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[2015] ZAKZDHC 39
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Lodetti and Another v Raykov and Another (12285/2013) [2015] ZAKZDHC 39 (15 May 2015)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: 12285/2013
DATE:
15 MAY 2015
In
the matter between:
RICARDO
RENATO
LODETTI
..........................................................................
FIRST
APPLICANT
JESAMAINE
ELOISE
JOOSTE
.....................................................................
SECOND
APPLICANT
And
KRISTIYAN
IVANOV
RAYKOV
.....................................................................
FIRST
RESPONDENT
SHARON
RAYKOV
......................................................................................
SECOND
RESPONDENT
ORDER
Order
granted in terms of paragraphs 1, 2, 3, 4, 7 and 8 of the Notice of
Motion, and set out as follows:
‘
(1)
the respondents are ordered to do all things necessary to remove the
wall obstructing the road servitude situated between the
parties’
premises at 2…. D….. Road, A……. and 25
S…….. C………….,
A……………
(“The servitude”) within ten (10) days of the granting of
this Order.
(2)
In the event of the Respondents (or either of them) failing to comply
with the Order in paragraph 1 above, the Sheriff of the
above
Honourable Court is authorised forthwith to do all things necessary
to give effect to the order in paragraph 1 above.
(3)
The respondents are ordered to deliver two remote controls (‘the
remote controls”) to the electronic gate obstructing
the
servitude (“the gate”) within ten (10) days of the
granting of this order.
(4)
In the event of the respondents (or either of them) failing to comply
with the order in paragraph 3 above, the Sheriff of the
above
Honourable Court is authorised forthwith do all things necessary to
give effect to the order in paragraph 3 above.
(5)
The respondents are interdicted and restrained from erecting or
causing any further obstructions to the servitude.
(6)
The respondents are to pay the costs of this application, jointly
and severally, the one paying the other to be absolved.
JUDGMENT
SISHI
J
Introduction
[1]
This is an application for an order compelling the respondents to
remove a gate and a wall that they have erected or caused
to be
erected, which obstructs a registered servitude in favour of the
applicants’ immovable property over the respondents’

immovable property together with ancillary relief.
[2]
The applicants are co-owners of an immovable property situated at
2……. D…….. Street, A………

(“The Applicants’ property”).
[3]
The respondents are co-owners of an immovable property situated at
2…… S……… C…...
A………
(“The Respondents’ property”) which is next door to
the applicants’ property.
[4]
There is a roadway that runs through the applicants’ property
and alongside the respondents’ property leading to
the main
road, which is a registered servitude in favour of the applicants’
property over the respondents’ property
(“the
servitude”).
[5]
The servitude is registered over both the applicants’ property
and the respondents’ property as well as in a Notarial
Deed of
Servitude.
[6]
Despite the existence of the servitude, the respondents have erected
or caused to be erected a gate (“the gate”)
at the one
end of the servitude and a wall (“the wall”) at the other
end thereby obstructing the servitude without
any lawful right to do
so.
[7]
The respondents refuse to remove the gate and/or the wall despite
numerous requests by the applicants, and accordingly the applicants

require the assistance of this Court in that regard and seek an order
compelling them to do so.
The
issues
[8]
Whether a servitude of right of way has been established by the
applicant.
[9]
Whether the wall and the gate constitute an unlawful interference
with the right of the applicants.
[10]
Whether supervening lack of
utilitas
terminates the servitude.
[11]
Whether the applicants had abandoned the servitude.
[12]
Whether the applicants have satisfied the requirements for the
granting of a final interdict.
Factual
background
[13]
The applicants purchased the said immovable property during the year
2005.  The immovable property has two entrances on
opposite
sides, one off D….. street (“the D……
entrance”) and one off S…… C…….

