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South Africa decisions
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K.S-D v R.G.D and Others (637/2024) [2024] ZAECQBHC 66 (8 October 2024)
The High Court upheld exceptions to particulars of claim about beach-house access, finding the alleged agreement vague, embarrassing, and unsupported as pleaded.
Du Bois N.O and Others v Ski Club of South Africa (20909/2022) [2024] ZAWCHC 128 (9 May 2024)
The High Court upheld exceptions to a counterclaim for a perpetual personal servitude, finding it legally unsustainable and vague for failing to plead the inception date.
Trustees for the Time Being of the P G W Family Trust and Others v N.W and Others (87/2023) [2024] ZAWCHC 57 (31 January 2024)
The respondents' occupation of the property was at best a personal right (precarium), not a real right of habitatio, and any such right has been lawfully terminated on reasonable notice. The Trust, as owner, is entitled to vindicate its rights and realise the asset for the benefit of its beneficiaries. The respondents, though vulnerable due to age and disability, have no enforceable right to remain. The municipality has undertaken to provide alternative accommodation, and the applicants have made reasonable offers to assist with care and transport. Balancing the rights of the owner and the oc…
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Engelbrecht N.O v Master of the High Court, Kimberly and Others (432/2020) [2021] ZANCHC 11 (8 January 2021)
The court found that clause B(i) of the will is clear and unambiguous, conferring a right of habitatio over both Plot 243 and Plot 741 to the second respondent until her death or remarriage. The opposing respondents failed to establish any ambiguity or latent ambiguity in the will, and their reliance on extrinsic evidence was rejected. The right of habitatio, as a personal servitude, includes the right to lease and sub-lease the properties and to receive rental proceeds. The applicant established the court's jurisdiction for declaratory relief, and the opposition did not succeed. Costs were a…
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Phillips v Grobler and Others (A291/17) [2019] ZAWCHC 157; [2020] 1 All SA 253 (WCC) (21 November 2019)
Appeal against an eviction order was upheld where the appellant’s life-long right of occupation, ESTA protection, and PIE fairness weighed against eviction.
Chevron South Africa (Proprietary) Limited v Ebisu Dealers CC and Others (8523/2017) [2019] ZAGPJHC 91 (14 March 2019)
The High Court held respondents in contempt for breaching an interdict over a servitude and granted final interdictory relief enforcing the restrictive title condition.
Frantrade Nineteen (Pty) Limited and Others Realty Corporation of South Africa Limited and Others (20400/2018) [2019] ZAGPJHC 313 (22 February 2019)
The High Court dismissed an application to remove a restrictive title deed condition, holding the applicants lacked standing under the statute and consent was required.
Bondev Midrand (Pty) Limited v Puling and Others (58/2014) [2015] ZAGPPHC 1127 (27 October 2015)
The High Court held that Bondev’s claim to re-transfer land for non-compliance with a building condition was a debt under the Prescription Act and had prescribed.
Troksie and Another v Liquidator of RSD Construction CC Wilbecar Liquidators CC t/a Bureau Trust Gauteng RSD Construction CC and Others (71322/2010) [2015] ZAGPPHC 321 (8 May 2015)
The court found that the applicants did not acquire a valid usufruct by oral or written agreement, as the oral agreement was unenforceable under the Alienation of Land Act and the written agreement only granted a limited right of occupation, which had expired. Registration of a personal servitude after liquidation is impermissible, as it would prejudice the general body of creditors. The applicants did not have an improvement lien enforceable in these proceedings; any claim for improvements must be lodged with the liquidators. The applicants' occupation was unlawful, and PIE did not provide a…
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Bester v Claasen and Another (6686/2007) [2015] ZAFSHC 246 (5 March 2015)
The court held that the applicant's rights under the agreement—lifelong occupation, use for rental and fishing, and keeping livestock—were personal rights, not registered against the title deed, and not intended to be real rights. South African law accepts that a debtor's right, title, and interest in incorporeal things, including personal rights, are capable of attachment and sale in execution. The restriction on transfer in the agreement was for the benefit of the first respondent, not to prevent attachment. The sale in execution was properly conducted, with notice given to the applicant, a…
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