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[2015] ZASCA 46
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Werner v Florauna Kwekery Bk and Others (224/14) [2015] ZASCA 46; 2016 (2) SA 282 (SCA) (26 March 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 224/14
Reportable
In
the matter between
WILLEM
GERHARDUS
WERNER
..............................................................................
APPELLANT
and
FLORAUNA
KWEKERY
BK
..........................................................................
FIRST
RESPONDENT
REGISTRAR
OF DEEDS,
PRETORIA
.....................................................
SECOND
RESPONDENT
SURVEYOR-GENERAL,
PRETORIA
..........................................................
THIRD
RESPONDENT
JOHANNES
JACOBUS
HORN
..................................................................
FOURTH
RESPONDENT
Neutral
citation:
Werner v Florauna Kwekery
BK
(224/14)
[2015] ZASCA 46
(26 March
2015)
Coram:
Mpati P, Majiedt & Pillay JJA;
Schoeman and Van Der Merwe AJJA
Heard:
10 March 2015
Delivered:
26 March 2015
Summary
:
Servitude – access road – no notarial deed creating
servitude - whether servitude area depicted on Surveyor-General’s
sub-divisional diagram, though not registered in the Deeds Office,
constitutes servitude of right of way in favour of public.
ORDER
On
appeal from:
Gauteng Division, Pretoria
(Preller J sitting as court of first instance):
Florauna
Kwekery BK v Werner en Andere
(8555/2010) [2013] ZAGPPHC 307 (23 October 2013).
1 The appeal is
upheld and the first respondent is ordered to pay the costs of the
appeal.
2 The order of the
court below is set aside and replaced with the following:
‘
1.
Die aansoek word van die hand gewys met koste.
2. Die bevel nisi
gemaak deur hierdie hof op 25 Oktober 2010, meer bepaald paragrawe
1.1 tot 1.4 daarvan, word bekragtig.
3.
Die applikant word gelas om die koste van die teenaansoek te betaal.’
JUDGMENT
Mpati
P (Majiedt and Pillay JJA and Schoeman and Van Der Merwe AJJA
concurring):
[1] The question to
be considered in this appeal is whether a basis exists for the
registration of a servitude of right of way in
favour of the public
over certain fixed property registered in the names of the
appellant’s two minor children. Should the
answer be in the
affirmative a second question arises, namely, whether a defence of
prescription can be invoked by the owners of
the property concerned
and, if so, whether the claim for registration of the servitude has
become prescribed.
[2]
On 10 February 2010 the first respondent brought an application in
the North Gauteng High Court against the appellant, as first
respondent, and the present second, third and fourth respondents,
seeking the following order:
‘
1
Die reg van weg serwituut word bevestig oor
die dienende eiendom, meer volledig beskryf as:
“
Gedeelte
374 (‘n Gedeelte van Gedeelte 91) van die plaas HARTEBEESTHOEK
303, Registrasie Afdeling J.R., Gauteng Provinsie”;
2 Die derde
respondent word gelas om die endossement “
gekanseller”
op Onderverdelings Kaart S.G. No. 1149/1998 te verwyder;
3 Die tweede
respondent word gelas om die serwituut teen die titelakte van die
dienende eiendom, Transportakte T 30319/2006, te
registreer;
4 Die eerste
respondent in sy hoedanigheid as voog van sy twee minderjarige
kinders, word verplig om toe te sien tot die ondertekening
van alle
dokumentasie, ten einde die serwituut oor die dienende eiendom te
registreer; welke serwituut soortgelyk in inhoud is
aan Aanhangsel
“G” tot die applikant se funderende verklaring.
5
Kostes betaalbaar gesamentlik en afsonderlik deur die Eerste en
Vierde Respondente
.
. . . .’
The
fourth respondent, Mr Johannes Horn (Horn), was the previous
registered owner of the property known as Portion 374, a portion
of
Portion 91 of the Farm Hartebeesthoek, 303, Gauteng Province, which
is referred to in paragraph 4 of the order sought as the
servient
property (‘dienende eiendom’). I prefer to refer to it,
for convenience, as ‘the property concerned’
or ‘Portion
374’ and to the farm Hartebeesthoek 303 as ‘the farm’.