(“The S…… entrance”).
[14]
Photographs depicting the D…….. entrance are annexed to
the founding affidavit and marked “C” and
“D”
respectively.
[15]
Photographs of the Sherwood entrance are annexed to the founding
affidavit and marked “E”.
[16]
The D……… entrance consists of an extremely steep
and long driveway which is very difficult to use as evidenced
in
photographs “C” and “D”.  Although the
respondents concede that this entrance is steep, they denied
that it
is extremely steep.
[17]
The Sherwood entrance on the other hand is a flat and convenient road
way and, a registered road servitude running along the
respondents’
property and leading to the immovable property (“the
servitude”) as evidenced by annexure “E”.
[18]
As it is clear from annexure “E”, the servitude is a
roadway that runs pass the properties in this photograph and
into the
immovable property.
[19]
Paragraph “C” on page 4 of the applicants’ title
deed evidences the registration of the servitude in favour
of the
immovable property over the applicants’ property as does
paragraph “D” on page 4 of the respondents’
title
deed.
[20]
Paragraph “C” on page 4 of the applicants’ title
deed provides:
‘
With
the benefit of the road servitude, 2 metres wide running parallel to
and along the entire Northern Western boundary of the
remainder of
Lot 2…., A….. Township, commencing from the boundary,
lettered “GC” and terminating at the
boundary letter “FE”
and diagram “E – 2485/1968 over remainder of lot 2…..
of A….. Township
as created in Notarial Deed of Servitude
No.K………….”.’
[21]
Paragraph “D” on page 4 of the respondents’ title
deed provides:
‘
Subject
to road servitude, 2 metres wide running parallel to and along the
entire North Western boundary of the said, the remainder
of Lot 2…….
A……, commencing from the boundary lettered “GC”
and terminating on the boundary
lettered “FE” on diagram
SGD No. 2…………..”.’
[22]
It is also clear that the servitude was created in Notarial deed of
servitude No.K…….. and a copy of the deed
of servitude
is annexed to the founding affidavit as “F”.
[23]
It has been submitted, correctly in my view, that it is clear from
these documents that the respondents’ properties are

accordingly subject to a servitude in favour of the immovable
property.
[24]
The respondents have in fact conceded the existence of such
servitude.
[25]
The applicants have contended that they decided to purchase the
immovable property based on entirely the servitude as they
would then
not have to use the steep D…… entrance as they could
use the Sherwood entrance.  However, as soon
as they moved into
the immovable property, the respondents took issue with them using
the servitude.
[26]
The respondents told them to stop using the servitude and to stay off
their property.  They frequently argued with the
second
respondent on the basis that the road is a registered servitude which
they were entitled to use and in fact needed to use.
[27]
According to the applicants, this created a very unpleasant living
environment for them and after a long period of arguing
with the
respondents they began using the servitude less frequently.
[28]
This was an undesirable situation for the applicants because as
already stated, D………… entrance
is an
extremely steep and long driveway which is difficult to use. However,
according to the applicants, this seemed to be the
better option at
the time than constantly arguing with the respondents.
[29]
The applicants were adamant that at no stage did they abandon their
right to the servitude which in any event is the private
servitude
nor, did they create such an impression.
[30]
The respondent on the other hand alleged that there was a complete
inactivity by the applicants over a period of quite a few
years, the
applicants certainly created an impression that they had abandoned
any right they might have had to the servitude and
accepted that they
would use the other entrance.
[31]
Shortly thereafter, the respondents erected or caused to be erected
an electric gate at the Sherwood entrance, thereby completely

blocking the servitude.  The gate can be seen from photograph
“E” to the founding affidavit which bears number
25, and
being marked “the gate” which was not always there, but
was erected or caused to be erected by the respondents
as stated
above.
[32]
The applicants immediately took issue with the gate and requested the
respondents to either remove the gate or give both the
applicants a
remote control so that they can also have access to the servitude.
[33]
The respondents refused and merely stated that they would open the
gate to allow them access through the servitude when they
needed to
use it.
[34]
The applicants advised the respondents that this was unacceptable as
they had a right to the servitude and they were not entitled
to block
their access to it.  At some stage, they instructed their former
attorneys to deal with the issue.
[35]
According to the applicants, there were some correspondence between
their attorneys at the time but, they could not afford
to litigate on
a full scale at that stage and unfortunately, they were unable to get
the respondents to give them the remote control
to the gate or remove
the gate completely.
[36]
The wall has entirely blocked off the properties access to the
servitude and the respondents advised the applicants that they
would
not be removing the wall despite the existence of the servitude.
[37]
The applicants, in October 2012 moved to another property and during
December of that year, they went on holiday in Australia
and during
this time the respondents took it upon themselves, without the
consent of the applicants to erect a wall at the other
end of the
servitude.
[38]
There is now a gate at the road side of Sherwood entrance of the
servitude and a wall where the servitude ended.
[39]
The applicants are now selling the property and they have a
difficulty in selling, the house has been on the market since January

