West Dune Properties 296 (Pty) Ltd and Another v Baront Investments (Pty) Ltd and Others (490/09) [2010] ZAKZPHC 22 (14 May 2010)

West Dune Properties 296 (Pty) Ltd and Another v Baront Investments (Pty) Ltd and Others (490/09) [2010] ZAKZPHC 22 (14 May 2010)

The court found that the cancellation of the temporary road servitude over the first respondent’s property did not comply with the peremptory requirements of section 211 of the Local Authority Ordinance, as the prescribed procedures for closure of a public street were not followed. The agreement reached between the parties regarding the retention of part of Ferro Close as a public road was not binding on the first respondent, who was not a party to the meetings and agreement, and there was insufficient evidence that the first respondent had knowledge of the agreement at the time of acquiring the property. The servitude-creating agreement was not in writing and thus unenforceable under the...

Citation
[2010] ZAKZPHC 22
Parties
Applicant: West Dune Properties 296 (Pty) Ltd; Applicant: Imbali Props 42 (Pty) Ltd; Respondent: Baront Investments (Pty) Ltd; Respondent: City of Umhlathuze; Respondent: The Registrar of Deeds, Kwazulu-Natal
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
14 May 2010
Case Number
490/09
Procedural Posture
Urgent Application / Final Judgment After Interim Relief and Joinder
Outcome
Application granted in part; order for re-registration of servitude and costs awarded.
Judges
Mnguni
Legal Topics
Road Servitude Registration, Public Street Closure, Alienation of Land Act, Local Authority Ordinance, Spoliation, Costs Award
Land and Property Civil Procedure Road Servitude Registration Public Street Closure Alienation of Land Act Local Authority Ordinance Spoliation Costs Award

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Parties

West Dune Properties 296 (Pty) Ltd

Applicant

Imbali Props 42 (Pty) Ltd

Applicant

Baront Investments (Pty) Ltd

Respondent

City of Umhlathuze

Respondent

The Registrar of Deeds, Kwazulu-Natal

Respondent

Procedural Posture

Urgent Application / Final Judgment After Interim Relief and Joinder

Legal Issues

  1. 1 Whether the first respondent should be ordered to register a reduced road servitude over its property in favour of the second respondent for public road purposes.
  2. 2 Whether the second respondent should be ordered to pay the costs of registering the servitude.
  3. 3 Whether the cancellation of the temporary road servitude complied with statutory requirements under the Local Authority Ordinance.

Ratio Decidendi

The court found that the cancellation of the temporary road servitude over the first respondent’s property did not comply with the peremptory requirements of section 211 of the Local Authority Ordinance, as the prescribed procedures for closure of a public street were not followed. The agreement reached between the parties regarding the retention of part of Ferro Close as a public road was not binding on the first respondent, who was not a party to the meetings and agreement, and there was insufficient evidence that the first respondent had knowledge of the agreement at the time of acquiring the property. The servitude-creating agreement was not in writing and thus unenforceable under the...

Court Disposition

Application granted in part; order for re-registration of servitude and costs awarded.

Orders

  • The first respondent is directed to have a road servitude re-registered as described in the original title deed in favour of the Richards Bay Transitional Local Council.
  • If the first respondent fails to comply within thirty days of request, the Sheriff is authorised to sign all necessary documents on its behalf to effect registration.