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[2020] ZAECPEHC 36
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Boxerdale Holdings (Pty) Ltd and Others v Wulffers (3543/2019) [2020] ZAECPEHC 36 (29 September 2020)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE
NUMBER: 3543/2019
DATE
HEARD: 27/08/2020
DATE
DELIVERED: 29/09/2020
In
the matter between:
BOXERDALE
HOLDINGS (PTY) LTD
FIRST
APPLICANT
HENRY
ANTHONY KLITSIE
SECOND APPLICANT
ANTON
HEINRICH GENADE
THIRD
APPLICANT
and
MARTINA
CHRISTINA CATHERINA WULFFERS
RESPONDENT
JUDGMENT
NAIDU
AJ:-
INTRODUCTION:
[1]
The Applicants have approached the Court for the following relief:
‘
’
PART
A
1.
That this matter be heard on an
urgent basis, in accordance with the provisions of Uniform Rule
6(12), and that the non-compliance
with the ordinary time limits
provided for in the Rules of Court be condoned and abridged
accordingly;
2.
That, a rule nisi do issue
returnable on 28
th
January 2020, calling on the Respondent to show cause why, pending
the final determination of the relief sought in Part B of the
Notice
of Motion, the following interim order should not be made:
2.1
That the Respondent be ordered and
directed to remove, forthwith, certain fencing and boom (‘’the
installations’’)
erected on the Wulffers’ property,
such installations being depicted on the sketch plan ‘’NOM5’’
hereto and on photographs ‘’NOM6-NOM8 hereto; and
2.2
That the Respondent be and is hereby
interdicted and restrained from erecting further fences or booms on
the Wulffers’ property
which would have the effect of
interfering with the First, Second and Third Applicant’s access
to the South South Eastern
portion of the Klitsie property.
2.3
That the costs of Part A relief be
reserved for determination at the hearing of Part B Application.
3.
That paragraphs 2.1 and 2.2 operate
as an interim interdict pendente lite;
4.
That the hearing of Part B of this
application be postponed to a date and time to be arranged in
conjunction with the parties and
the Registrar.
PART B
1.
That a servitude of right of way be
registered over the immovable property owned by the Respondent in
favour of the First, Second
and Third Applicants as depicted on the
sketch map as the line x-y.
2.
That the Respondent pay the costs of
the Application, including the reserved costs of Part A relief, on an
Attorney and Client scale.
3.
Further/Alternative relief.’’
[2]
It is trite that on the 17
th
December 2019, the Applicant obtained relief in terms of
Part A of the Notice of Motion with a
rule
nisi
issued for the 28
th
January 2020, which rule was subsequently further extended to the
10
th
March 2020, the 11
th
June 2020 and finally to the 27
th
August 2020 when the matter was presented before me for a final
determination.
[3]
The Applicant seeks a confirmation of the
rule
nisi
and further for declaratory relief
to wit that the route of the registered servitude of right of way
over the immovable property
owned by the Respondent in favour of the
First, Second and Third Applicant be registered as depicted on the
sketch map marked annexure
‘’NOM10’’ and
indicated as X-Y.
[4]
The Respondent has opposed the relief being sought.
BACKGROUND
[5]
The First Applicant is the owner of portion 159 of the Farm Goed
Geloof in the Registration District Humansdorp, Province of
the
Eastern Cape held under Title Deed T3077/2019.
[6]
The Second Applicant is the owner of the remainder of Portion 133 of
the Farm Goed Geloof 745 in the Registration Division,
Humansdorp,
Province of the Eastern Cape held under Title Deed T46204/2015 CTN
which is a partition of Portion 133 of the aforesaid
Farm. The
partition was registered on the 19
th
August 2015.
[7]
The Third Applicant is Heinrich Anton Genade, the owner of portion 51
of the Farm Goed Geloof 745 in the Registration Division
Humansdorp,
Province of the Eastern Cape held under Title Deed T73910/2007 CTN.
