South Africa Case Law

N.C.M v Trustees for the time being of the Red Cherry Trust and Others (2024-003605)

N.C.M v Trustees for the time being of the Red Cherry Trust and Others (2024-003605) [2025] ZAGPJHC 662 (2 July 2025)

Court

South Gauteng High Court, Johannesburg

Case number

2024-003605

Judge

Aucamp

The High Court allowed transfer of an encroached strip of land for fair value, finding demolition disproportionate after a 22-year delay and limited prejudice.

• Boundary Encroachment
• Registration Of Servitude
• Compensation For Encroachment
• Neighbour Law
• Removal Of Unlawful Structure
• Boundary-encroachment

River Meadow Manor Properties (Pty) Ltd v Siyandasabelo Trading (Pty) Ltd and Others (16638/2022)

River Meadow Manor Properties (Pty) Ltd v Siyandasabelo Trading (Pty) Ltd and Others (16638/2022) [2024] ZAGPPHC 616 (13 June 2024)

Court

North Gauteng High Court, Pretoria

Case number

16638/2022

Judge

SJ Cowen

The High Court held that the applicant could enforce a contractual right to register a right-of-way servitude, despite later selling the dominant property.

• Registration Of Servitude
• Contractual Rights
• Sectional Title Scheme
• Environmental Authorisation
• Standing
• Costs Scale B

Eden Crescent Share Block Ltd v Olive Marketing CC and Others (1075/2020)

Eden Crescent Share Block Ltd v Olive Marketing CC and Others (1075/2020) [2022] ZASCA 177; 2023 (3) SA 476 (SCA) (9 December 2022)

Court

Supreme Court of Appeal

Case number

1075/2020

Judges

Dambuza ADP, Molemela JA, Plasket JA, Basson AJJA, Siwendu AJJA

The Supreme Court of Appeal held that a parking servitude over Eden’s property was valid as a general servitude and that statutory approval requirements did not apply.

• Servitude Validity
• Vagueness In Servitude
• Share Blocks Control Act
• Housing Development Schemes For Retired Persons Act
• Alienation Of Property
• Registration Of Servitude

Cameron and Another v Wessels and Others (2842/2022)

Cameron and Another v Wessels and Others (2842/2022) [2022] ZAFSHC 302 (7 November 2022)

Court

Free State High Court, Bloemfontein

Case number

2842/2022

Judge

Opperman

The court dismissed an application to confirm and divide a habitatio right under a will, holding that the servitude had not yet been registered and the relief sought was premature.

• Habitatio Servitude
• Succession And Wills
• Registration Of Servitude
• Locus Standi
• Maintenance Obligations
• Habitatio-servitude

Morganambal Mannaru and another v Robert MacLennan-Smith and others (271/2021)

Morganambal Mannaru and another v Robert MacLennan-Smith and others (271/2021) [2022] ZASCA 137; 2023 (2) SA 150 (SCA) (24 October 2022)

Court

Supreme Court of Appeal

Case number

271/2021

Judges

Van der Merwe, Mothle, Mabindla-Boqwana, Molefe, Masipa

The Supreme Court of Appeal held that the right of way servitude must be exercised in accordance with the civiliter modo principle, requiring a reasonable balancing of the rights of the dominant and servient owners. The erection of a gate across the servitude road, in the absence of an agreement to the contrary, is permissible provided it does not unreasonably interfere with the servient owner's rights. The high court correctly weighed the security concerns of the respondents against the appellants' access rights, ensuring that the appellants retained reasonable access to the servitude area.…

Source excerpt

• Servitude Right Of Way
• Civiliter Modo
• Gate Erection On Servitude
• Balancing Of Rights
• Arbitrary Deprivation Of Property
• Registration Of 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

Roux and Others v Groenewald and Others (40691/2018)

Roux and Others v Groenewald and Others (40691/2018) [2019] ZAGPPHC 273 (14 June 2019)

Court

North Gauteng High Court, Pretoria

Case number

40691/2018

Judge

Yvan Coertzen

The court found that the oral right of way servitude agreement constituted an alienation of an interest in land as contemplated by section 1(b) of the Alienation of Land Act 68 of 1981. To be valid and binding, such an agreement must be in writing and signed by the parties. As the alleged servitude was not reduced to writing, it was invalid and unenforceable. The relief sought to declare the oral servitude valid and in force could not be granted, nor could any dependent relief. The court further accepted that the cancellation of the sale agreement and the contingent nature of the right of way…

Source excerpt

• Oral Servitude Agreement
• Alienation Of Land Act
• Non Joinder
• Registration Of Servitude
• Sale Of Land
• Costs Order

Werner v Florauna Kwekery Bk and Others (224/14)

Werner v Florauna Kwekery Bk and Others (224/14) [2015] ZASCA 46; 2016 (2) SA 282 (SCA) (26 March 2015)

Court

Supreme Court of Appeal

Case number

224/14

Judges

Mpati, Majiedt, Pillay, Schoeman, Van Der Merwe

The Supreme Court of Appeal held that the mere depiction of a servitude area on a Surveyor-General's sub-divisional diagram, without registration in the Deeds Office, does not constitute a servitude of right of way in favour of the public. The servitude depicted was intended only for access to envisaged business developments, which did not materialize, and the business rights had lapsed. No conditions were imposed requiring access for the Ozoroa Park residents or the general public. The cancellation of the servitude note on the diagram, while possibly irregular, was not decisive to the outcom…

Source excerpt

• Servitude Of Right Of Way
• Registration Of Servitude
• Deeds Registries Act
• Prescription
• Property Rights
• Subdivision And Development

Mabote Investments (Pty) Ltd v Peens and Others (76036/2013)

Mabote Investments (Pty) Ltd v Peens and Others (76036/2013) [2014] ZAGPPHC 994 (1 December 2014)

Court

North Gauteng High Court, Pretoria

Case number

76036/2013

Judge

Ranchod

The court found that a valid agreement for the registration of a servitude was concluded between the applicant and the first and second respondents, initially orally and subsequently embodied in written powers of attorney and initialled draft notarial deeds. The initialling of the draft notarial deeds constituted sufficient signature and intention to bind. The transaction did not fall within the scope of section 2(1) of the Alienation of Land Act, as it was neither a sale, exchange, nor donation. The servitude was sufficiently described for registration, even though the diagram was not yet at…

Source excerpt

• Registration Of Servitude
• Alienation Of Land Act
• Declaratory Relief
• Mortgage Bond Consent

Florauna Kwekery BK v Werner en Anders (8555/2010)

Florauna Kwekery BK v Werner en Anders (8555/2010) [2013] ZAGPPHC 307 (23 October 2013)

Court

North Gauteng High Court, Pretoria

Case number

8555/2010

Judge

F G Preller

The court held that a right-of-way servitude existed over the property, ordered the land records corrected, and rejected a prescription defence.

• Registration Of Servitude
• Rectification Of Land Registers
• Prescription Act Application
• Costs Order
• Servitude-registration
• Rectification-of-land-registers