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[2010] ZAWCHC 421
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Pfaiff and Another v Cameron (7142/2010) [2010] ZAWCHC 421 (10 June 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CIRCUIT LOCAL DIVISION, GEORGE)
CASE
NUMBER:7142/2010
DATE:
10 JUNE 2010
In
the matter between:
DAVID
MICHAEL PFAIFF
…....................................................................
1
st
Applicant
JACK
ALWORTH SMITH
…....................................................................
2
nd
Applicant
and
LORNA
FAY CAMERON
…......................................................................
Respondent
JUDGMENT
(Application
for Leave to Appeal)
LOUW,
J
:
This
is an opposed application for leave to appeal against the judgment
and order made by me in this matter on 10 June 2010. The
applicants
were the defendants at the trial. It is trite that the criteria for
leave to appeal are whether there is a reasonable
prospect that
another court will come to a different conclusion and also that the
matter is of substantial importance to applicants
or to both
parties.
The
fact of the matter is that this is a case of substantial importance
to the parties and this application turns on the reasonable
prospect
of another court coming to a different conclusion.
I
have set out in the history of the matter fully in the judgment. Mr
Engelbrecht
,
who appeared for the applicants this morning submitted that the
raising of the area of the right of way on the servient tenement
was
something which was reasonably foreseeable at the time that the
servitude was created in order to gain access to the dominant
tenement. In any event, he contended that if there were an
infringement, monetary compensation should have been ordered. Given
the lie of the land at the time, it was clearly foreseeable that in
order to gain access to the dominant tenement some increase
of the
height of the road would be necessary. This would be determined by
the state of the dominant tenement at the time and
not by the
improvements that were subsequently effected by the applicants on
the dominant tenement. The increase in height beyond
500mm was
necessitated by the improvements on the dominant tenement. This
could have been avoided the applicants planning and
thereafter
carrying out the improvements, bearing in mind that they were not
entitled to raise the servitude road to a higher
level than the
500mm determined by the natural lie of the land. In addition, I
exercised the discretion for the reasons set out
in the judgment,
not order to order that money be paid as compensation for the
infringement.
Mr
Van
der Merwe
opposes
the application on behalf of respondent.
I
am not satisfied that there is a reasonable prospect that another
court will come to a different conclusion or will interfere
with the
exercise of the discretion not to order monetary compensation.
The
APPLICATION
FOR LEAVE TO APPEAL IS REFUSED WITH COSTS.
LOUW, J