[3]
The deponent to the founding affidavit, Mr Marius Van Niekerk Louw
(Louw), lives on Portion 264 of the farm. It is not in dispute
that
Horn’s late father was the owner of Portion 91 of the farm,
while Louw’s late father (Louw senior) owned the adjacent
land
(the Louws’ property) on the western side of Portion 91. The
case relied upon by the first respondent in its founding
affidavit
for the order sought before the court below may be summarised briefly
as follows. The first respondent, represented by
Louw senior, and
Horn were the original developers of their respective properties. For
this purpose both, individually, engaged
the same town developer, Mr
Paul van Wyk (Van Wyk). Permission in respect of each development was
granted during 1996, with certain
conditions. One of the conditions
imposed by the Provincial Authority, according to the founding
affidavit, was that provision
had to be made for an access road from
the development to the provincial road P106-1 between Pretoria and
Brits (the Brits road).
[4]
The registered owner of Portion 374 at that time, so it was alleged
in the founding affidavit, was Horn. It was further alleged
that
according to a sketch plan JR303/92-93-7/95/02 the only permissible
access to the Brits road was through Portion 374. In order
to fulfil
the condition relating to the access road a sub-divisional diagram
S.G. 1149/1998, indicating a servitude area over Portion
374, was
registered in the office of the third respondent, the
Surveyor-General. Horn did not proceed with his planned development,
namely establishing a filling (petrol) station and shopping centre on
Portion 374, but caused a certificate of registration of
title in
respect of the property concerned to be issued in his name.
[1]
It was alleged, however, that the conveyancer had omitted to have the
servitude over it, as indicated on the sub-divisional diagram,
registered in the Deeds Office, but made the following entry on the
back of the cover of the file in the Deeds Office:
‘
Serwituut
op onderverdelingskaart sal geregistreer word by oordrag aan ‘n
3de party. Noteer caveat asb.’
A caveat, number
19943/2003, was accordingly noted on 10 December 2003, which reads:
‘
By
oordrag van bogenoemde eiendom [Portion 374] aan ‘n 3de party
vanaf SGT, moet . . . daar ‘n voorwaarde in T/akte
aangebring
word wat handel oor serwituutnota op LG 1149/98.’
[5]
In 2005 Horn sold Portion 374 to the appellant, who had it registered
in the names of his two minor children, Armand Willem
Werner and Ané
Werner. No servitude was, however, registered over it, although the
caveat was still recorded in the Deeds
Office. It is common cause
that at the time the registration of transfer of ownership was
effected into the names of the appellant’s
minor children a
servitude note on the sub-divisional diagram had been cancelled.
[2]
It was alleged on behalf of the first respondent that a dispute had
developed between the appellant and Louw senior since 2006
relating
to the issue of the registration of the servitude. Apparently, the
Tshwane Metropolitan Council refuses to allow any transfer
of
property in the development (known as Ozoroa Park) before the access
road has been built to completion. Moreover, the appellant
has
threatened to close down the access that has hitherto been enjoyed
from the Ozoroa Park development.
[6]
The appellant opposed the first respondent’s application and
filed, in addition, a counter-application, seeking orders,
inter
alia, prohibiting members of the public, in particular inhabitants of
Ozoroa Park, from entering Portion 374 or from using
any road across
it or from using it as a dumping ground; an order in terms of which
he is allowed to put up a fence around Portion
374 so as to close any
road across it; declaring that no servitude exists over Portion 374;
and an order that any ‘caveat’
in respect of Portion 374
be removed or deleted from the third respondent’s register. The
basis of the appellant’s
opposition to the first respondent’s
application was that: (1) the first respondent did not rely on any
agreement in terms
of which a servitude had been created; (2) a
caveat is merely an internal cautionary note for officials in the
Deeds Office and
does not by itself establish any rights or
obligations on owners of land; and (3) the first respondent did not
rely on prescription
or any other original form of acquisition of
rights for the registration of a servitude.