[8]
The Respondent is the owner of Portion 233 of the Farm Goed Geloof in
the Registration Division Humansdorp, Province of the
Eastern Cape
held under Title Deed T46203/2005 CTN which is a partition of Portion
133 of the aforesaid Farm. The partition was
registered on the 19th
August 2015. It is not disputed that prior to the subdivision of
Portion 133 of the Farm Goed Geloof 745,
that such portion was
jointly owned by the Klitsie family and Wulffers family in equal
shares.
[9] It is not disputed
that a general servitude of road is registered over the Respondent’s
property which was registered
in terms of a ‘’
Reciprocal
Praedial Road Servitude’’
, on the 20
th
August 1993. The servitude is cited as follows:
‘
’
Property
Two
shall be subject to a
General Servitude of Road Six (6) meters wide, from
Property
One
to
Property
Three
,
the
route of which is to be agreed upon by the Registered Owners
,
in favor of
Properties Three to
Thirteen
, subject to the terms
and conditions more fully set out in
paragraph 9.’’
[10]
It is further common cause that during the year 2019, the Respondent
caused certain fences and boom gates to be erected and
installed on
her property which the Applicants allege infringed upon their rights
of access to the northern and southern properties.
THE APPLICANTS CASE
[11]
The Applicants submit that a general servitude of road, six meters
wide is registered over the Respondent’s servient
property as
confirmed in the title deed and accordingly the Applicants are
entitled to the use thereof.
[12]
However, the Applicants argue that the registered servitude route of
right of way over the Respondent’s property cannot
be utilized
as such servitudinal route traverses environmentally sensitive
wetlands.
[13]
The Applicants argued further that since the acquisition of the
properties in the 1960’s that there had been an informal
agreement at the time, between the then owners of the properties
being Mr Wulffers Senior and Mr Klitsie Senior to utilize an
alternate route that did not infringe upon the sensitive wetland
area. It is submitted that such route or path has been in existence
since then. Both Wulffers Senior and Klitsie Senior are deceased.
[14] It is common cause
that the informal route enters the Respondent’s property from
the West, splits into a Y junction which
veers into a Northern and
Southern Route which traverses the Second Applicant’s and
Respondent’s properties. A diagram
of the properties is set out
hereunder:
[15]
The Second Applicant seeks no relief against the Respondent in
respect of the Northern Route other than the removal of the
various
installations erected by the Respondent. It is the Southern Route as
marked X-Y on the Applicants annexure ‘’NOM10’’
which forms the central issue of contention between the parties.
[16]
The Applicants submit that it is not disputed that a praedial
servitude is registered over the Respondent’s property.
The
Respondent does not deny this right but contends that the location of
the Southern Route infringes on her right as a property
owner.
[17]
The Applicants and specifically the First and Third Applicants submit
that they together with the Second Applicant wish to
erect a jetty on
the registered river access point as a launch site but it would be
pointless to attempt same if they cannot traverse
the Southern Route.
The Respondent avers that the proposed launch site is situated on
land belonging to one
Eugene Potgieter
and
Terry Ranger
not party to the present proceedings.
THE RESPONDENT’S
CASE
[18]
The Respondent does not deny that the Second Applicant has a right of
way across her property to reach his house, which is
situated on the
Northern Route. She argues at best regarding this Northern Route that
he has an unregistered personal right. She
further submits that the
First Applicant through one Pieter Van Vuuren and the Third Applicant
have failed to establish a right
in traversing her property in
respect of both the Northern and Southern Routes.
[19]
The Respondent argues in respect of the Applicants reliance on the
servitude registered in 1993, that same is unenforceable
as it was a
pre-requite of such registered servitude that the general servitude
of road route had to be consented to by all the
owners as set out in
the ’
Reciprocal Praedial Road
Servitude’’ Deed.
No
consent or agreement was obtained, hence, that no reliance can be
made on such right of servitude. At most the Second Respondent
would
have an unregistered personal right with regard to the Northern Route
over her property to gain access to his home.
