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South Africa decisions
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Glover v Chelemu and Another (1352/2022) [2024] ZAGPJHC 43 (24 January 2024)
The High Court dismissed an application to register a servitude of right of way over an encroached portion of land, and also dismissed the counter-application.
Xanadu Eco Park Homeowners v Association Madibeng Local Municipality (39712/2021) [2023] ZAGPPHC 614 (28 July 2023)
The High Court granted an urgent interim interdict after finding respondents ignored a prior order and could not unilaterally treat it as moot.
Berzack v Huntrex 277 (Pty) Ltd and Others (210/2021) [2023] ZASCA 17; [2023] 2 All SA 1 (SCA); 2023 (6) SA 120 (SCA) (21 February 2023)
The Supreme Court of Appeal was divided. The majority (Plasket JA and Goosen AJA) held that the servitude registered in favour of the applicant was a personal servitude of usus, not a praedial servitude. The servitude served only the applicant's personal pleasure and did not confer a permanent advantage to the dominant tenement as required for praedial servitudes. The majority found that the utilitas requirement was not met, and the rights created were personal in nature. Section 66 of the Deeds Registries Act prohibits registration of personal servitudes extending beyond the lifetime of the…
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N'Wandlamharhi Communal Property Association and Another v Westcott and Others (401/2021) [2022] ZASCA 129 (3 October 2022)
The Supreme Court of Appeal held that the shareholders agreements did not create servitudes binding successors in title, so the respondents’ access and occupation rights ended on sale.
Double Four Properties (Pty) Ltd v Polokwane Municipality and Another (HCAA21/2021) [2022] ZALMPPHC 52 (11 August 2022)
The court found that Double Four Properties has a prima facie right to a sewer connection, and the municipality's failure to provide such connection resulted in a persistent health hazard and financial loss. The requirements for interim relief were met: there was a well-grounded apprehension of irreparable harm, the balance of convenience favoured Double Four, and no satisfactory alternative remedy existed. The municipality's reliance on procedural requirements did not absolve its constitutional and statutory obligations, especially given the approved building plans and occupation certificate…
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Stoch and Another v Mntambo N.O. and Others (38240/2020) [2022] ZAGPJHC 544 (11 August 2022)
The court found that the applicants failed to establish a right to evict or interdict the respondents from using the garages. The evidence demonstrated a longstanding arrangement, acknowledged by both parties, for the respondents' use of the garages, with proposals to formalize this through servitude registration. However, the agreement remained inchoate, lacking essential terms and formalities required for enforceability. The applicants did not lawfully terminate the arrangement, and their reliance on repudiation was rejected as a ruse to justify termination without reasonable notice or comp…
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Rand Water v Rosslyn Hub Development Company (Pty) Ltd (A175/2020) [2021] ZAGPPHC 836 (24 November 2021)
The court held that Regulation 23(2A) of the Land Survey Act, which states that an approved diagram or general plan 'shall be withdrawn' by the Surveyor General at the written request of the registered owner, is peremptory in its wording. However, where the withdrawal of an approved but unregistered servitude diagram may materially and adversely affect the rights or legitimate expectations of a third party (such as Rand Water), the rules of natural justice and procedural fairness must be observed. The withdrawal of the diagram constitutes administrative action under PAJA, requiring the Survey…
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Seale and Others v Minister of Public Works and Others (899/2019) [2020] ZASCA 130 (15 October 2020)
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…
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Boxerdale Holdings (Pty) Ltd and Others v Wulffers (3543/2019) [2020] ZAECPEHC 36 (29 September 2020)
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.
Wykwet 31 (Pty) Ltd and Others v Rand Water (A392/2018) [2020] ZAGPJHC 292 (10 September 2020)
The respondent failed to establish a clear and enforceable real right of servitude along the south-western boundary of Holding 50. The manuscript amendment to the notarial deed was unilateral, lacked the required consent, was not attested by a notary, and was never registered in the Deeds Office. The servitude as registered existed only along the north-western boundary (line AB), not the south-western boundary (line AD). The respondent's reliance on interpretation of the deed could not cure the absence of statutory compliance and registration. The respondent did not prove a real right enforce…
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