South Africa Case Law

Samsodien v Samsodien and Others (9938/2020)

Samsodien v Samsodien and Others (9938/2020) [2020] ZAWCHC 151; 2021 (2) SA 601 (WCC) (29 October 2020)

Court

Western Cape High Court, Cape Town

Case number

9938/2020

Judge

Davis

The court held that section 2(1) of the Immovable Property (Removal or Modification of Restrictions) Act 94 of 1965 does not empower it to remove or modify a lifetime usufruct granted in a will. A usufruct is a personal, limited but real right that forms part of the panoply of ownership rights, and is not a 'restriction' as contemplated by the Act. While the Act may justify modification of restrictions such as those on subdivision, it cannot be used to remove or restrict a usufructuary right expressly granted in the will. The equities favour the applicant, but the law is clear and does not pe…

Source excerpt

• Usufruct
• Removal Of Restrictions
• Immovable Property Act 94 Of 1965
• Partition Transfer
• Testamentary Bequest

Frantrade Nineteen (Pty) Limited and Others Realty Corporation of South Africa Limited and Others (20400/2018)

Frantrade Nineteen (Pty) Limited and Others Realty Corporation of South Africa Limited and Others (20400/2018) [2019] ZAGPJHC 313 (22 February 2019)

Court

South Gauteng High Court, Johannesburg

Case number

20400/2018

Judge

Twala ML

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.

• Restrictive Conditions
• Personal Servitude
• Title Deed Registration
• Locus Standi
• Removal Of Restrictions
• Restrictive-conditions

Nelson Mandela Bay Metropolitan Municipality v Harlech-Jones NO and Others (2243/08)

Nelson Mandela Bay Metropolitan Municipality v Harlech-Jones NO and Others (2243/08) [2010] ZAECPEHC 2 (28 January 2010)

Court

Eastern Cape High Court, Port Elizabeth

Case number

2243/08

Judge

Roberson

The court held that a title-deed restrictive condition limited the property to residential use and interdicted the respondents from operating a restaurant there.

• Restrictive Conditions Of Title
• Rezoning Application
• Praedial Servitude
• Removal Of Restrictions
• Interpretation Of Title Deeds
• Restrictive-conditions-of-title

Administrators of the Estate of the late Samuel Marks, Ex Parte (21453/05)

Administrators of the Estate of the late Samuel Marks, Ex Parte (21453/05) [2005] ZAGPHC 110 (21 October 2005)

Court

High Courts - Gauteng

Case number

21453/05

Judge

J F Mullins

The court found that circumstances materially affecting the value of the property had arisen since the execution of the Will, which were not contemplated or foreseen by Samuel Marks. The farm is no longer viable for farming, brings in negligible income, and is at risk of illegal occupation. Most beneficiaries reside abroad and have no interest in operating the property. The offer from Snowy Owl 90 (Pty) Limited is the highest received and includes a substantial additional contribution for the museum. The penalty clause in the Will does not bar the application, as it is overridden by statute.…

Source excerpt

• Fideicommissum
• Removal Of Restrictions
• Immovable Property Act 94 Of 1965
• Estate Administration