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[2020] ZAGPJHC 177
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McLeroth v Naicker and Others (43885/2018) [2020] ZAGPJHC 177 (11 August 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
Case
No. 43885/2018
In
the matter between:
MCLEROTH,
HEATHER MONICA JOY
APPLICANT
And
NAICKER,
UDESH
FIRST
RESPONDENT
NAIDOO,
AMANTHA
SECOND
RESPONDENT
CITY
OF JOHANNESBURG
THIRD
RESPONDENT
ABSA
BANK LTD
FOURTH
RESPONDENT
NEDBANK
LTD
FIFTH
RESPONDENT
CHARLES
DE ANDRADE
SIXTH
RESPONDENT
JUDGMENT
MILLAR,
A J
1.
The applicant is the registered owner of
Portion 29 of Erf [...] Morningside Extension 98. The first and
second respondents,
who I shall hereafter refer to as “the
respondents” are the joint owners of Portion 28 of the same
Erf.
2.
During 1984 a company by the name of
Merbuild owned and developed Erf [...]. The Erf was sub-divided
by them into 5 portions
– Portions 25, 26, 27, 28 and 29.
The Erf fronts onto Meadowbrook Close in Morningside. Save for
Portion 25,
which has direct access to Meadowbrook Close and is not
affected in any way for such access by its position, all of the other
Portions
rely on a right of way across portions of the other Erven
for access to Meadowbrook Close.
3.
Merbuild developed and sold on the various
Portions completed dwellings. At the time that these dwellings
were completed,
it was contemplated that there would be a “common”
driveway which would provide access for the individual properties
to
Meadowbrook Close. The subdivision of the Erf had provided for
each of Portion 26, 27 and 28 to have a driveway of varying
lengths
to afford access.
4.
It was also contemplated by Merbuild that
all 3 driveways, which run in parallel to each other and are for all
intents and purposes
a single driveway, would afford access to the
owners of all the Erven and to this end, at the time that the
individual portions
were developed and sold, Notarial Servitudes of
Right of Way which would have allowed the owners of all 5 Portions
from time to
time free and unhindered access across the driveway area
of Portions 26, 27 and 28. That this is so is not in dispute
and
in fact the Applicant’s property, although it fronts onto
Meadowbrook Close was constructed in such a manner that access to
both the front door and garages is through what Merbuild had
contemplated of as the “common” driveway area.
5.
For reasons that are unclear, the Notarial
Agreements were not entered into between the respective owners of the
Portions as and
when transfer was taken by them from Merbuild.
6.
It was not suggested that there was no
harmony, at least until the genesis of the present dispute, in
respect of the owners for
the time being of the various portions with
regards to the use of the “common” driveway area.
For reasons not
germaine to the present application, during December
2016, a dispute arose between the applicant as the owner of Portion
29 and
the respondents as the owners of portion 28. In
consequence of that dispute, that respondents commenced the
construction
of a wall which would have had the effect of closing in
Portion 29 and preventing access to the garages and front door of the
dwelling
on that Portion from the common driveway area.
7.
Inasmuch as the applicant, given the
position and construction of her dwelling is to all intents and
purposes wholly dependent on
access to the common driveway area of
Portions 26, 27 and 28, so too are the respondents – they being
wholly dependant on
the driveway area of Portion 27.
8.
In the present application, it is only the
respondents that oppose the registration of a servitude of right of
way in favour of
the owners of all the other Portions. Save for
the owner of Portion 25 who has direct access to Meadowbrook Close
and is
unaffected, the owners of Portions 26 and 27 have consented to
enter into a notarial agreement for and the registration of such
praedial servitude.
9.
In
Johl v Nobre
[1]
the servitude in issue in the present case was described thus:
“
12]
The servitude pertinent to this matter is a praedial servitude which
pertains to two pieces of land that are in close proximity
to, or
next to each other. See LAWSA Vol 24 Second Edition p 456 para 540. A
praedial servitude is established over the servient
property for the
benefit of the dominant property in perpetuity, irrespective of the
identity of the owner. See LAWSA supra p 461
para 545. Both the
dominant and servient owners are entitled to use the servitude area.