[7]
On 25 October 2010 a rule nisi was issued in favour of the appellant,
calling upon all interested parties to show cause on or
about 22
March 2011 why the orders sought by the appellant in his
counter-application should not be granted. Despite the bases
of the
appellant’s opposition to the application the court below
(Preller J) dismissed the appellant’s counter-application;
discharged the rule and granted the following order in favour of the
first respondent:
‘
1
. . .
2 Dit word verklaar
dat ‘n serwituut van reg van weg bestaan oor Gedeelte 374 (‘n
gedeelte van Gedeelte 91) van die
plaas Hartebeeshoek 303,
Registrasieafdeling JR, Gauteng Provinsie.
3 Die derde
respondent word gelas om die beweerde deurhaling van die “servitude
note” op diagram S.G. no. 1149/1998
te verwyder en die nota te
herstel.
4 Die tweede
respondent word gelas om die serwituut van reg van weg ten gunste van
die algemene publiek ooreenkomstig aanhangsel
“Y”
hiertoe, aangepas waar nodig, te registreer teen die titelakte,
T30319/06, van die eiendom vermeld in paragraaf
2 hierbo.
5 Die eerste
respondent word gelas om in sy hoedanigheid as voog van sy twee
minderjarige kinders alle dokumente te onderteken en
alle stappe te
neem wat nodig is vir die voormelde registrasie.
6
Die eerste respondent word gelas om in sy hoedanigheid as voog van
die minderjarige eienaars van die dienende eiendom die nodige
stappe
te neem ten einde aan die vereistes van Artikel 80 van die Boedelwet
(Wet 66 van 1965) te voldoen vir sover dit deur die
tweede respondent
vereis word vir doeleindes van die registrasie van die serwituut
vermeld in paragraaf 4 hierbo
.’
The
appellant and fourth respondents were ordered, jointly and severally,
to pay the costs of the application.
[8]
The annexure “Y” referred to in paragraph 4 of the order
is a draft notarial deed of servitude prepared in accordance
with the
terms of the order. The court subsequently dismissed the appellant’s
application for leave to appeal. This appeal
is with the leave of
this court.
[9]
In his answering affidavit the appellant confirmed that his two minor
children took transfer of the property concerned on 16
March 2006. On
18 April 2006 his attorneys, on his instructions, dispatched a letter
to Louw senior in which the latter was advised,
inter alia, that the
appellant intended to develop Portion 374; that owners or occupiers
of plots situated to the north of Portion
374 were making use of an
illegal access over it; that no servitude of right of way was
registered against the property concerned
in favour of the public or
any one of the owners of the plots situated to the north of it; that
as the developer of those plots
he (Louw senior) should instruct the
said owners or occupiers to cease using the access road; and that the
appellant intended to
fence in the property concerned. The appellant
alleged further that during the negotiations that preceded the
purchase of the property
concerned Horn informed him, in the presence
of his wife and brother, that he (Horn) had intended to develop
Portion 374 and to
establish a shopping centre on it, which would
have meant that part of the property would be used for purposes of a
right of way.
He decided, however, not to proceed with the proposed
development.
[10]
The history of the development or subdivision of Portion 91 of the
farm and the acquisition of a certificate of registration
in respect
of Portion 374 is set out in an answering affidavit deposed to by the
Horn, a brief summary of which follows. After
the passing of their
parents in 1992 Horn and his four siblings approached Van Wyk and
asked him to draw up a proposal in terms
of which Portion 91 would be
divided into four portions and to do a cost analysis for the
development or part of it. In April 1994
he requested Van Wyk to
apply, on his behalf, to the relevant authorities for business rights
in respect of a filling station and
a shopping centre to be operated
North-West of Pretoria on Portions 1 and 2 of Portion 91. These two
portions were situated on
either side of the Brits road. The approval
of the application, subject to certain conditions, was communicated
to Van Wyk by letter
from the Western Services Council (Gauteng) –
now Tshwane Metropolitan Council - dated 27 June 1996 (approval
letter).
[11]
With regard to access to the businesses in respect of which approval
had been given, the following is contained in paragraph
9 of the
approval letter:
‘
9.
Die aansoeker moet skriftelik bevestig dat die voorwaardes soos
gestel deur die Gauteng Provinsiale Regering: Departement Openbare
Vervoer en Paaie, in hul brief gestel (verwysingsnommer
HO6-11/1/1/3-303 JR Vol 3), nagekom sal word.