[20]
The Respondent submits that had the Second Applicant approached her
for consent to register a servitude of way over her property
in
respect of the Southern Route that she would have granted same. It
was accordingly unnecessary for the Second Applicant to have
approached the Court for such relief.
[21]
The Respondent argues that the erection by her of fences and boom
gates on her property is out of necessity and security concern
and
that she has every right to do so as a property owner. Consequently
the interdictory relief sought by the Applicants in respect
Part A of
the application infringes on her rights as a property owner. The
Respondent argued that she had in the past made arrangements
with the
Second Applicant where a lock and gate system was utilized granting
the Second Applicant access to traverse on her property.
The
Applicants confirm such arrangements and confirm that each Applicant
possessed their own key to gain access.
[22]
Respondent argues further that she has always objected to the path
dissecting her property in the manner it does and prefers
that it be
positioned closer to the wetland. The Respondent avers that the
Second Applicant has failed to make out a case that
the route she
proposes is more onerous than the route marked X-Y.
THE DETERMINABLE
ISSUE:
[23]
Whether the Applicants has satisfied the requirements for a final
interdict;
[24]
Further whether the Applicants have made out a case for the
declaratory relief sought in terms of a servitude of right of way.
AD
DECLARATORY RELIEF
THE LEGAL PRINCIPLES
APPLICABLE:
[25]
It is trite that once a condition or a
servitude is registered either notarial or as a condition of title in
the title deed by the
Registrar of Deeds, it bestows a real right to
the person in whose favour it is registered. Further, it is trite
that a real right
is absolute in the sense that it prevails against
the whole world.
[26]
Silberberg and Schoeman in the Law of Property, 5
th
Edition
on page 51 state the following:
“
The
holder of a servitude such as a right of way in relation to a piece
of land is entitled to enforce such servitude, being a limited
real
right, not only against the original grantor but also, for the
duration of the right, against all successors in title and
creditors,
irrespective of whether they had actual knowledge of the existence of
the servitude.”
ISSUE
OF THE FIRST AND THIRD APPLICANTS RIGHT OF WAY OVER THE RESPONDENT’S
PROPERTY:
[27]
The First and Third Applicants claim of right of way over the
Respondent’s property is based on the registered right
of
servitude registered over the various properties in terms of the
’
Reciprocal Praedial Road
Servitude’’
, registered
against the title deeds of the various properties on the 20
th
August 1993.
[28]
It is quite apparent from the title deed that the route of the
general servitude of road, measuring 6 meters wide was to be
agreed
upon by the various owners cited in such deed. There has been to date
no such agreement.
[29]
The Applicants have relied further on an informal agreement between
the erstwhile owner of the properties dating back to 1968
to try and
enforce a right of way. It is quite apparent that the ’
Reciprocal
Praedial Road Servitude’’
registered in 1993, is in material conflict with the so called
informal agreement as regards the exact route to be traversed over
the property. The Applicants reliance on the informal agreement in
this regard cannot be sustained as the registered servitude
superceded the alleged informal agreement. This presents a problem
for the Applicants as the registered servitude of road, is
determinate upon an agreement being reached by all the respective
property owners as to the route over the properties. It is apposite
that all concerned parties to date have failed to reach accord on the
route.
[30]
It is further submitted by the Respondent that even if the First and
Third Applicants had managed to successfully inveigle
me to conclude
that a servitude of way existed in their favour that it was
undisputed that as the First and Third Applicants had
failed to
utilize the route for their intended purpose, which was allegedly for
access to the river and/or to launch a boat that
the
utilitas
in respect of same had lapsed or it can be construed that same had
indeed been abandoned as the First and Third Respondents had
failed
to exercise such perceived right of access. Having determined that
the First and Third Applicants have failed to establish
a right of
servitude over the Respondent’s property I do not deem it
necessary to make a determination on the issue of
utilitas
.
ISSUE
OF IMPLIED SERVITUDE IN RESPECT OF
THE
SECOND APPLICANT’S RIGHT OF WAY OF THE RESPONDENT’S
PROPERTY
:
[31]
The creation of a right of way servitude by implied consent can be
traced to van Leeuwen’s Commentaries.
