Shelldrake Game Range CC and Others v Scottco (Pty) Ltd (33487/2004) [2007] ZAGPHC 37 (25 April 2007)

Shelldrake Game Range CC and Others v Scottco (Pty) Ltd (33487/2004) [2007] ZAGPHC 37 (25 April 2007)

The court found that there was a bona fide, genuine dispute of fact regarding the existence and nature of the right of way over the disputed access road, which could not be resolved on the papers. The applicants were aware of the factual disputes but proceeded by way of application rather than summons. The court held that the matter must be referred to trial, with the notice of motion standing as a simple summons and the notice of intention to oppose as a notice of intention to defend. The applicants were ordered to deliver a declaration within twenty days, after which the rules relating to actions would apply. The costs of the application were awarded against the applicants, as they...

Citation
[2007] ZAGPHC 37
Parties
Applicant: Shelldrake Game Range CC; Applicant: Esmelau Eiendomme (Pty) Ltd; Applicant: Counterpoint Trading 498 CC; Applicant: Peregrine Consulting CC; Respondent: Scottco (Pty) Ltd
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
25 April 2007
Case Number
33487/2004
Procedural Posture
Civil Application / Referral to Trial After Opposed Application and Counter Application
Outcome
Application referred to trial; costs awarded against applicants.
Judges
Pretorius
Legal Topics
Servitude of Right of Way, Prescription Act, Public Road Declaration, Dispute of Fact, Costs Award
Land and Property Civil Procedure Servitude of Right of Way Prescription Act Public Road Declaration Dispute of Fact Costs Award

Case Brief

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Parties

Shelldrake Game Range CC

Applicant

Esmelau Eiendomme (Pty) Ltd

Applicant

Counterpoint Trading 498 CC

Applicant

Peregrine Consulting CC

Applicant

Scottco (Pty) Ltd

Respondent

Procedural Posture

Civil Application / Referral to Trial After Opposed Application and Counter Application

Legal Issues

  1. 1 Whether the applicants are entitled to a declaratory order permanently closing the access road across the second applicant's property.
  2. 2 Whether the respondent has a servitude of right of way over the disputed access road by prescription or necessity.
  3. 3 Whether the disputed access road qualifies as a public road under relevant legislation.

Ratio Decidendi

The court found that there was a bona fide, genuine dispute of fact regarding the existence and nature of the right of way over the disputed access road, which could not be resolved on the papers. The applicants were aware of the factual disputes but proceeded by way of application rather than summons. The court held that the matter must be referred to trial, with the notice of motion standing as a simple summons and the notice of intention to oppose as a notice of intention to defend. The applicants were ordered to deliver a declaration within twenty days, after which the rules relating to actions would apply. The costs of the application were awarded against the applicants, as they...

Court Disposition

Application referred to trial; costs awarded against applicants.

Orders

  • The application is referred to trial.
  • The notice of motion shall stand as a simple summons.