- Al die
toegangspaaie, afleweringsarea en parkeerarea moet geplavei word.
-
Die
op- en aflaai van goedere mag slegs binne die grense van die eiendom
plaasvind.’
[3]
The
letter containing conditions set or imposed by the Gauteng Provincial
Department of Public Transport and Roads, referred to
in the approval
letter, was dated 15 February 1995 and addressed to the senior
executive officer of the Council on Local Management
Affairs,
Pretoria. The letter, the subject of which is recorded in it as
‘VOORGESTELDE KONSOLIDASIE EN ONDERVERDELING VAN
GEDEELTES 92,
93 EN RESTANT VAN GEDEELTE 7 VAN DIE PLAAS HARTEBEESTHOEK 303 JR:
DISTRIK PRETORIA’,
[4]
was in response to an application by the first respondent in which it
sought consent, from the relevant authorities, for the consolidation
and subdivision of the land identified therein. The first two
paragraphs of the letter read:
‘
U
aansoek JR 303/93/-/7 wat by hierdie kantoor ingedien is op 9
Februarie 1995, het betrekking.
Hierdie
Departement kan hierdie aansoek, soos getoon en gewysig op plan JR
303/92-93-7/95/02, steun slegs indien die onderstaande
voorwaardes
streng nagekom en daar in alle opsigte voldoen word aan die
vereistes/voorwaardes hieronder gestel
:’
Condition
3 of the conditions contained in the letter deals with the building
or establishment of access roads to and from the proposed
development
as well as blockades to prevent uncontrolled access to the Brits
road.
[12]
Sub-paragraph 3.5 of condition 3 stipulated that the applicant, or
owner, must, in collaboration with the local authority and
co-users,
plan, design, build and maintain, at own costs, an access road to the
Brits road, which must be to the satisfaction of
the Director
responsible for maintenance in the Department of Public Transport and
Roads. A further condition was that the right
of access (to the Brits
road) would be summarily withdrawn if the access road had not been
built to completion by the time that
any developed area became
occupied.
[5]
(My translation.) These and other conditions, some of which being not
particularly relevant to the issues in this appeal, applied
in
respect of Horn’s application for the business development
referred to above.
[13] It is not in
dispute that Horn did not proceed with his envisaged development.
This was due to his inability to meet the financial
obligations which
would be created as a result of the conditions imposed in respect of
his proposed development. As has been mentioned
above, he caused
Portion 374 of the farm to be registered in his name and a
Certificate of Registered Title T141333/03 was issued
in his favour
on 27 October 2003. The description of the property on the
certificate is:
‘
Gedeelte
374 (‘n gedeelte van Gedeelte 91) van die Plaas HARTEBEESTHOEK
303, REGISTRASIE AFDELING J.R., GAUTENG;
GROOT 1,8248 (EEN
komma AGT TWEE VIER AGT) Hektaar
SOOS aangedui op die
aangehegte Onderverdelingskaart L.G. Nr. 1149/1998 en GEHOU kragtens
Akte van Transport T23173/1993
. . . .’
The
conveyancer, who attended to the registration of transfer of Portion
374 into Horn’s name, was Mr Erwin Fleischhauer (Fleischhauer).
He deposed to an affidavit, which was annexed to the first
respondent’s combined answering and replying affidavit. (The
first respondent’s answering and replying affidavit was in
response to the appellant’s counter-application and answering
affidavit.)
[14]
In his affidavit Fleischhauer stated that as a consequence of the
provisions of Regulation 60(2) of the Regulations promulgated
under
the Deeds Registries Act
[6]
Horn could not have the servitude, as depicted in the
Surveyor-General’s sub-divisional diagram S.G. 1149/1998,
registered
simultaneously with the registration of transfer of
Portion 374. He accordingly personally entered the note relating to
the
caveat
(referred to in para 4 above) on the back of the cover of the file in
the Deeds Office. He did so in his capacity as Horn’s
conveyancer.
