Werner v Florauna Kwekery Bk and Others (224/14) [2015] ZASCA 46; 2016 (2) SA 282 (SCA) (26 March 2015)

Werner v Florauna Kwekery Bk and Others (224/14) [2015] ZASCA 46; 2016 (2) SA 282 (SCA) (26 March 2015)

The Supreme Court of Appeal held that the mere depiction of a servitude area on a Surveyor-General's sub-divisional diagram, without registration in the Deeds Office, does not constitute a servitude of right of way in favour of the public. The servitude depicted was intended only for access to envisaged business developments, which did not materialize, and the business rights had lapsed. No conditions were imposed requiring access for the Ozoroa Park residents or the general public. The cancellation of the servitude note on the diagram, while possibly irregular, was not decisive to the outcome. The appellant was entitled to an order setting aside the lower court's decision and confirming...

Citation
[2015] ZASCA 46
Parties
Appellant: Willem Gerhardus Werner; Respondent: Florauna Kwekery BK; Respondent: Registrar of Deeds, Pretoria; Respondent: Surveyor-General, Pretoria; Respondent: Johannes Jacobus Horn
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 March 2015
Case Number
224/14
Procedural Posture
Civil Appeal / Appeal From Gauteng Division, Pretoria
Outcome
Appeal upheld. The order of the court below is set aside and replaced with an order dismissing the application with costs and confirming the rule nisi.
Judges
Mpati, Majiedt, Pillay, Schoeman, Van Der Merwe
Legal Topics
Servitude of Right of Way, Registration of Servitude, Deeds Registries Act, Prescription, Property Rights, Subdivision and Development
Land and Property Civil Procedure Servitude of Right of Way Registration of Servitude Deeds Registries Act Prescription Property Rights Subdivision and Development

Case Brief

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Parties

Willem Gerhardus Werner

Appellant

Florauna Kwekery BK

Respondent

Registrar of Deeds, Pretoria

Respondent

Surveyor-General, Pretoria

Respondent

Johannes Jacobus Horn

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division, Pretoria

Legal Issues

  1. 1 Whether the depiction of a servitude area on a Surveyor-General's sub-divisional diagram, without registration in the Deeds Office, constitutes a servitude of right of way in favour of the public.
  2. 2 Whether the owners of the property can invoke prescription as a defence to the claim for registration of the servitude.
  3. 3 Whether the cancellation of the servitude note on the sub-divisional diagram was lawful.

Ratio Decidendi

The Supreme Court of Appeal held that the mere depiction of a servitude area on a Surveyor-General's sub-divisional diagram, without registration in the Deeds Office, does not constitute a servitude of right of way in favour of the public. The servitude depicted was intended only for access to envisaged business developments, which did not materialize, and the business rights had lapsed. No conditions were imposed requiring access for the Ozoroa Park residents or the general public. The cancellation of the servitude note on the diagram, while possibly irregular, was not decisive to the outcome. The appellant was entitled to an order setting aside the lower court's decision and confirming...

Court Disposition

Appeal upheld. The order of the court below is set aside and replaced with an order dismissing the application with costs and confirming the rule nisi.

Orders

  • The appeal is upheld and the first respondent is ordered to pay the costs of the appeal.
  • The order of the court below is set aside and replaced with: (1) The application is dismissed with costs; (2) The rule nisi issued on 25 October 2010, specifically paragraphs 1.1 to 1.4, is confirmed; (3) The applicant is ordered to pay the costs of the counter-application.