[1]
In
Ridden
v Quinn
1909
E.D.S. 373
at 378, the learned Judge President quoted from a passage in van
Leeuwen’s Commentaries which reads as follows:
“
If
a piece of land is divided into two or more portions, the back
portion will retain its right of outlet over the front portion,
even
although nothing was said about this at the time for the partition of
the land cannot impose a servitude upon the neighbours….”
[2]
[32]
In essence, the van Leeuwen principle is to the effect that when a
land-locked tenement (
blocked
land
)
is created by the sub-division of land, a servitude of right of way
is established by implied consent, in favour of any sub-division
that
remains without access to the public road, over any sub-divisions
with access. The van Leeuwen principle was followed in a
number of
decisions such as
Wilhelm
Norton
1935
EDL 143
at
169 and
Beukes
v Crous en ‘n Ander
1975
(4) SA 215
(NC)
220A-H. In
Van
Rensburg v Coetzee
1979
(4) SA 655
(AD)
at 675 B-C,
the
then Appellate Division of the Supreme Court confirmed that the van
Leeuwen principle forms part of South African Law.
[33]
The court concluded in
Van
Rensburg v Coetzee
,
supra,
at 673D – 674B, that the van Leeuwen principle would only apply
to create a right of way based on implied consent in sub-division
cases where such an implied consent ruling makes sense, notably
because the sub-dividing previous owner still owns a portion over
which access is possible for those portions that are land-locked.
Jansen JA made this comment in light of the cautionary
note
sounded by Kennedy R in
Matthews
v Road Board for the District of Richmond and Others
1967
(3) SA 244
(N)
at 247 F-H
where
the court stated as follows:
“
Secondly,
it would seem to me, with respect to the decision in Riddin’s
case, supra, that what van Leeuwen there had to say
is but of small
practical value in a country like South Africa, where vast tracts of
land, as we know, exist for farming purposes,
it would be
impractical, from the distance point of view alone, if any such an
owner sub-divided his land, to compel the owner
of the sub-division
to use the right of way enjoyed by the seller, and none other, when a
closer and more reasonable means of access
is available by the grant
of a way of necessity over a neighbour’s property.”
[34]
The
van Leeuwen principle is a method of establishing a right of way to
gain access to the public road in sub-division cases and
must be
distinguished from the right of way of necessity. The van
Leeuwen principle rests on implied consent whereas the
normal right
of way of necessity derives from the operation of law and has to be
confirmed by court order, if necessary (
Van
Rensburg v Coetzee
,
supra
).
The significant difference in the creation of a right of way by
necessity and a right of way by implied consent is that
the former
can be established over any servient tenement that gives the required
access to the public road and such access is simply
based on
necessity (see,
Van
Rhyn, NNO v Fleurbaix Farm (Pty) Ltd
2013
(5) SA 521(WCC))
, whereas the right of way by implied consent is
restricted to a sub-division that is cut off from access to a public
road whilst
other portions still have access to the public road and
all the sub-divisions still belong to the original sub-dividing owner
(for
a useful summary of the cases and a simplified exposition of the
principles underlying the right of way by implied consent see,
AJ Van
Der Walt,
The
Law of Servitudes
(2016), pages 341-343, and 354-355).
[35]
In
Aventura V Jackson NO & Others
2007 (5) SA 497
(SCA) at 499/500 para
[8].
the Supreme Court
of Appeal stated:
“
A Court may grant
a right of way over the property of a non-consenting owner (subject
to the payment of appropriate compensation),
but only where it is
shown that the right of way is necessary to provide access to a
public road (See: for example,
Van
Rensburg v Coetzee
[3]
)
(and the authorities collected in that judgment) … What
is meant by “necessity” is that the right of
way must be
the only reasonable sufficient means of gaining access to the
land-locked property and not merely a convenient means
of doing so
“
Troutman
NO v Poole
[4]
…”
[36] The Respondent does
not deny that an implied servitude of way comes into existence upon
the sub-division of a property.