[15]
A servitude in favour of the public is constituted by means of a
grant of ownership of land by the state subject to the reservation
of
a so-called public servitude; by registration against the title deed
of privately owned land; by will or legislation.
[7]
Its existence can also be asserted by proving
vetustas
or immemorial user
[8]
,
which does not apply in the instant case. The
onus
of proving entitlement to a servitude over a servient property rests
on the person who asserts its existence.
[9]
It is not in dispute that at the time the appellant purchased the
property concerned, some residents of Ozoroa Park enjoyed access
to
the Brits road through the said property. In his answering affidavit
Horn explained this as follows:
‘
4.18
Tydens die onderverdeling en ontwikkeling in kleiner plotte deur die
Applikant en sy voorganger is ek genader oor ‘n
vergunningspad
oor my eiendom wat net tydens die onderverdeling gerieflik gebruik
sou kon word.’
[10]
He
granted the temporary access sought, which now constitutes the access
road the appellant wishes to close off.
[16]
The first respondent responded in its combined answering and replying
affidavit that the servitude area as shown on the sub-divisional
diagram S.G. 1149/1998 provides access from the road network
(padstelsel) of the development (ontwikkeling) to the Brits road;
that the diagram had been registered in the office of the
Surveyor-General in 1998; and that the servitude should have been
registered
over the property concerned when the Certificate of
Registered Title was issued to Horn. The first respondent also stated
that
the grant of the orders it sought was of importance to it,
because ‘[d]it is egter meer noodsaaklik vir die huidige –
en toekomstige inwoners van die betrokke ontwikkeling, omdat dit
hulle enigste toegang tot die provinsiale pad is’.
[11]
Except for stating that Horn’s version was inaccurate, the
first respondent significantly proffers no version as to how it
came
about that the residents of the Ozoroa Park development obtained
permission to use an access road over the property concerned
to the
Brits road, other than relying on the sub-divisional diagram.
[17]
Mr Alexis Nicolas Myburgh Sandenbergh (Sandenbergh), a practising
professional land surveyor, confirmed in an affidavit which
was
annexed to the first respondent’s combined answering and
replying affidavit, that he surveyed the sub-division of Portion
91
of the farm on the instructions of his client, Horn. He consequently
drafted certain diagrams, one of which being the sub-divisional
diagram depicting the extent of Portion 374 and the servitude area at
issue here. Another diagram depicted a stretch of servitude
road
running south between developed plots situated north-west of Portion
374 (the property concerned) and Portion 91 of the farm;
then turning
left at the north-west corner of Portion 374 and running along its
northern boundary. That servitude road is described
in the notarial
deed of servitude that created it as
‘
’
n
Ewigdurende Serwituut van Reg van Weg, groot 2,1736 (TWEE komma EEN
SEWE DRIE SES) Hektaar aangedui deur die figuur ABCDEFGHJ
op
Serwituutdiagram S.G. 1147/1998’
.
This
appears to be a servitude of right of way created as such by notarial
deed of servitude attested before Fleischhauer on 26
November 2002.
Horn denied any knowledge of this notarial deed – it was
executed not by him but by a Helen Analise Roodt,
purportedly acting
as agent on his behalf and on behalf of Louw senior, who was in turn
representing the Ozoroa Park Homeowners
Association. The notarial
deed was registered on 27 October 2003. The third diagram depicted
the servitude road running along the
northern boundary of Portion
374, linking with the servitude area depicted on sub-divisional
diagram S.G. 1149/1998, which covers
all of 7099 square meters of the
total extent of Portion 374 (being 1,8248 hectares). It should be
mentioned that the southern
boundary of Portion 374 borders on the
Brits road.
[18]
Sandenbergh stated further in his affidavit that he applied, on
behalf of Horn, to the National Department of Agriculture for
the
Minister’s consent for the sub-division of Horn’s land.
Ministerial consent was granted subject, inter alia, to
the
stipulation that, simultaneously with registration of transfer,
written proof must be submitted that there had been compliance
with
the conditions imposed by the Gauteng Provincial Administration.
