Spalding and Another v Androdox Proprietary Limited and Another (14057/2024P) [2025] ZAKZPHC 70 (31 July 2025)

Spalding and Another v Androdox Proprietary Limited and Another (14057/2024P) [2025] ZAKZPHC 70 (31 July 2025)

The court found that the four metre right of way servitude was created to provide access to the remainder of sub 2 of Erf 6[...] until alternative access to a public road was provided. The consolidation of the remainder of sub 2 with portion 1 resulted in the creation of Erf 6[...], which has a registered six metre panhandle providing access to a public road. The remainder of sub 2 no longer exists as a separate entity requiring access, and the condition for lapse of the servitude has been fulfilled. The purported panhandle agreement was not valid or enforceable due to lack of written agreement and registration. The combined municipal decision notice does not create or extend the...

Citation
[2025] ZAKZPHC 70
Parties
Applicant: Maxine Paige Spalding; Applicant: Tyler Case McMurtrie; Respondent: Androdox Proprietary Limited; Respondent: Registrar of Deeds, Pietermaritzburg
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
31 July 2025
Case Number
14057/2024P
Procedural Posture
Review Application / Judgment
Outcome
Application granted. Relief sought by Applicants is granted in terms of paragraphs 1 to 7 of the Notice of Motion, except for paragraph 7 as amended.
Judges
P C Bezuidenhout
Legal Topics
Servitude Lapse, Deeds Registry Act, Alienation of Land Act, Title Deed Encumbrance
Land and Property Servitude Lapse Deeds Registry Act Alienation of Land Act Title Deed Encumbrance

Case Brief

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Parties

Maxine Paige Spalding

Applicant

Tyler Case McMurtrie

Applicant

Androdox Proprietary Limited

Respondent

Registrar of Deeds, Pietermaritzburg

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the four metre wide right of way servitude registered over portion 22 of Erf 6[...] A[...] has lapsed.
  2. 2 Whether the consolidation of the remainder of sub 2 of Erf 6[...] with portion 1 constitutes provision of alternative access to a public road.
  3. 3 Whether the purported panhandle agreement and payment of R35,000.00 created a valid servitude or affected the existing servitude.

Ratio Decidendi

The court found that the four metre right of way servitude was created to provide access to the remainder of sub 2 of Erf 6[...] until alternative access to a public road was provided. The consolidation of the remainder of sub 2 with portion 1 resulted in the creation of Erf 6[...], which has a registered six metre panhandle providing access to a public road. The remainder of sub 2 no longer exists as a separate entity requiring access, and the condition for lapse of the servitude has been fulfilled. The purported panhandle agreement was not valid or enforceable due to lack of written agreement and registration. The combined municipal decision notice does not create or extend the...

Court Disposition

Application granted. Relief sought by Applicants is granted in terms of paragraphs 1 to 7 of the Notice of Motion, except for paragraph 7 as amended.

Orders

  • The four metre wide right of way servitude registered over portion 22 of Erf 6[...] A[...] has lapsed.
  • The Registrar of Deeds, Pietermaritzburg, is directed to record the lapse of the servitude.