[37] It is common cause
that on the 19
th
August 2015, the Second Applicant and
Respondents properties was sub-divided into the remainder of portion
133 of the Farm Goed
Geloof 745 and Portion 233 of the Farm Goed
Geloof, respectively.
[38] It is further common
cause that the Second Respondent’s property is landlocked and
that that this necessitates him having
to traverse the Respondents
property in order to obtain access to his property.
[39] The only issue in
dispute between the Second Applicant and the Respondent would be the
actual route traversed. The Second Applicant
has inveigled me to
declare the route marked X-Y on the diagram to be declared a right of
servitude of way.
[40]
It is trite that the route over which a servitude of way may be
exercised may be defined by the terms of the servitude or it
may be
undefined. If it is undefined, the owner of the dominant land may
choose a particular route, having due regard to the convenient
use of
the servient land. If he or she has chosen a route, he or she may not
change it without the consent of the owner of the
servient land. The
owner of the servient land may, if the route chosen is particularly
onerous to him or her require the owner
of the dominant land to
follow another equally convenient route.
[5]
[41]
The Applicants submit that the Respondent’s proposed route of
access over her property is untenable as the land slopes
towards the
wetland and substantial backfill towards the wetland would be
necessary to make the demarcated route viable. The Applicant
argues
that the proposed route of the Respondent is mostly within ten meters
of the existing route and the actual gain in moving
the road is
minimal.
[42]
The Respondent has not provided any reasons as to why the present
route is onerous and merely submits in retort that the Applicants
have failed to establish why her proposed route should not be
accepted as being less onerous. As set out above, the owner of the
servient land may, if the route chosen is particularly onerous to him
or her require the owner of the dominant land to follow another
equally convenient route.
[6]
Having
regard to such principle it is evident that the Respondent herein has
failed to establish the onerous nature of the present
circumscribed
route. In the absence of same the
status
quo
must remain.
AD
INTERDICTORY RELIEF:
Whether
the boom gate and the erection of fences constitute an unlawful
interference with the rights of the Applicants:
[43] A distinction must
be drawn between the erection of fences and boom gates by the
Respondent in respect of the Northern Route
and those erected in
respect of the Southern Route
[44]‘
In
the case of
Allen
v Colonial Government
,
[7]
Maasdorp J in discussing the question of obstructions to rights of
way observed as follows:
“
The
bare fact that gates were placed across the road is in itself no
denial of right, for Voet 8, 3, 4 says that a gate may be placed
across a servitude road provided it does not hinder the free passage
of the dominant owner.”
[45]The
above passage was quoted with approval by Corbett J in
Stuttaford
v Kruger
[8]
,
who
proceeded as follows:
“
It
does not seem to me, therefore, that the mere placing of a fence and
gate across a right of way of this nature necessarily involves
an
interference with the rights of the servitude owner. Whether a
gate may be placed across a right of way must, in my view,
depend
upon the facts of the case, including the intention of the parties
who created the servitude…In my view a fence and
a gate which
permit proper unrestricted use of the right of way may not in proper
circumstances amount to an interference with
the servitude. The
question is, how do the gate and fence erected in the present case
measure up to the requirements of these
principles.”
[46]In the
Stuttaford
case,
supra
, the former owner of the servient property
erected a fence and a gate across the right of way at the point where
it joined the
‘hard road’. This gate was apparently
erected in order to prevent cattle straying from the servient farm
onto
the ‘hard road’, but it was not locked and,
according to the applicant, did not hamper in any way the enjoyment
of
the right of way. After the respondent became the new owner of the
servient property, however, he – without any prior consultation
with the applicant – caused a fence to be erected across this
gate and a new gate to be erected in a different position.
