South Africa Case Law

Rabboni Centre Ministries v Multisand (Pty) Ltd and Others (2010/67006)

Rabboni Centre Ministries v Multisand (Pty) Ltd and Others (2010/67006) [2024] ZAGPPHC 427 (3 May 2024)

Court

North Gauteng High Court, Pretoria

Case number

2010/67006

Judge

Labuschagne

The court found that the applicant failed to establish grounds for rescission under Rule 42 or common law. The absence of the City of Tshwane as a party at the time of the original order did not render the order erroneously granted, as the municipality had no legal interest in the declaration of a public road over private property. The road in question was not intended to be municipal infrastructure but a common law servitude for public access. The applicant's reliance on justus error was not supported by the facts, as there was no mistake common to the parties that vitiated true consent. The…

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• Public Road Declaration
• Servitude Of Right Of Way
• Rescission Of Judgment
• Justus Error
• Municipal Infrastructure
• Rule 42 Application

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

Wulffers v Boxer Dale Holdings (Pty) Ltd and Others (1224/2021)

Wulffers v Boxer Dale Holdings (Pty) Ltd and Others (1224/2021) [2022] ZASCA 172 (1 December 2022)

Court

Supreme Court of Appeal

Case number

1224/2021

Judges

Ponnan, Plasket, Mabindla-Boqwana, Nhlangulela, Windell

The Supreme Court of Appeal held that disputed facts about a right-of-way route could not be resolved on affidavit and dismissed the application.

• Servitude Of Right Of Way
• Way Of Necessity
• Motion Proceedings
• Landlocked Property
• Servitude-of-right-of-way
• Way-of-necessity

JJPC Brand Administrators and Another v Lombard and Others (1223/2017)

JJPC Brand Administrators and Another v Lombard and Others (1223/2017) [2019] ZASCA 55 (1 April 2019)

Court

Supreme Court of Appeal

Case number

1223/2017

Judges

Navsa, Tshiqi, Wallis, Van der Merwe, Eksteen

The SCA held that the respondents failed to prove a road was not public and, in any event, could not relocate a prescriptive right of way where the new route prejudiced the dominant owner.

• Servitude Of Right Of Way
• Acquisitive Prescription
• Public Road Status
• Relocation Of Servitude
• Servitude-of-right-of-way
• Acquisitive-prescription

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…

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

Jersey Lane Properties (Pty) Ltd t/a Fairlawn Boutique Hotel & Spa v Hodgson and Another (A5030/11)

Jersey Lane Properties (Pty) Ltd t/a Fairlawn Boutique Hotel & Spa v Hodgson and Another (A5030/11) [2012] ZAGPJHC 86 (7 May 2012)

Court

South Gauteng High Court, Johannesburg

Case number

A5030/11

Judges

FHD Van Oosten, RS Mathopo, EJ Francis

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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• Servitude Of Right Of Way
• Civiliter Modo
• Municipal Building Approval
• Interpretation Of Servitude
• Dispute Of Fact
• Referral For Trial

Wyngaarden and Another v Fernbosch Trading CC (19032/2011)

Wyngaarden and Another v Fernbosch Trading CC (19032/2011) [2012] ZAWCHC 131 (2 February 2012)

Court

Western Cape High Court, Cape Town

Case number

19032/2011

Judge

Veldhuizen

Urgent application for interim access over neighboring land to build a dwelling was dismissed because the applicants lacked supporting facts and had created the necessity themselves.

• Servitude Of Right Of Way
• Way Of Necessity
• Interim Relief
• Property Access
• Servitude-of-right-of-way
• Way-of-necessity

Ethekwini Municipality v Brooks and Another (411/09)

Ethekwini Municipality v Brooks and Another (411/09) [2010] ZASCA 74; 2010 (4) SA 586 (SCA) ; [2010] 4 All SA 164 (SCA) (27 May 2010)

Court

Supreme Court of Appeal

Case number

411/09

Judges

Mpati, Navsa, van heerden, Mhlantla, Griesel

The Supreme Court of Appeal held that the servitude of right of way over Mrs Brooks' property does not constitute a public street as defined in section 1 of the Local Authorities (Natal) Ordinance 25 of 1974. The evidence did not establish that the public had acquired a right to use Nyala Drive, nor was there proof of a formal takeover or vesting by the municipality. The depiction of Nyala Drive on Surveyor-General diagrams merely reflected the servitude and did not convert it into a public street. The rights of use were limited to those in favour of whom the servitude was created, not the ge…

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• Servitude Of Right Of Way
• Definition Of Public Street
• Local Authorities Ordinance
• Ownership And Maintenance Of Roads

Shelldrake Game Range CC and Others v Scottco (Pty) Ltd (33487/2004)

Shelldrake Game Range CC and Others v Scottco (Pty) Ltd (33487/2004) [2007] ZAGPHC 37 (25 April 2007)

Court

High Courts - Gauteng

Case number

33487/2004

Judge

Pretorius

The court found that there was a bona fide, genuine dispute of fact regarding the existence and nature of the right of way over the disputed access road, which could not be resolved on the papers. The applicants were aware of the factual disputes but proceeded by way of application rather than summons. The court held that the matter must be referred to trial, with the notice of motion standing as a simple summons and the notice of intention to oppose as a notice of intention to defend. The applicants were ordered to deliver a declaration within twenty days, after which the rules relating to a…

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• Servitude Of Right Of Way
• Prescription Act
• Public Road Declaration
• Dispute Of Fact
• Costs Award

Sanders N.O. and Another v Edwards N.O. and Others (A 36/2002)

Sanders N.O. and Another v Edwards N.O. and Others (A 36/2002) [2002] ZAWCHC 60; [2003] 1 All SA 108 (C); 2003 (5) SA 8 (C) (7 November 2002)

Court

Western Cape High Court, Cape Town

Case number

A 36/2002

Judges

R.G. Comrie, J.A. Van der Westhuizen

The court held that a way of necessity could be granted for the southern part of a farm despite existing access from the north, because the alternative access was informal and inadequate.

• Servitude Of Right Of Way
• Way Of Necessity
• Landlocked Property
• Agricultural Access
• Servient And Dominant Tenement
• Servitude-of-right-of-way