The owner of the servient property retains
all the rights flowing
from his or her ownership provided that the exercise of such rights
may not interfere with the rights of
the servitude holder. See
Roeloffze NO and Another v Bothma NO and Others
2007 (2) SA 257
at
266 H – 267 D See also Estcourt Corporation v Chadwick
1925 NPD
239
[13]
The relationship between the dominant and servient owners is governed
by the principle of reasonableness. See Van der Walt
and Pienaar,
Introduction to the Law of Property 4th edition Juta 2004 at 274.
Where there is a conflict of interests, the interests
of the dominant
owner will have precedence over those of the servient owner, subject
to the principle of reasonableness. The holder
of the servitude must
exercise the servitude civiliter modo, that is, in a civilized and
considerate way. In Rabie v De Wit
1946 CPD 346
at 351civiliter modo
conduct was found to be use "in a manner that will cause the
least damage or inconvenience to the servient
property".
(See also Nolan v Barnard
1908 TS 142
at 152 – 4 Texas Co (SA
Ltd v Cape Town Municipality
1926 AD 467
at 475; Kakamas Bestuursraad
v Louw
1960 (2) SA 202
(A); Stuttaford v Kruger
1967 (2) SA 166
(C)
at 172F and Brink v Van Niekerk en 'n Ander 1986 (3) 428 (T) at
434).
”
10.
The applicant argued 3 alternative basis upon which this court should
come to the assistance of the applicant. A finding
in the
affirmative on any one of these basis would be dispositive of the
application.
10.1
Firstly, the applicant has acquired, the entitlement to registration
of the servitude through an acquisitive prescription,
a period of 30
years of undisturbed use by her or her predecessors in title, of the
common driveway and in particular that portion
of the common driveway
which is part of Portion 28.
10.2
Secondly, the applicant is entitled to registration of the servitude
in consequence of the driveway of Portion 28 constituting
a
via
necessitas;
and
10.3
Thirdly, that the unregistered servitude contemplated by Merbuild and
which has been in use from the beginning of the development,
was
readily apparent to the respondents and they should for that reason
it should now be registered.
11.
The applicant also argued that the costs relating to the spoliation
application should be borne by the respondents.
12.
It was argued on behalf of the respondents that the applicant is not
entitled to the registration of the servitude as of right
and on any
of the basis contended for. The respondents are prepared to
accede to the registration of the praedial servitude
sought but only
in respect of the area immediately in front of the garages of Portion
29 and argue that they should be compensated
at a market related
rate. Furthermore, the restrictive condition in the proposed
servitude that reads as follows:
“
7.
The areas encumbered by the servitudes
may be utilized and traversed freely and without let or hindrance and
no structure, wall,
fence or improvement of whatsoever nature may be
erected within such areas or along any of the boundaries thereof.”
should
not in any event be included.
13.
The respondents also argued that they ought not to pay the costs of
the spoliation application.
14.
During the argument, counsel for both parties conceded that the costs
of the spoliation application should be costs in the cause
of this
application and accordingly I need not deal any further with this
aspect. Those costs will follow the result.
15.
The applicant claims that she has acquired the servitude of right of
way in consequence of having exercised such right freely,
voluntarily
and without any let or hinderance for a period of 30 years. The
entitlement to make this claim arises from the
provisions of Section
6 of the Prescription Act 68 of 1969 (“the Act”) which
reads as follows:
“
Subject
to the provisions of this Chapter and of Chapter IV, a person shall
acquire a servitude by prescription if he has openly
and as though he
were entitled to do so, exercised the rights and powers which a
person who has a right to such servitude is entitled
to exercise, for
an uninterrupted period of 30 years or, in the case of a praedial
servitude, for a period which, together with
any periods for which
such rights and powers were so exercised by his predecessors in
title, constitutes an uninterrupted period
of 30 years.”
16.
The Section provides that the period of 30 years in respect of which
the right, in respect of a praedial servitude as is the
case in the
present matter, has been exercised, need not only have been exercised
by the person who now seeks the registration
of the servitude, but
the period is the aggregate period and includes the period for which
it was exercised by any predecessors
in title.
17.
Chronologically, from the time that the subdivisions by Merbuild were
approved to the present, the following occurred:
17.1
10
April 1984
Subdivision
approved.
17.2
21
May 1984
Building
plans approved for Portion 29.
17.3
26
November 1984
Surveyor
General approves subdivisions.