[19]
What must be clear with regard to Horn’s application for the
sub-division of formerly agricultural land is that if the
sub-division was such that it would not be necessary to build roads
for the provision of access to a national road, then the condition
imposed by the Gauteng Provincial Administration, relating to the
building of roads, would not apply. There is no evidence on the
papers that a road network was necessary in his (Horn’s)
planned development. In the letter of approval (of his application
for business rights) mention is made of all access roads
(toegangspaaie), a delivery area and a parking area, which were all
required
to be paved. Mention is also made of the loading and
off-loading of goods, which should only occur within the precincts of
the
property concerned.
[12]
In my view, the reference in the approval letter to access roads
(toegangspaaie) is clearly a reference to access roads to and
from
the business undertakings in respect of which application had been
made on behalf of Horn and not to access roads in favour
of the
residents of Ozoroa Park to and from the Brits road. There is
accordingly no substance in the submission by counsel for
the first
respondent that the servitude depicted on sub-divisional diagram S.G.
1149/1998 represents the access road to be utilised
by the owners and
occupiers of Ozoroa Park and the general public. The servitude area
would have provided access only to the envisaged
businesses either
from the Brits road or from the other servitude road from the north
of Portion 374.
[20]
Annexure ‘N’ to the founding affidavit, which is referred
to in the conditions imposed by the Provincial Administration,
is a
plan ‘JR 303/92-93-7/95/02’. With reference to the plan,
condition 3.2 stipulates that with the implementation
of the roads
PWV2 and PWV7, access to those planned roads must be obtained through
the planned access and service roads as shown
on it (the plan). In my
view, the plan concerned refers to some future roads still to be
built or extensions to an existing road.
The position or location of
Portion 374 is unascertainable from the plan, which counsel seem to
rely on for his submission that
I have just rejected as being without
substance. Accordingly, no conditions were ever imposed on Horn, in
my view, to provide access
for the Ozoroa Park residents or the
general public to the Brits road. If that were the case it would be
tantamount to an expropriation
of part of Horn’s property
without compensation, in violation of his property rights enshrined
in section 25 of the Constitution.
[21]
In his answering affidavit Horn averred that the servitude was merely
connected to the business rights with which he did not
proceed.
Paragraph 16 of the approval letter reads:
‘
Indien
die regte nie uitgeoefen word binne twee jaar vanaf datum van
goedkeuring nie, of sodanige verlengde tydperk soos deur die
Westelike Gauteng Diensteraad bepaal, sal die voormelde regte
verval.’
There
is no evidence of any extension ever having been requested. Horn
accordingly averred, correctly so in my view, that the business
rights he had obtained had lapsed and so had the condition attached
thereto, of having to provide access (in the form of a servitude)
to
his property where the businesses were to be established. And the
mere fact that a servitude area is depicted on the sub-divisional
diagram of the Surveyor-General relating to Portion 374 does not
convert what has been a temporary access road into a servitude
of
right of way in favour of the public. (
Cf
Ethekwini Municipality v Brooks and
others
2010 (4) SA 586
(SCA) para 32.)
[22]
With regard to the cancellation of the servitude note on
sub-divisional diagram 1149/1998 Horn stated in his affidavit that
this occurred on 23 November 2005 when he visited the office of the
Surveyor-General upon the advice of an official in the Deeds
Registry. He had gone to the Deeds Registry after he had fielded
enquiries and claims that a servitude of right of way existed
over
his property, Portion 374. There he was informed that no servitude
burdened the property concerned and no mention was made
of a
caveat
.
At the office of the Surveyor-General he informed a certain official
that he did not proceed with the business development for
which he
had obtained the necessary consent. The official then deleted the
broken lines depicting the servitude and another deleted
the
servitude note on the diagram.
[23]
In a supplementary affidavit deposed to on 19 February 2011
Sandenbergh testified that on 21 March 2011, following an earlier
meeting with Horn, he dispatched a letter to the latter in which he
confirmed his opinion that the servitude in issue was still
in
operation. He referred, in the letter, to regulation 21(4) of the
Regulations promulgated under
Land Survey Act 8 of 1997
,
[13]
which provides that when a servitude is not registered in the Deeds
Registry but its existence is indicated by a note on a registered
diagram, the note ‘shall not be altered or omitted except as a
result of an order of a competent authority . . . ’.
