South Africa Case Law

Botha and Another v Die Hoerskool Menlopark and Others (22089/2021)

Botha and Another v Die Hoerskool Menlopark and Others (22089/2021) [2025] ZAGPPHC 194 (22 February 2025)

Court

North Gauteng High Court, Pretoria

Case number

22089/2021

Judge

LG Kilmartin

The Court found that the School's unilateral restriction of access to the servitude tenement constituted partial spoliation, as the applicants were deprived of convenient and unfettered access without consultation or due process. The applicants established a clear right under the registered servitude to extract a specified quantity of water from the borehole and to access the servitude area. The School's safety concerns and statutory obligations justified reasonable access control measures but did not warrant deprivation of the applicants' rights. The municipal bylaws relied upon by the Schoo…

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• Servitude Rights
• Spoliation
• Final Interdict
• School Safety Regulations
• Municipal Water Bylaws
• Interpretation Of Deeds

Metrofibre Networx (Pty) Ltd v Independent Communications Authority of South Africa and Others (2023/044527)

Metrofibre Networx (Pty) Ltd v Independent Communications Authority of South Africa and Others (2023/044527) [2024] ZAGPPHC 919 (11 September 2024)

Court

North Gauteng High Court, Pretoria

Case number

2023/044527

Judge

Brand, AJ

The High Court held that Telkom could complain to ICASA without proving ownership of the ducts, and dismissed Metrofibre’s review of the CCC and ICASA decisions.

• Electronic Communications Facilities Leasing
• Servitude Rights
• Ownership Vs Accession
• Administrative Review Under Paja
• Jurisdiction Of Icasa
• Infrastructure Leasing Regulations

Snowy Owl Properties 284 (Pty) Ltd v Mziki Share Block Limited (886/2021)

Snowy Owl Properties 284 (Pty) Ltd v Mziki Share Block Limited (886/2021) [2023] ZASCA 2 (19 January 2023)

Court

Supreme Court of Appeal

Case number

886/2021

Judges

Zondi, Mothle, Kgoele, Makaula, Windell

The Supreme Court of Appeal held that the arbitration award does not sanction illegal activities, as it pertains to the reinstatement and maintenance of existing servitude roads, not the creation of new roads. The environmental objections raised by the appellant were considered and rejected during arbitration, and the evidence presented before the high court was merely a repetition of arguments already decided. The award is sufficiently clear, referencing documents and inspections attended by both parties, and the appellant is fully aware of the roads and obligations. Maintenance duties under…

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• Servitude Rights
• Arbitration Award Enforcement
• Environmental Authorisation
• Vagueness Of Orders
• Civiliter Modo
• Maintenance Of Roads

Schoeman v Stapelberg (2070/2020)

Schoeman v Stapelberg (2070/2020) [2021] ZAMPMBHC 69 (27 January 2021)

Court

Mbombela High Court, Mpumalanga

Case number

2070/2020

Judge

Greyling-Coetzer

The court found that the applicant was in peaceful and undisturbed possession of water Furrow 'A', boreholes, pipelines, and access roads, and that the respondent's conduct in filling in Furrow 'A', damaging pipelines, and denying access constituted unlawful deprivation. The respondent's denial was not sufficiently detailed or credible to raise a genuine dispute of fact. The mandament van spolie was granted in respect of Furrow 'A' and the boreholes and pipelines, as actual deprivation occurred. For Furrow 'B' and the access roads, only threats of deprivation were established, not actual inte…

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• Mandament Van Spolie
• Interdictory Relief
• Servitude Rights
• Acquisitive Prescription
• Access Rights
• Water Use Rights

Ruckstuhl and Another v Wakenshaw Estate Home Owners Association (6969/2016)

Ruckstuhl and Another v Wakenshaw Estate Home Owners Association (6969/2016) [2020] ZAKZDHC 25; 2021 (1) SA 269 (KZD) (13 July 2020)

Court

Kwazulu-Natal High Court, Durban

Case number

6969/2016

Judge

Olsen

The High Court held that Wakenshaw Manor owners were liable as association members and allowed rectification of title conditions, subject to the Registrar’s opinion.