17.4
16
March 1988
First
transfer of Portion 29.
17.5
23
March 1988
First
transfer of Portion 28.
17.6
14
December 1988
First
transfer of Portion 27.
17.7
31
August 1990
First
transfer of Portion 26.
17.8
7
December 1993
Second
transfer of Portion 29 (to applicant).
17.9
18
April 2008
Second
transfer of Portion 28 (to respondents).
17.10
December
2016
Dispute
between applicant and respondents.
18.
During the entire period and from at least 16 March 1988 when the
first transfer of portion 29 took place, the owner for the
time being
– her predecessor from that date and the applicant from 7
December 1993 used the driveway and in particular the
portion of the
driveway falling within portion 28. It was not disputed that this use
was without hindrance and to all intents and
purposes fully in
accordance with the provisions of section 6 of the Prescription Act.
Furthermore, the applicants use was and
will only be for the purpose
of exercising a right of way. The applicant claims no other right or
entitlement whatsoever.
[2]
19.
The respondents were not able to place in issue the applicant’s
entitlement in terms of the Act
[3]
save to argue that the free and unhindered use as though she were the
owner, was in terms of an agreement and for that reason did
not fall
within the Act.
20.
The respondents relied for this argument on a passage in the
applicants founding affidavit – in paragraph 89 where she
stated “
It will be argued, when
this application is heard,
that
it was not necessary for Naicker and Naidoo to have specific
knowledge of the circumstances which gave rise to the original
agreement to allow the reciprocal rights of use over the various
panhandle portions of Portions 26, 27 and 28. It was sufficient
that
they were aware of that arrangement and were perfectly capable of
ascertaining how and why it came about.”
21.
This argument was predicated on the fact that there was indeed an
agreement
[4]
.
It is not in issue that insofar as there was an intention on the part
of Merbuild who had gone so far as to obtain the Surveyor
Generals
approval to register the servitudes, when the first transfers of the
various erven were effected, that these servitudes
were not
registered
[5]
.
22.
Merbuild’s intention cannot be elevated to the status of an
agreement – the erven were transferred at different
times and
the new owners simply used the common driveway access that was there.
Given the manner in which the applicants dwelling
was constructed on
portion 29 – with the garages and front facing onto the common
driveway – it would have been highly
improbable if not absurd
if each owner of portion 29 from the first were to ask whether they
had the right to access the property
from the only place they could,
given the construction. It would have been self-evident.
23.
That this is so would appear from the fact that none of the owners of
portions 26, 27 and 28 Meadowbrook Close have ever taken
issue with
the use of their particular portion of the common driveway by any of
the others
[6]
- even the respondents contented themselves with this state of
affairs until the dispute in December 2016. The owners of portions
26
and 27 are without more prepared to consent to the registration of
the proposed servitude – indicative of what I have
found the
true position to be – particularly since the respondents are in
the same position with regards to their use of
the common driveway
property of portion 27.
24.
Since there was no “agreement” to use the property as
argued by the respondents, it follows that the applicant by
using the
right of way over portion 28 as she (and her predecessor) did, has
acquired a servitude of right of way over the part
of portion 28 that
comprises the “common driveway.”
25.
In view of the conclusion that I have reached that the applicant, as
the owner of portion 29, has acquired a servitude
of right of
way over portion 28, it is not necessary for me to deal with the
alternative claims.
26.
In considering the question of costs I am mindful of the fact that
the respondents, procured building plans and which had been
approved
on 8 February 2016 which allowed the construction of a wall along the
entire length of the servitude used by the applicants.
Tellingly, the
building plans ignore the construction on portion 29 and do not
reflect any right of way in favour of portion 29.
The plans do
however, inexplicably since it is common cause that no servitudes
were registered by Merbuild, reflect an “Access
Servitude”
in favour of portion 28 over portion 27.
27.
The commencement of building and the flaring up of the dispute which
led to the applicants bringing of the spoliation application
seems to
me have been deliberately provoked by the respondents. The parties
being represented by this stage, it is inexplicable
that the
respondents, if they believed that the applicant was not entitled to
use the portion of their property that is part of
the common
driveway, took no further steps to assert their rights. Instead they
respondents concede the registration of a servitude
but seek to
render such servitude nugatory by insisting that clause 7 of the
proposed servitude was removed. The conduct of the
respondents has
done nothing other than to provoke and thereafter prolong the
litigation and to put the applicants to unnecessary
legal costs.