The
respondent also caused this new gate to be locked and gave a key to
the lock to the applicant. In this regard Corbett
J held as
follows (at 172 H – 173H):
“
As
far as the locking of the gate is concerned it seems to me that there
is no doubt whatever that this is an obvious interference
with the
proper enjoyment by the applicant of his right of way … I can
easily visualise numerous persons other than the
applicant who could
have a perfectly legitimate right to enter the right of way from the
hard road, or to enter the hard road from
the right of way, and the
gross inconvenience to such persons and to the applicant of the gate
being locked is in my view manifest.”
[47] The Court
accordingly granted an interdict ordering the owner of the servient
property forthwith to remove the offending gate
from the right of
way.
[48]
In a later case,
Penny
and Another v Brentwood Gardens Body Corporate
,
[9]
the respondent erected a self-closing and self-locking gate across a
servitude footpath. The respondent body corporate was
adamant
that it did not require the applicants’ consent to do this. It
contended that it was acting within its rights to
protect life and
property, in a situation that had become dangerous because of
vagrants’ using the access way, and that the
locked gate was
not in effect an obstruction for the applicants.
[10]
Van den Heever J rejected these contentions, stating – with
reference to the respondent’s defence that a key to the
lock of
the gate would be handed to the applicants – that, despite the
applicants’ possession of a key, ‘there
can to my mind be
no doubt whatever that the erection of a locked gate is a diminution
of applicant’ rights’
,
[11]
(The
‘applicants’ rights’ contemplated by Van den Heever
J included the rights of other people authorised by the
applicants to
use the right of way.) The respondent was therefore interdicted from
locking the gate in question.’
[49] I agree from the
authorities referred to above, the question of whether or not a
particular gate will unlawfully interfere
with the reasonable use by
the servitude holder of the servitude road in question depends on the
facts of each individual case.
[50]
The Second Applicant submits on behalf of himself and the First and
Third Applicants that the erection and installation and
fences by the
Respondent on her property would deprive them of access to both the
Northern and Southern Routes. In particular the
First and Third
Respondents would be deprived of access to the river as per the
Northern Route, and the Second Applicant would
be deprived of access
to his home. The Respondent submits that there is a lock and key
system in place in order for the Second
Applicant to obtain access to
both his home along the Northern route and along the Southern Route.
This was not denied by the Second
Applicant, and accordingly the
argument that he is being deprived of access to his home cannot be
sustained.
[51]
The Respondent avers that she has not denied the Second Applicant
access to the properties, she has merely installed security
installations for her benefit. She argue that the Second Applicant is
indolent in not wanting to lift the boom or open the gate.
The Second
Applicant does not deny that he is able to access his properties if
he had to lift the boom or unlock the gate.
[52] The requirements for
a final interdict may be set out as follows:
1)
A clear right;
2)
An injury actually committed or reasonably
apprehended;
3)
The
absence of similar or adequate protection by any other remedy.
[12]
[53]
With regards to the first requirement above it is trite that the onus
is on the Applicants to establish on a balance of probabilities
the
facts and evidence which prove a clear and definite right. Which
right must be a legal right.
[13]
It is clear to me having regard to the conspectus of evidence
presented, that the First and Third Applicants have failed to set
out
a satisfactory basis in law in claiming a clear right to traverse the
Respondents property. Reliance on the ’
Reciprocal
Praedial Road Servitude’’,
cannot
be sustained as there clearly has been no agreement as to such right
of way.
[54]
The position of the Second Applicant is somewhat different. The
effect of the subdivision of
the remainder
of portion 133 of the Farm Goed Geloof 745 being his property and
Portion 233 of the Farm Goed Geloof,
being
the Respondent’s property has resulted in his southernmost
property being landlocked. The authorities as elucidated
above
regarding the consequence of a property being landlocked upon
subdivision is quite clear. I am satisfied that the Second
Applicant
has a set out a clear right in this regard.
[55]
In respect of the second requirement, it is evident that the Second
Respondent has not been deprived of access to either his
home on the
Northern Route or to his property to the south. The Second Applicant
and Respondent have been utilizing a lock and
key system in respect
of the installations. The Second Applicant merely opines the
inconvenient nature of the installations to
the exercise of access to
his properties. It is common cause that in the present context the
basic tenet of harm suffered or reasonably
apprehended, would be the
right of access. The Second Applicant has in my view failed to
establish this requirement.
