Servitude Sale of Land Costs Order

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Parties

Louis Adriaan Daniel Roux

Applicant

Petrus Ignatius Steenekamp

Applicant

Veroux Property Development CC

Applicant

Christiaan Johannes Petrus Groenewald

Respondent

Charl Louis Dercksen

Respondent

Tshwane Metropolitan Municipality

Respondent

Procedural Posture

Civil Application / First Instance Judgment

Legal Issues

  1. 1 Whether an oral right of way servitude agreement over immovable property is valid and enforceable.
  2. 2 Whether the registered owner of the property (Coenbob Construction CC) should have been joined as a party.
  3. 3 Whether the oral servitude agreement can be registered or enforced under the Deeds Registries Act.

Ratio Decidendi

The court found that the oral right of way servitude agreement constituted an alienation of an interest in land as contemplated by section 1(b) of the Alienation of Land Act 68 of 1981. To be valid and binding, such an agreement must be in writing and signed by the parties. As the alleged servitude was not reduced to writing, it was invalid and unenforceable. The relief sought to declare the oral servitude valid and in force could not be granted, nor could any dependent relief. The court further accepted that the cancellation of the sale agreement and the contingent nature of the right of way reinforced the lack of enforceability. Costs were awarded to the first respondent, excluding...

Court Disposition

Application dismissed with costs awarded to the first respondent, excluding costs of the hearing on 2 May 2019 and the respondent's heads of argument.

Orders

  • The application is dismissed.
  • The applicants are ordered to pay the first respondent's costs, jointly and severally, the one paying, the others to be absolved, excluding the costs of the hearing on 2 May 2019 and excluding the costs of the first respondent's heads of argument.