28.
The conduct of the respondents is to be deprecated and it is for this
reason that I intend to make the order for costs that
I do.
29.
In the circumstances it is ordered:
29.1
the First and Second Respondents are
ordered and directed to allow the registration of a servitude of
right of way in perpetuity
over Portion 28 of Erf [...] Morningside
Extension 98 Township, Registration Division I.R, Province of Gauteng
(“Portion
28”) in favour of the owners from time to time
of Portions 26,27 and 29 of the said Erf [...] Morningside Extension
98 Township,
in accordance with Servitude Diagram S.G. No. A7234/84
and in terms of a notarial agreement in accordance with the draft
annexed
hereto as “A”.
29.2
the First and Second Respondents are
ordered and directed, forthwith upon demand, to sign all and any
documents necessary for the
purpose of registering the servitude
referred to in paragraph 1 above including, but not limited to, the
notarial agreement referred
to therein;
29.3
the Fourth and Fifth Respondents are
ordered and directed, forthwith upon demand, to furnish any such
consents as may be necessary
for the purpose of registering the
servitude referred to in paragraph 29.1 above.
29.4
the Sheriff of the above Honourable Court
is ordered, directed and authorised, only in the event that the First
and Second Respondents
fail to comply with the orders in paragraphs
29.1 and 29.2 above, to sign on their behalf all and any documents
required to give
effect to the orders in paragraphs 29.1 and 29.2
above
29.5
the First and Second Respondents, jointly
and severally, the one to pay the other to be absolved, are ordered
and directed to pay,
on the scale as between attorney and client, the
costs of the spoliation application launched by the Applicant under
the above
case number on 9 December 2016; and
29.6
the First and Second Respondents, jointly
and severally, the one to pay the other to be absolved, are ordered
and directed to pay
the costs of this application on the scale as
between attorney and client.
_____________________________
A MILLAR
ACTING JUDGE OF THE
HIGH COURT
GAUTENG LOCAL
DIVISION, JOHANNESBURG
HEARD ON: 3 AUGUST 2020
JUDGMENT DELIVERED ON: 11
AUGUST 2020
(DELIVERED
ELECTRONICALLY BY EMAIL TO THE PARTIES)
COUNSEL FOR THE
APPLICANT: ADV. G PORTEOUS
INSTRUCTED BY: KUILMAN
MUNDELL & ARLOW
REFERENCE:
MS N BULABULA
COUNSEL FOR THE 1
ST
& 2ND RESPONDENT: ADV. AD COLLINGWOOD
INSTRUCTED BY: KIRSHEN
NAIDOO & COMPANY INC
REFERENCE: MR P MALUNGANA
[1]
2012
JDR 0485 (WCC) at paras [12] to [13]
[2]
Johl
v Nobre
supra
at
para15.
[3]
There
was no suggestion in the papers nor was it argued that the running
of prescription in terms of section 6 of the Act had
been
interrupted by the service of any process as required by sections
4(1).
[4]
Malan
v Nabygelegen Estate 1946 (AD) 562 at 574 where Watermeyer CJ held
“
mere
occupation of property
'nec
vi nec clam nec precario
'
for a period of thirty years does not necessary vest in the occupier
a prescriptive title to the
ownership
of the property. In order to create a prescriptive title, such
occupation must be a user adverse to the true owner and
not
occupation by virtue of some contract or legal relationship such as
lease or usufruct which recognises the ownership of another.”
[5]
The
mere fact that the servitudes are reflected on the Surveyor
General’s diagram and have been approved by him do not elevate
these to real rights binding on any party in the absence of the
specific registration of those servitudes – see Werner
v
Florauna Kwekery BK and Others
2016 (2) SA 282
(SCA) at para [21]
and Ethekwini Municipality v Brooks and Others
2010 (4) SA 586
(SCA)
at para [32].
[6]
From
which it may be inferred that all the parties made use of the common
driveway comprised of the property of portions 26, 27
and 28
civiliter
modo
– that is respectfully and with due regard to the rights
of others - see Tshwane City v Link Africa and Others
2015 (6) SA
440
(CC) at para [87].