South Africa Case Law

Flemix Property Investments (Pty) Ltd v Weyers and Another - Appeal (A98/2023)

Flemix Property Investments (Pty) Ltd v Weyers and Another - Appeal (A98/2023) [2024] ZAFSHC 122 (2 May 2024)

Court

Free State High Court, Bloemfontein

Case number

A98/2023

Judges

Daffue, Van Rhyn, Reinders

The court held that Weyers, as applicant, bore the onus to prove that the servitude of right of way by necessity over Tienfontein was the shortest and least burdensome route to the nearest public road. Flemix demonstrated that an alternative, shorter route exists across Zwartlaagte. Weyers failed to show that the alternative route was impracticable or that the route over Tienfontein was necessary according to the legal standard. The existence of material disputes of fact regarding the practicality and burden of the respective routes rendered the matter unsuitable for determination by way of m…

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• Servitude Of Right Of Way
• Way Of Necessity
• Praedial Servitude
• Motion Proceedings
• Onus Of Proof

Shrives N.O and Others v Sammaritano and Others (2023-120777)

Shrives N.O and Others v Sammaritano and Others (2023-120777) [2024] ZAGPJHC 59 (9 January 2024)

Court

South Gauteng High Court, Johannesburg

Case number

2023-120777

Judge

G S Myburgh

The High Court dismissed an urgent interdict seeking restoration of a drainage pipe, finding no prima facie right and no balance of convenience in the applicants’ favour.

• Interim Interdict
• Natural Flow Of Water
• Stormwater Drainage
• Praedial Servitude
• Municipal Land Use Scheme
• Interim-interdict

Witwatersrand Estates Ltd v Century Property Developments (Pty) Ltd and Another (70603/2018)

Witwatersrand Estates Ltd v Century Property Developments (Pty) Ltd and Another (70603/2018) [2022] ZAGPPHC 733 (3 October 2022)

Court

North Gauteng High Court, Pretoria

Case number

70603/2018

Judge

N Davis

The court dismissed an interdict application over a property development dispute, finding no breach of the servitude documents and refusing specific performance.

• Servitude Agreements
• Specific Performance
• Contractual Interpretation
• Town Planning
• Praedial Servitude
• Final Interdict

Seale and Others v Minister of Public Works and Others (899/2019)

Seale and Others v Minister of Public Works and Others (899/2019) [2020] ZASCA 130 (15 October 2020)

Court

Supreme Court of Appeal

Case number

899/2019

Judges

Ponnan, Zondi, Dambuza, Van der Merwe, Weiner

Clause K and the notarial contract did not create enforceable rights to registration of praedial servitudes, as they failed to identify a dominant tenement and amounted to an unenforceable agreement to agree, lacking a deadlock-breaking mechanism. The title deed provisions merely echoed the unenforceable clause K. The evidence did not establish acquisitive prescription, as there was insufficient proof of continuous use of the foreshore as if of right for 30 years prior to 1971. The second appellant, Ontspan Beleggings, is clothed with a registered praedial servitude of access to the Dam over…

Source excerpt

• Servitude Registration
• Acquisitive Prescription
• Agreement To Agree
• Deadlock Breaking Mechanism
• Praedial Servitude
• Title Deed Interpretation

Boxerdale Holdings (Pty) Ltd and Others v Wulffers (3543/2019)

Boxerdale Holdings (Pty) Ltd and Others v Wulffers (3543/2019) [2020] ZAECPEHC 36 (29 September 2020)

Court

Eastern Cape High Court, Port Elizabeth

Case number

3543/2019

Judge

V Naidu

The court dealt with a disputed right of way over subdivided farm land, rejecting the claim to an agreed informal route but confirming a servitude for the landlocked portion.

• Praedial Servitude
• Right Of Way
• Landlocked Property
• Interdictory Relief
• Servitude Registration
• Praedial-servitude

McLeroth v Naicker and Others (43885/2018)

McLeroth v Naicker and Others (43885/2018) [2020] ZAGPJHC 177 (11 August 2020)

Court

South Gauteng High Court, Johannesburg

Case number

43885/2018

Judge

A Millar

The applicant, as owner of Portion 29, has acquired a servitude of right of way over Portion 28 by acquisitive prescription, having exercised the right openly, voluntarily, and without hindrance for over 30 years, including the period exercised by her predecessor in title. There was no agreement or legal relationship negating the adverse nature of the use, and the respondents' argument that the use was by agreement is unfounded. The servitude must be registered in perpetuity in favour of the owners of Portions 26, 27, and 29, in accordance with the servitude diagram and draft notarial agreeme…

Source excerpt

• Acquisitive Prescription
• Praedial Servitude
• Right Of Way
• Registration Of Servitude
• Spoliation
• Costs Order

Valostar 259 CC v Pienaar and Others (24197/2019)

Valostar 259 CC v Pienaar and Others (24197/2019) [2019] ZAGPJHC 532 (13 December 2019)

Court

South Gauteng High Court, Johannesburg

Case number

24197/2019

Judge

E F Dippenaar

The court held that the plaintiff’s averment of ownership must be accepted as true for purposes of exception, and as such, the plaintiff has locus standi. Any contradiction between the particulars of claim and the attached agreement may be clarified in evidence and does not render the claim excipiable. The claim for an unregistered praedial servitude is sufficiently pleaded as the existence of the servitude is alleged as a fact, and further details may be proved in evidence. However, the alternative claim based on via necessitas is not properly pleaded, as it lacks necessary averments regardi…

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• Praedial Servitude
• Locus Standi
• Exception Procedure
• Via Necessitas

Le Roux NO and Others v Botha NO and Others (5788/2016)

Le Roux NO and Others v Botha NO and Others (5788/2016) [2018] ZAWCHC 86 (3 July 2018)

Court

Western Cape High Court, Cape Town

Case number

5788/2016

Judge

A.G. Binns-Ward

High Court dispute over water servitudes and a replacement weir was dismissed because the applicants failed to prove exclusive rights or interference.

• Praedial Servitude
• Water Rights
• National Water Act
• Riparian Rights
• Environmental Authorisation
• Declaratory And Interdictory Relief

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…

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

Goldex 16 (Pty) Ltd v Bpdy Corporate of Waterford Golf and River Estate SS 139/2006 and Another (3979/2016)

Goldex 16 (Pty) Ltd v Bpdy Corporate of Waterford Golf and River Estate SS 139/2006 and Another (3979/2016) [2017] ZAFSHC 173 (13 October 2017)

Court

Free State High Court, Bloemfontein

Case number

3979/2016

Judge

Daffue

The court found that Goldex, as the owner of a Real Right of Extension, is not statutorily liable for payment of levies under the Sectional Titles Act or Management Act, except for limited contributions specified in section 3(1)(d) of the Management Act. However, Goldex contractually bound itself to pay levies for unsold stands, as evidenced by minutes of meetings and deeds of sale. The Body Corporate's claim for registration of servitudes was dismissed due to lack of specificity and supporting documentation, but the transfer of units 1 and 2 was ordered as Goldex did not object in principle.…

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• Sectional Titles Act
• Real Right Of Extension
• Levy Liability
• Contractual Obligation
• Management Act
• Praedial Servitude