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South Africa decisions
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Baartman v Stubbs and Others (15523/2013) [2015] ZAWCHC 29 (13 March 2015)
The court held that a servitude protecting sea views on Erf 983 covered a wild olive tree already planted when the restriction was created.
Jersey Lane Properties (Pty) Ltd t/a Fairlawn Boutique Hotel & Spa v Hodgson and Another (A5030/11) [2012] ZAGPJHC 86 (7 May 2012)
The court held that the strict interpretation adopted by the court a quo was inappropriate given the modern context of urban servitudes. The construction of the portico, while potentially intrusive, did not per se amount to an unreasonable exercise of rights under the servitude. The existence of factual disputes regarding the impact of the portico on the respondent's property and the pending municipal approval rendered the matter unsuitable for final determination on affidavit. A wide interpretation of the servitude, considering aesthetics, security, and local trends, was warranted. The matte…
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Le Roux and Others v Burger and Others (249/2011) [2011] ZASCA 194 (15 November 2011)
The Supreme Court of Appeal held that the servitude is clear and unambiguous in its wording. It grants the appellants joint use of the servitude dam and its water, with equal division and joint responsibility for maintenance, but does not extend to a right to half of all water in the catchment area or to water in other dams. The background facts and context do not justify a departure from the ordinary meaning of the servitude's wording. The appellants' argument was a repetition of their submissions before the court a quo, and there was no legal or factual error in the lower court's judgment.…
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Buchanan v Hope NO and Others (654/2010) [2013] ZAECGHC 93 (28 October 2011)
The court granted a declaratory order enforcing a registered servitude, holding that the defendants breached a 4-metre building-height restriction on servient land.
Le Roux NO and Anders v Burger and Anders (21020/2008) [2010] ZAWCHC 127 (10 June 2010)
The court held that the servitude entitled Erfdeel only to half the water physically in the servitude dam, not to catchment water. The application was dismissed with costs.
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