• Sectional Titles Act
• Rectification Of Deeds
• Home Owners Association
• Servitude Rights
• Levy Liability
• Contract Rectification

McLennan-Smith and Others v Mannaru and Others (10977/2014)

McLennan-Smith and Others v Mannaru and Others (10977/2014) [2020] ZAKZDHC 17; [2020] 3 All SA 814 (KZD) (30 April 2020)

Court

Kwazulu-Natal High Court, Durban

Case number

10977/2014

Judge

D Pillay

The court found that, under the common law, beneficiaries of a servitude cannot unilaterally erect a security gate across a servitude without the owner's consent, as this constitutes an encroachment and imposes a prohibited burden. However, the oral agreement between the parties permitted a temporary gate, and the plaintiffs' security concerns are genuine. The law must balance the plaintiffs' right to security with the defendant's property rights, applying a reasonable use standard. The court recognised the need to develop the common law to accommodate modern security needs, provided such dev…

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• Servitude Rights
• Security Gate Encroachment
• Rectification Of Title Deeds
• Common Law Development
• Constitutional Property Rights

Langebosch (Pty) Ltd v Lubbe and Another (A221/2019)

Langebosch (Pty) Ltd v Lubbe and Another (A221/2019) [2019] ZAWCHC 169 (10 December 2019)

Court

Western Cape High Court, Cape Town

Case number

A221/2019

Judges

O L Rogers, C Fortuin

The High Court held that a fence narrowing a 3-metre servitude road to 3.6 m or less unlawfully interfered with the dominant owner’s servitude rights.

• Servitude Rights
• Interdict
• Interpretation Of Notarial Deed
• Boundary Dispute
• Servitude-rights
• Property-law

Walsh and Another v Rijks Cellar (Pty) Ltd (A305/2017)

Walsh and Another v Rijks Cellar (Pty) Ltd (A305/2017) [2018] ZAWCHC 25 (27 February 2018)

Court

Western Cape High Court, Cape Town

Case number

A305/2017

Judges

Gamble, Tonjeni

The court held that any procedural defect arising from the ex parte interim order was cured when the appellants anticipated the return day and argued the matter on the founding papers. The Magistrate properly exercised discretion regarding urgency, given the ongoing drought and imminent storm. The respondent established possession or quasi-possession of the pipeline, pump, and pump house under both the servitude agreement and the Water Act, entitling it to spoliatory relief. The mandement van spolie is available to protect such rights, and the respondent was unlawfully deprived of access by t…

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• Mandement Van Spolie
• Servitude Rights
• Urgent Application
• Possession
• Water Rights

Jigger Properties CC v Maynard NO and Others (AR395/2015; AR396/2015)

Jigger Properties CC v Maynard NO and Others (AR395/2015; AR396/2015) [2017] ZAKZPHC 9; 2017 (4) SA 569 (KZP) (13 March 2017)

Court

Kwazulu-Natal High Court, Pietermaritzburg

Case number

AR395/2015; AR396/2015

Judges

Jappie JP, Van Zÿl J, Seegobin J

The court found that the respondents' right of access to the underground tanks in the exclusive use area Y8 was based on contractual arrangements with previous owners and not on a servitude or real right. The respondents did not occupy or exercise physical control over the premises; their access was limited and required the appellant's cooperation. The mandament van spolie does not protect mere personal or contractual rights, only rights to use or occupy property or incidents of occupation. Furthermore, a mere threat to deny access does not constitute spoliation; actual and wrongful deprivati…

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• Mandament Van Spolie
• Quasi Possessio
• Servitude Rights
• Sectional Titles Act
• Specific Performance

Coetzee v Cotzee (18681/2015)

Coetzee v Cotzee (18681/2015) [2016] ZAWCHC 115; [2016] 4 All SA 404 (WCC) (8 September 2016)

Court

Western Cape High Court, Cape Town

Case number

18681/2015

Judges

Binns-Ward, Allie, Saldanha

The appeal succeeded because the trial court misdirected itself in law by holding that it was legally impossible to order partition of agricultural land absent ministerial consent. The appellate court found that the Subdivision of Agricultural Land Act does not preclude the court from ordering partition, and ancillary orders can be made to ensure effectiveness, including authorising the Sheriff to act for uncooperative parties. On the facts, evidence showed realistic prospects of obtaining statutory consents for subdivision, and the defendant's proposal for physical partition was feasible. Th…

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• Actio Communi Dividundo
• Partition Of Agricultural Land
• Subdivision Of Agricultural Land Act
• Servitude Rights
• Co-ownership Termination