South African National Parks v Weyer-Henderson and Others (1089/03) [2006] ZAECHC 75; 2007 (3) SA 109 (SE) (12 December 2006)

South African National Parks v Weyer-Henderson and Others (1089/03) [2006] ZAECHC 75; 2007 (3) SA 109 (SE) (12 December 2006)

The court found that the servitude reserved in the 1919 deed of submission to arbitration granted the defendants grazing rights over the entire hatched area, not merely the smaller area contended by the plaintiff. The arbitration award must be read in context with the deed of submission, which is the source document for the servitude. The Water Court's 1950 judgment did not extinguish the defendants' grazing rights, as compensation was awarded for partial loss due to inundation, not for total extinguishment of rights. Even if the servitude had been extinguished, the defendants established all requirements for acquisitive prescription, having exercised grazing rights openly, continuously,...

Citation
[2006] ZAECHC 75
Parties
Plaintiff: South African National Parks; Defendant: Philip Weyer-Henderson; Defendant: Johnny Weyer-Henderson
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
12 December 2006
Case Number
1089/03
Procedural Posture
Civil Trial / Judgment After Trial
Outcome
Plaintiff's claim dismissed with costs.
Judges
RJW Jones
Legal Topics
Servitude Interpretation, Prescription, Ejectment, Water Rights
Land and Property Civil Procedure Servitude Interpretation Prescription Ejectment Water Rights

Case Brief

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Parties

South African National Parks

Plaintiff

Philip Weyer-Henderson

Defendant

Johnny Weyer-Henderson

Defendant

Procedural Posture

Civil Trial / Judgment After Trial

Legal Issues

  1. 1 Whether the servitude granted to the defendants' predecessor in title as reflected in the 1919 arbitration and as registered against the title deeds was in respect of the entire portion claimed by the defendants, or only a smaller area as contended by the plaintiff.
  2. 2 Whether the servitude was lost when the defendants were compensated by the order of the Water Court in 1950.
  3. 3 Whether, in any event, the defendants have acquired the servitude for which they now contend by prescription.

Ratio Decidendi

The court found that the servitude reserved in the 1919 deed of submission to arbitration granted the defendants grazing rights over the entire hatched area, not merely the smaller area contended by the plaintiff. The arbitration award must be read in context with the deed of submission, which is the source document for the servitude. The Water Court's 1950 judgment did not extinguish the defendants' grazing rights, as compensation was awarded for partial loss due to inundation, not for total extinguishment of rights. Even if the servitude had been extinguished, the defendants established all requirements for acquisitive prescription, having exercised grazing rights openly, continuously,...

Court Disposition

Plaintiff's claim dismissed with costs.

Orders

  • The plaintiff's claim is dismissed with costs, including the costs of two counsel, the costs of an inspection in loco, and the costs of any photographs allowed by the taxing master.