2013, they alleged that the Estate Agent advised them that the
majority of the prospective purchasers are not interested because
the
servitude is blocked.
[40]
The applicants’ complaints as referred to above have led to the
institution of this application.
The
nature of the servitude
[41]
A servitude may be defined as
‘
a
limited real right that imposes a burden on movable or immovable
property by restricting the rights, powers or liberties of its
owner
in favour of another person (in the case of a personal servitude) or
the owner of another immovable property (in the case
of a praedial
servitude)’.
[1]
[42]
A praedial servitude is defines as
‘
a
limited real right which a person in the capacity as owner of one
tenement (
praedium
dominans
)
holds over another tenement (
praedium
serviens
).The
servitude is incidental to and passes with the ownership of the
dominant land to which it is inseparably attached and burdens
the
servient land irrespective of identity of the owner’.
[2]
[43]
Thus, it can be stated that the servitude is inseparably attached to
the dominant land, passes with ownership on the dominant
land and
burdens the servient land irrespective of the identity of the
owner.
[3]
Disputes
of fact
[44]
In the heads of argument, the respondents contend that there are
material disputes of fact in relation to the feasibility of
utilising
the alternate entrance; whether the applicant were even aware of the
servitude at the time they purchased the property;
whether for the 7
years preceding the institution of this application the applicants
have made use of the alternate entrance rather
than the servitude
entrance, and whether the applicants or their attorney received the
letter from the respondents attorneys dated
21
st
May 2007.
[45]
The applicants have, on the other hand, submitted that there are no
material disputes of facts raised in this matter.
[46]
Even if one accepts for a moment that the disputes of fact are as
referred to by the respondents above, such factual disputes
must, in
accordance with the
Plascon-Evans
rule
[4]
be resolved on the facts
alleged by the respondents.
[47]
It is also settled
law
that ordinary motion proceedings cannot be used to resolve factual
disputes or factual issues because they are not designed
to determine
probabilities.
[5]
[48]
There are certain issues of facts on the affidavits filed, however,
the important relevant facts are for the most part common
cause and
consequently such issues as do exist, do not, in my view, preclude
the Court from coming to a firm conclusion on the
matter.
Whether
a servitude of right of way has been established by the applicants
[49]
The establishment of the servitude as set forth in the deeds of title
referred to above was hardly contested by Mr Skinner
for the
respondents.  The respondents have in the papers also conceded
the existence of the servitude in their relevant properties.
[50]
In my view, a servitude of right of way has been clearly established
by the applicants.
Whether
the wall and the gate constitute an unlawful interference with the
rights of the applicants
[51]
In
Roeloffze
NO and another v Bothma NO and others
[6]
,
a number of cases dealing with the unlawful interference with the
rights of the servitude holder were discussed and analysed,
these
include the following:
[7]
‘
In
the case of
Allen
v Colonial Government
[8]
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.”
The
above passage was quoted with approval by Corbett J in
Stuttaford
v Kruger
,
[9]
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.”
[10]
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.”
The
Court accordingly granted an interdict ordering the owner of the
servient property forthwith to remove the offending gate from
the
right of way.
In
a later case,
Penny
and Another v Brentwood Gardens Body Corporate
,
[11]
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.
[12]
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’
[13]
(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.’
[52]
I agree with Griesel J in
Roeloffze’s
case,
supra
,
that 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.
[53]
The roadway that runs through the applicants’ property and
alongside the respondents’ property leading to the main
road is
a registered servitude in favour of the applicants’ property
over the respondents’ property (“the servitude”).
[54]
The servitude is registered over both the applicants’ property
and the respondents’ property as well as in a Notarial
Deed of
Servitude.  Despite the existence of the servitude, the
respondents have erected or caused to be erected a gate at
one end of
the servitude and a wall at the other end thereby obstructing the
servitude without any lawful right to do so according
to the
applicants.
[55]
It is not in dispute that the applicants have made numerous requests
to the respondents to remove the gate and the wall but
have refused
to do so.
[56]
The applicants have alleged that they decided to purchase the
immovable property based on inter alia, the servitude as they
would
not have to use the steep Dingwall entrance as they could  use
the Sherwood entrance.  This has been denied by
the respondents
in the answering affidavit, and they relied on the hearsay evidence
of their attorneys who they alleged had discussed
the matter with the
Estate Agent who sold the property to the applicants as well as the
managing agent of such firm.
[57]
According to the respondents, they both have indicated that they were
unaware of the existence of the servitude at the time
of the sale.
This is hearsay evidence as it is unconfirmed by the confirmatory
affidavit of these persons.  It can therefore
not be correct
that the applicants were not aware of the existence of the servitude
as the servitude is registered over both the
applicants’
property and the respondents’ property as well as in a Notarial
Deed of Servitude.
[58]
The following facts are furthermore not in dispute between the
parties, that as soon as the applicants moved into the property,
the
respondents took issue with them using the servitude.  The
respondents told them to stop using the servitude and stay
off their
property.  Initially, they argued with the second respondent on
a frequent basis that the roadway was a registered
servitude which
they were entitled to use and in fact needed to use.  This
created a very unpleasant living environment for
the applicants and
after a long period of arguing with respondents they began using the
servitude less frequently.
[59]
According to the common cause facts referred to above, it is the
conduct of the respondents that caused the applicants to use
the
servitude less frequently.
[60]
It can therefore not be correct to suggest that the applicants failed
to utilise the servitude from the time that the gate
was constructed
in about 2005 until 2012.
[61]
In any event, the applicants would not have brought this application
if the servitude was of no use or benefit to them or that
they had
abandoned the servitude.
[62]
It is clear from the affidavits and the correspondence attached
thereto that at some stage, before the gate and the wall were