[56]
Having regard to the third requirement in respect of confirming a
final order for interdictory relief, in the absence of actual
harm
suffered or a reasonable apprehension of harm in the present context,
it cannot be said that the Second Applicant has fulfilled
this
requirement.
COSTS:
[57]
Having regard then to the issue of costs,
the
basic rules were stated as follows by the Constitutional Court in
Ferreira
v Levin NO and Others
1996(2)
SA 621 (CC) at 624B-C
,
the
court held
:
‘
The
Supreme Court has, over the years, developed a flexible approach to
costs which proceeds from two basic principles, the first
being that
the award of costs, unless expressly otherwise enacted, is in the
discretion of the presiding judicial officer, and
the second that the
successful party should, as a general rule, have his or her costs.
Even this second principle is subject to
the first. The second
principle is subject to a large number of exceptions where the
successful party is deprived of his or her
costs. Without attempting
either comprehensiveness or complete analytical accuracy, depriving
successful parties of their costs
can depend on circumstances such
as, for example, the conduct of parties, the conduct of their legal
representatives, whether a
party achieves technical success only, the
nature of litigants and the nature of proceedings.’
[58]
In this particular case, both the Applicants and the Respondent have
been successful to a certain degree. After considering
the peculiar
and lamentable circumstances of this matter, I am of the view that
sagacious consideration must be given regarding
the award of costs.
[59]
In the circumstances I make the following order:
a)
The
rule nisi
issued on the 17
th
December 2019 is hereby discharged;
b)
It is ordered that a route of registered
servitude of right of way over
Portion 233
of the Farm Goed Geloof in the Registration Division Humansdorp,
Province of the Eastern Cape held under Title Deed
T46203/2005 CTN
which is a partition of Portion 133 of the aforesaid Farm, be
registered in favour of the remainder of Portion
133 of the
Farm Goed Geloof 745 in the Registration Division, Humansdorp,
Province of the Eastern Cape held under Title Deed T46204/2015
CTN
which is a partition of Portion 133 of the aforesaid Farm, as
depicted on sketch map NOM10 and indicated as X-Y, and
that
such servitude of way is to measure not less than five (5) meters in
width;
c)
Each party to pay their own costs.
__________________________
V NAIDU
ACTING
JUDGE OF THE HIGH COURT
Obo the
Applicants: Adv
Ellis
Instructed by
Greyvensteins,
104 Park Drive, Port Elizabeth
Ref:
Salome
Obo the
Respondent: Adv
P E Jooste
Instructed by
Nel
Mentz Steyn Ellis c/o Jacques Du Preez. 96 Mangold
Street,
Newton Park, Port Elizabeth
Ref:
J Du Preez
[1]
Van
Rensburg v Coetzee 1979(4) SA 655 at Page 658 F-G
[2]
1909
E.D.S. 373
[3]
1979
(4) SA 655 (A).
[4]
1951
(3) SA 200(C)
at 207 (D) – 208 (A)
[5]
CG Van
der Merwe & MJ De Waal (up dated by CG Van der Merwe)
‘Servitudes’ in W Joubert (ed)
LAWSA
2ed
Vol 24 (2010) at 559
[6]
Rubidge
v McCabe & Sons 1913 AD 433
[7]
(1907)
24 SC 1
at 8-9
[8]
1967(2)SA
166 (C) at 172D-E
[9]
1983(1)
SA 487 (c)
[10]
At
490C-D
[11]
Penny
and Another v Brentwood Gardens Body Corporate (supra) at 490H
[12]
Setlogelo
v Setlogelo
1914 AD 221
at 227, National Chemsearch(SA) (Pty) Ltd v
Borrowman 1979(3) SA 1092(T) at 1095D-E
[13]
Lipschitz
v Wattrus NO 1980 (1) SA662(T) at 673D