Seale and Others v Minister of Public Works and Others (899/2019) [2020] ZASCA 130 (15 October 2020)

Seale and Others v Minister of Public Works and Others (899/2019) [2020] ZASCA 130 (15 October 2020)

Clause K and the notarial contract did not create enforceable rights to registration of praedial servitudes, as they failed to identify a dominant tenement and amounted to an unenforceable agreement to agree, lacking a deadlock-breaking mechanism. The title deed provisions merely echoed the unenforceable clause K. The evidence did not establish acquisitive prescription, as there was insufficient proof of continuous use of the foreshore as if of right for 30 years prior to 1971. The second appellant, Ontspan Beleggings, is clothed with a registered praedial servitude of access to the Dam over the foreshore in front of portion 43 by virtue of the Crown Grant, and the second respondent...

Citation
[2020] ZASCA 130
Parties
Appellant: Kingsley Jack Whiteaway Seale; Appellant: Ontspan Beleggings (Pty) Ltd; Appellant: HI Frank Components (Pty) Ltd; Appellant: Schoemansville Oewerklub; Respondent: Minister of Public Works; Respondent: Minister of Water and Sanitation; Respondent: Premier of the North-West Province; Respondent: Transvaal Yacht Club; Respondent: Registrar of Deeds, Pretoria
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
15 October 2020
Case Number
899/2019
Procedural Posture
Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria
Outcome
Appeal dismissed with costs, including costs of two counsel. Costs order of the court a quo substituted as specified.
Judges
Ponnan, Zondi, Dambuza, Van der Merwe, Weiner
Legal Topics
Servitude Registration, Acquisitive Prescription, Agreement to Agree, Deadlock Breaking Mechanism, Praedial Servitude, Title Deed Interpretation
Land and Property Civil Procedure Servitude Registration Acquisitive Prescription Agreement to Agree Deadlock Breaking Mechanism Praedial Servitude Title Deed Interpretation

Case Brief

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Parties

Kingsley Jack Whiteaway Seale

Appellant

Ontspan Beleggings (Pty) Ltd

Appellant

HI Frank Components (Pty) Ltd

Appellant

Schoemansville Oewerklub

Appellant

Minister of Public Works

Respondent

Minister of Water and Sanitation

Respondent

Premier of the North-West Province

Respondent

Transvaal Yacht Club

Respondent

Registrar of Deeds, Pretoria

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria

Legal Issues

  1. 1 Whether clause K and the notarial contract created enforceable rights to registration of praedial servitudes over the foreshore for boating and fishing purposes.
  2. 2 Whether the appellants acquired servitudal rights by acquisitive prescription under the Prescription Act 18 of 1943.
  3. 3 Whether the second appellant is entitled to a declarator regarding its rights under the Crown Grant.

Ratio Decidendi

Clause K and the notarial contract did not create enforceable rights to registration of praedial servitudes, as they failed to identify a dominant tenement and amounted to an unenforceable agreement to agree, lacking a deadlock-breaking mechanism. The title deed provisions merely echoed the unenforceable clause K. The evidence did not establish acquisitive prescription, as there was insufficient proof of continuous use of the foreshore as if of right for 30 years prior to 1971. The second appellant, Ontspan Beleggings, is clothed with a registered praedial servitude of access to the Dam over the foreshore in front of portion 43 by virtue of the Crown Grant, and the second respondent...

Court Disposition

Appeal dismissed with costs, including costs of two counsel. Costs order of the court a quo substituted as specified.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.
  • The first, third and fourth applicants are jointly and severally ordered to pay the costs of the second respondent, including the costs of two counsel.