erected, there had been some negotiations and discussions between the
parties with the view of settling the differences in regard
to this
right of way, that these discussions and negotiations were not
fruitful.  Eventually the applicants launched this
present
application in which they asked for an order, requiring the
respondent to forthwith remove the gate and the wall from the
right
of way.
[63]
Although there is an alternative entrance to the applicants’
property, it has been clearly stated that this entrance
is steep and
this fact has also been conceded to by the respondents.
[64]
Considering all the above, I accordingly hold that the wall and the
gate do constitute an unlawful interference with enjoyment
of rights
of the applicants.
Utilitas
/Utility
[65]
In
De
Kock v Hanel and others
,
[14]
the applicant applied for a declaratory order that a servitude of
right of way recorded in the title deeds of property owned by
first
and second respondents, did not confer any rights of servitude over
his property.  In the alternative, the applicant
sought an order
declaring that the servitude over applicant’s property does not
allow access from first respondent’s
property over applicant’s
property into a road known as Tamarick Slain Constantia. In
De
Kock’s
case, the Court was faced with the argument that once the utility for
which the servitude clearly no longer exist, the servitude
itself
ceases to exist.
[66]
The Court in this case examined the authorities dealing with the
grounds for extinction of a servitude and concluded that the

authorities appear to be unanimous. For example, Wille’s
Principles
of South African Law
8ed at 326 – 327, sets out the grounds for extinction of a
praedial servitudes as a destruction of both the dominant and

servient tenement, merger, or
confusio
,
abandonment of the servitude by the owner of the dominant tenement
and non-exercise by holder of the servitude for an uninterrupted

period of 30 years.  A similar analysis is provided by authors
of the
Law
of South Africa
volume 24, 617 – 621
[15]
where
the authors canvas the issue of
utilitas
as a prerequisite for a servitude, namely that a praedial servitude
must offer some permanent advantage or benefit to the owner
of the
dominant land owner and must not merely serve his personal pleasure
or caprice.  In the
Law
of South Africa
volume 24, 617 – 621, this is known as the requirement of
the
utilitas
or utility.
[67]
The Court stated that it is possible as Counsel for the applicant
urged that by implication, there is a continuing requirement
of
utilitas
;
that is, if the requirement does not continue the servitude
terminates, as its use has ended.  The Court concluded that none

