South Africa Case Law

Schutte v Five Lakes Farm CC and Others (18104/2014)

Schutte v Five Lakes Farm CC and Others (18104/2014) [2018] ZAWCHC 132 (15 February 2018)

Court

Western Cape High Court, Cape Town

Case number

18104/2014

Judge

Van Staden

The court found that the applicant established, on the evidence of Schutte, Kleynhans, and Oosthuizen, that water was extracted from the Duiwe River and led across Portion 211 to Portion 210 during the qualifying period, and that this use was authorised under the previous Water Act. The court held that it was not necessary for the applicant to prove the exact volume of water used, as the extent of an existing lawful water use is not limited to the specific volume extracted during the qualifying period. The court accepted the reliability of the applicant's witnesses over the respondent's, noti…

Source excerpt

• Praedial Servitude
• National Water Act
• Existing Lawful Water Use
• Onus Of Proof
• Compensation For Servitude

Rautenbach v Ongegunde Vryheid CC (CA186/2006)

Rautenbach v Ongegunde Vryheid CC (CA186/2006) [2007] ZAECHC 44 (18 June 2007)

Court

High Courts - Eastern Cape

Case number

CA186/2006

Judges

Jones, Dambuza

Appeal dismissed: the appellant failed to prove that a servitude ex necessitate was necessary for access to his cottage.

• Servitude Ex Necessitate
• Right Of Way
• Access To Landlocked Property
• Compensation For Servitude
• Servitude-ex-necessitate
• Right-of-way

Aventura Ltd. v Jackson and Others (290/05)

Aventura Ltd. v Jackson and Others (290/05) [2006] ZASCA 103; 2007 (5) SA 497 (SCA) (15 September 2006)

Court

Supreme Court of Appeal

Case number

290/05

Judges

Harms, Nugent, Conradie, Lewis, Maya

The Supreme Court of Appeal held that the necessity for a right of way is determined by whether it is the only reasonably sufficient means of access to the landlocked property, not by whether regulatory authorisations have been obtained. The requirement for environmental authorisation is a separate matter and does not affect the legal necessity for access. The practical issue of obtaining authorisation before constructing the road can be resolved by making the grant of the right of way conditional upon such authorisation. The servitude should be registered only after authorisation is obtained…

Source excerpt

• Right Of Way Of Necessity
• Servitude Registration
• Environmental Authorisation
• Compensation For Servitude