Turnbury House Properties (Pty) Ltd v Wallin and Another (18924/2020) [2022] ZAWCHC 95 (18 May 2022)

Turnbury House Properties (Pty) Ltd v Wallin and Another (18924/2020) [2022] ZAWCHC 95 (18 May 2022)

The court held that the servitudes registered in favour of the applicant over the first respondent's property remain valid and enforceable, notwithstanding the prior common ownership by Turnbury Wine Farms CC. The inclusion of the servitudes in both parties' title deeds and the terms of the deeds of sale provide...

Source-derived case information.

Citation
[2022] ZAWCHC 95
Parties
Applicant: Turnbury House Properties (Pty) Ltd; Respondent: Bjorn Anders Wallin; Respondent: Registrar of Deeds, Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
18 May 2022
Case Number
18924/2020
Procedural Posture
Civil Application / Final Relief on Motion
Outcome
Application granted. The servitudes registered in favour of the applicant are declared valid and enforceable. The first respondent is ordered to permit the applicant to exercise its servitude rights and to pay costs on the attorney and client scale.
Judges
P. S. Van Zyl
Legal Topics
Servitude Enforcement, Merger of Title, Rectification of Deeds, Specific Performance, Prescription of Servitude, Costs Award
Land and Property Civil Procedure Servitude Enforcement Merger of Title Rectification of Deeds Specific Performance Prescription of Servitude Costs Award

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Summary, issues, holding and outcome

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Parties

Turnbury House Properties (Pty) Ltd

Applicant

Bjorn Anders Wallin

Respondent

Registrar of Deeds, Cape Town

Respondent

Procedural Posture

Civil Application / Final Relief on Motion

Legal Issues

  1. 1 Whether the servitudes registered in favour of the applicant over the first respondent's property remain enforceable after both properties were previously owned by the same entity.
  2. 2 Whether the servitude relating to the borehole was extinguished by destruction or merger.
  3. 3 Whether the applicant's right of way servitude was lost by prescription due to non-use.

Ratio Decidendi

The court held that the servitudes registered in favour of the applicant over the first respondent's property remain valid and enforceable, notwithstanding the prior common ownership by Turnbury Wine Farms CC. The inclusion of the servitudes in both parties' title deeds and the terms of the deeds of sale provide prima facie proof of their existence, and the first respondent failed to discharge the evidentiary burden to show that the registration was induced by fraud or error. The court found that the servitude relating to the borehole was not extinguished by destruction, as the right pertains to water sourced from underground the first respondent's property, and replacement boreholes may...

Court Disposition

Application granted. The servitudes registered in favour of the applicant are declared valid and enforceable. The first respondent is ordered to permit the applicant to exercise its servitude rights and to pay costs on the attorney and client scale.

Orders

  • The first respondent is directed, within 60 ordinary days, to permit the applicant to exercise its servitude right to use the road running along the boundary CDEFGHJ on the first respondent’s property as marked on Diagram No. 6376/1947.
  • The first respondent must permit the applicant to construct a road not exceeding three metres in width in a reserved area with a width of five metres measured from the boundary, adjacent to the boundary and on the first respondent’s property from point E, via points F, G, and H to point J as shown on Diagram No....