of the authorities provided such a ground but the Court proceeded on
the assumption that there is merit in the proposition.
[68]
There is clearly no authority whether supervening lack of
utilitas
terminates the servitude.
[69]
The Court in
De
Kock’s
case,
concluded that in the light of the discussion by the authorities and
given that the dominant tenement holder claims the existence
of
utility, the Court considered that it was justified to conclude that
there was utility when there is a reasonable claim for
such utility
by the dominant tenement holder.
[16]
[70]
The applicants in this matter have mentioned both in the founding
affidavit and the replying affidavit that they were unable
to utilise
the servitude due to the respondents unlawfully erecting the gate and
the wall and that they did not have funds to litigate.
[71]
The fact that the applicants and the respondents were involved in
litigation is a clear indication that at no stage did the
applicants
abandon their rights to the servitude nor is prescription applicable
to them.
[72]
In the instant matter, there is a reasonable claim for
utilitas
by the applicants being the dominant tenement holders, but the
respondents are unlawfully obstructing the servitude.
[73]
In the circumstances, I cannot find that the servitude has not been
utilised nor can I find that supervening lack of
utilitas
terminated the servitude.
Abandonment
[74]
A private servitude may be lost by abandonment.  But, strict
proof of the intention to abandon it will be required, although
it
may be inferred from the conduct of the owner of the dominant
tenement, provided that such conduct is consistent only with an

intention to abandon the servitude.  Thus, a failure to object
to the erection of a fence or the closure of a road would amount
to
an abandonment of a servitude over the land which has been fenced in
or the road which has been closed only if the owner of
the dominant
tenement would have acquiesced
in such
actions on the part of the servient owner for some very considerable
time.
[75]
In
Joles
Eiendom (Pty) Ltd v Kruger and another
,
[17]
the Court held that the abandonment of a servitude like waver of a
right, is not lightly presumed and must be clearly proved by
the
party relying on such abandonment or waiver.  The Court found
that there were no grounds for expunging the servitude.
[76]
In this case the Court concluded that there were no grounds for
expunging the servitude.  The applicants have pointed
out,
correctly in my view, that the aforementioned case referred to by the
respondents is not only distinguishable as the owner
of the dominant
tenement in that case erected the wall but in any event it was still
held that no such abandonment took place.
[77]
The aforementioned case of
Joles
Eiendom (Pty) Ltd v Kruger
and
another
[18]
was reversed on appeal in
Kruger
v Joles Eiendom (Pty) Ltd
and
another
.
[19]
The Court found that the trial Judge was justified in holding that
the plaintiff had discharged the onus of establishing
that he had
acquired ownership of the extended passage by prescription.
[78]
In the present matter, the evidence on the affidavits, does not
establish abandonment or waiver of the servitude on the part
of the
applicants.
[79]
Abandonment of a servitude may be expressed or implied.  An
express abandonment may be effected unilaterally or by agreement.
An
implied abandonment is presumed when the dominant owner acquiesced in
acts repugnant to the servitude on the servient land.
Knowledge
of the dominant owner and in action for a sufficient length of time
is apparently essential.
[20]
[80]
To be enforceable against third parties, abandonment must be
published by cancellation of the registration of the servitude.
[21]
As a general rule, a servitude which has been duly registered against
the title deed of a property cannot be deleted or varied
without the
consent of the owner of the dominant tenement.
[81]
In the circumstances, it follows that there are no grounds for
expunging the servitude in this matter.
Whether
the applicants have satisfied the requirements for the grant of a
final interdict.
[82]
In order to obtain a final interdict the applicants have to show:
[82.1]
A clear right;
[82.2]
An injury actually committed or reasonably apprehended;
[82.3]
That there is no other satisfactory remedy available to the
applicants.
Clear Right
[83]
It is common cause that the servitude is registered in favour of the
applicants’ immovable property and against or over
the
respondents’ immovable property as according to the title deeds
of the properties and the notarial deed mentioned earlier
in this
judgment.
[84]
The servitude still exists on both title deeds and has never been
removed.   There is no doubt that the applicants
have
established a clear right to the servitude.
An injury
actually committed or reasonably apprehended
[85]
The respondents have erected or caused to be erected both the gate
and the wall thereby blocking off the servitude and the
respondents
have refused to remove both the gate and the wall. This has caused
unlawful interference with the exercise of the applicants’

