Van Rensburg and Another v Koekemoer and Others (2006/28207) [2010] ZAGPJHC 91; 2011 (1) SA 118 (GSJ) (11 October 2010)

Van Rensburg and Another v Koekemoer and Others (2006/28207) [2010] ZAGPJHC 91; 2011 (1) SA 118 (GSJ) (11 October 2010)

The court held that an oral agreement granting a personal servitude of habitatio over immovable property is unenforceable as it contravenes the writing requirements of section 2(1) of the Alienation of Land Act 68 of 1981. The applicants' reliance on an oral agreement, whether interpreted as a servitude or as a...

Source-derived case information.

Citation
[2010] ZAGPJHC 91
Parties
Applicant: Gideon Janse Van Rensburg; Applicant: Alida Janse Van Rensburg; Respondent: Johan Koekemoer; Respondent: Andre Terblanche; Respondent: Registrar of Deeds
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
11 October 2010
Case Number
2006/28207
Procedural Posture
Civil Procedure / Exception to Amended Particulars of Claim
Outcome
Exception upheld; amendment refused; applicants granted leave to further amend particulars of claim within 30 days.
Judges
C J Claassen
Legal Topics
Alienation of Land Act, Oral Agreements, Personal Servitude, Habitatio, Registration of Rights
Land and Property Civil Procedure Alienation of Land Act Oral Agreements Personal Servitude Habitatio Registration of Rights

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Parties

Gideon Janse Van Rensburg

Applicant

Alida Janse Van Rensburg

Applicant

Johan Koekemoer

Respondent

Andre Terblanche

Respondent

Registrar of Deeds

Respondent

Procedural Posture

Civil Procedure / Exception to Amended Particulars of Claim

Legal Issues

  1. 1 Does an oral agreement granting a servitude of habitatio over immovable property contravene the writing requirements of the Alienation of Land Act?
  2. 2 Can the applicants enforce an oral agreement for a personal servitude of residence against the first respondent?
  3. 3 Does the proposed amendment to the particulars of claim introduce a new cause of action that is prescribed?

Ratio Decidendi

The court held that an oral agreement granting a personal servitude of habitatio over immovable property is unenforceable as it contravenes the writing requirements of section 2(1) of the Alienation of Land Act 68 of 1981. The applicants' reliance on an oral agreement, whether interpreted as a servitude or as a donation of a right of residence, fails to meet the statutory formalities and is thus of no force or effect. The proposed amendment to the particulars of claim does not cure this defect, as it remains reliant on the oral agreement. The exception to the amended particulars of claim is accordingly upheld, and the applicants are refused leave to amend in the proposed terms but granted...

Court Disposition

Exception upheld; amendment refused; applicants granted leave to further amend particulars of claim within 30 days.

Orders

  • The exception is upheld with costs.
  • The amendment to the particulars of claim is refused.