It appears
therefore that the cancellation of the servitude note on the
sub-divisional diagram may well have been unlawful. It
is, however,
not necessary to say more on this issue.
[24]
The conclusion I have reached in paragraph 21 above renders it
unnecessary for me to consider the submission by counsel for
the
first respondent that the appellant had prior knowledge of the
servitude of right of way over Portion 374. It also renders
unnecessary a consideration of the defence of prescription raised by
the appellant and entitles him, insofar as it may be necessary,
to
the order sought in his counter-application for the removal or
cancellation of the ‘caveat’ or servitude note contained
in sub-divisional diagram S.G. 1149/1998.
[25] In the result
the following order shall issue:
1 The appeal is
upheld and the first respondent is ordered to pay the costs of the
appeal.
2 The order of the
court below is set aside and replaced with the following:
‘
1.
Die aansoek word van die hand gewys met koste.
2. Die bevel nisi
gemaak deur hierdie hof op 25 Oktober 2010, meer bepaald paragrawe
1.1 tot 1.4 daarvan, word bekragtig.
3.
Die applikant word gelas om die koste van die teenaansoek te betaal.’
______________________
L
MPATI
PRESIDENT
APPEARANCES
For
appellant: J G Bergenthuin SC
Instructed
by: Van Zyl Le Roux Inc, Pretoria
McIntyre
& Van Der Post Attorneys, Bloemfontein
For
first respondent: J G Blignaut
Instructed
by: Nöthling Attorneys, Pretoria
De
Villiers Attorneys, Bloemfontein
[1]
The
certificate of registration is dated 27 October 2003.
[2]
The
cancelled servitude note read:
‘
The
figure abcdeBCD represents a Servitude area 7099 square meters in
extent.’ The total extent of Portion 374 is 1,8248
hectares.
[3]
Loosely
translated the paragraph reads: ‘The applicant must confirm in
writing that the conditions imposed/set by the Gauteng
Provincial
Government: Department of Public Transport and Roads, in their
letter (reference number HO6-11/1/1/3-303 JR Vol 3)
will be
fulfilled.
-
All access roads, delivery area and
parking area must be paved.
-
The loading and off-loading of goods may
only occur within the bounds of the property.’
[4]
‘
PROPOSED
CONSOLIDATION AND SUBDIVISION OF PORTIONS 92, 93 AND THE REMAINDER
OF PORTION 7 OF THE FARM HARTEBEESTHOEK 303 JR: DISTRICT
OF
PRETORIA.’
[5]
‘
Die
aansoeker /eienaar moet in samewerking met die plaaslike owerheid en
medegebruikers ‘n toegang tot pad P106-1 (K14)
op eie koste
beplan, ontwerp en tot bevrediging van die Di
r
ekteur:
Instandhouding van die Departement Openbare Vervoer en Paaie, bou en
in stand hou.
.
. .
Die
reg tot toegang sal summier ingetrek word indien die aansluiting nie
gebou en voltooi is teen die tyd dat enige ontwikkeling
in gebruik
geneem word nie.’
[6]
Act
47 of 1937.
[7]
LAWSA,
2 ed, vol 24 para 625. See also the proviso in
s 65(1)
of the
Deeds
Registries Act 47 of 1937
.
[8]
See
De
Beer v Van der Merwe
1923 AD 378
at 386, where Kotze JA expressed the view that ‘[i]f
it can be shown, or does appear how and when a particular work or
construction was originally made, the doctrine of
vetustas
does not apply’.
[9]
Worman
v Hughes & others
1948 (3) SA 495
(A) at 501-2;
Tauber
v Venter
1938 EDL 82
at 87.
[10]
Loosely
translated: ‘During the subdivision and development into
smaller plots by the Applicant [Louw] and his predecessor
I was
approached for a concession (access) road through my property, which
would be used conveniently only during the subdivision.’
[11]
Quoted
statement loosely translated: ‘It is, however, essential for
the current and future residents of the development
concerned,
because it is their only access to the provincial road.’
[12]
See
para 9 of the approval letter quoted in para 11 above.
[13]
The
regulations came into effect on 1 October 1997.