Wyngaarden and Another v Fernbosch Trading CC (19032/2011) [2012] ZAWCHC 131 (2 February 2012)

Wyngaarden and Another v Fernbosch Trading CC (19032/2011) [2012] ZAWCHC 131 (2 February 2012)

The application fails because the applicants did not provide sufficient factual information regarding the financial implications for both parties, preventing the court from making a comparative judgment. Additionally, the necessity for the servitude was created by the applicants themselves, as their building plans did not provide for vehicular access from the public road despite knowledge of the steep slope. The law does not permit a way of necessity where the applicant has caused the necessity by their own actions.

Citation
[2012] ZAWCHC 131
Parties
Applicant: Heiko van Wyngaarden; Applicant: Nicola Evelyn van Wyngaarden; Respondent: Fernbosch Trading CC
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
2 February 2012
Case Number
19032/2011
Procedural Posture
Urgent Application / Interim Relief Application
Outcome
Application dismissed with costs.
Judges
Veldhuizen
Legal Topics
Servitude of Right of Way, Way of Necessity, Interim Relief, Property Access
Land and Property Servitude of Right of Way Way of Necessity Interim Relief Property Access

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Parties

Heiko van Wyngaarden

Applicant

Nicola Evelyn van Wyngaarden

Applicant

Fernbosch Trading CC

Respondent

Procedural Posture

Urgent Application / Interim Relief Application

Legal Issues

  1. 1 Whether the applicants are entitled to an interim servitude of right of way over the respondent's property pending finalisation of an action.
  2. 2 Whether the applicants have demonstrated sufficient necessity and financial justification for the servitude.
  3. 3 Whether the applicants created the necessity by their own design.

Ratio Decidendi

The application fails because the applicants did not provide sufficient factual information regarding the financial implications for both parties, preventing the court from making a comparative judgment. Additionally, the necessity for the servitude was created by the applicants themselves, as their building plans did not provide for vehicular access from the public road despite knowledge of the steep slope. The law does not permit a way of necessity where the applicant has caused the necessity by their own actions.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.
  • The preparation fees of the respondent's expert Mr ED Kelly shall be allowed on taxation.