rights. The applicants also have a difficulty in selling the said
immovable property.
[86]
In my view, the second requirement that an injury actually committed
or reasonably apprehended has been satisfied.
Alternative
remedy
[87]
It is clear from the papers that the respondents have refused time
and again to remove the gate and the wall and have in fact
advised
the applicants to instruct attorneys to deal with the issue as they
would not voluntarily remove the gate and the wall.
[88]
In the result, I am satisfied that the applicants have satisfied the
third requirement for a final interdict.
[89]
In the circumstances, the applicants have satisfied the requirements
for the granting of a final interdict.
Costs
[90]
Counsel for the applicant has moved for an order as prayed for in the
notice of motion which includes an order as to costs.
[91]
Counsel for the respondents has moved for the dismissal of the
application with costs.
[92]
It is trite that the question of costs is a matter within the
discretion of the court.
[93]
In the circumstances of this case, there is no reason why the costs
should not follow the result.
[94]
In my view, the applicants have succeeded in establishing an
entitlement for the prayers set out in the Notice of Motion.
Order
[95]
In the result, I grant an order in terms of paragraphs 1, 2, 3, 4, 7
and 8 of the Notice of Motion, set out as follows:
‘
(1)
The respondents are ordered to do all things necessary to remove the
wall obstructing the road servitude situated between the
parties’
premises at 2…… D….. Road, A….. and 2…
S….. C….., A……
(“the servitude”)
within ten (10) days of the granting of this Order.
(2)
In the event of the Respondents (or either of them) failing to comply
with the Order in paragraph 1 above, the Sheriff of the
above
Honourable Court is authorised forthwith to do all things necessary
to give effect to the order in paragraph 1 above.
(3)
The respondents are ordered to deliver two remote controls (‘the
remote controls”) to the electronic gate obstructing
the
servitude (“the gate”) within ten (10) days of the
granting of this order.
(4)
In the event of the respondents (or either of them) failing to
`comply with the order in paragraph 3 above, the Sheriff of the
above
Honourable Court is authorised forthwith do all things necessary to
give effect to the order in paragraph 3 above.
(5)
The respondents are interdicted and restrained from erecting or
causing any further obstructions to the servitude.
(6)
The respondents are to pay the costs of this application, jointly and
severally, the one paying the other to be absolved.’
SISHI
J
REPRESENTATION
Date
of Judgment : 15 May 2015
Applicant’s
Counsel : G H THOMAS
Instructed
by : AMC HUNTER INC.
66
Lilian Ngoyi Road
Morningside,
Durban
P
O Box 50641, MUSGRAVE,4062
Tel
No.: 031 309 5483
Fax
No.: 031 309 7063
DX
274, DURBAN
(Ref:
LIA CHITTENDEN/lod1/01)
Respondent’s
Counsel : B SKINNER SC
Instructed
by : MEUMANN WHITE
Respondents’
Attorney
2
nd
Floor Wakefield House
150
Steven Dlamini (Essenwood) Road
BEREA,
DURBAN
Ref:
114051/V. GOVENDER/dlc
[1]
CG
Van der Merwe & MJ De Waal (up dated by CG Van der Merwe)
‘Servitudes’ in W Joubert (ed)
LAWSA
2ed
Vol 24 (2010) 540;
Silberberg
& Schoeman
The
Law of Property
,
5ed, (2006) 321-324.
[2]
CG
Van der Merwe & MJ De Waal (up dated by CG Van der Merwe)
‘Servitudes’ in W Joubert (ed)
LAWSA
2ed
Vol 24 (2010) 545;
Silberberg
& Schoeman
The
Law of Property
,
4ed, (year) 298
;
Williers
Principles
of South African Law
9ed, (2007) 593.
[3]
Silberberg
& Schoeman
The
Law of Property
,
5ed, (2006) 298-310; Van der Merwe
Sakereg
(1989) B467-505.
[4]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E – 635C
[5]
See
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA);
2009 (1) SACR 361
;
2009 (4) BCLR 393
;
2008
(1) All SA 197
para 26.
[6]
2007
(2) SA 257
(C).
[7]
Roeloffze
NO and another v Bothma NO and others
2007 (2) SA 257
(C)
para
8.
[8]
(
1907)
24 SC 1
at 8-9.
[9]
1967
(2) SA 166
(C) at 172D-E. (In his judgment Corbett J erroneously
attributed the above
dictum
to Kotze J.)
[10]
At
172 E-G. See also
Neuman
and Another v Lavery
1932 NPD 329
at 334;
[11]
1983
(1) SA 487
(C).
[12]
At
490 C-D
[13]
At
490 H.
[14]
1999
(1) SA 994
(C).
[15]
See
footnote 1.
[16]
At
999 I-J.
[17]
2007
(5) SA 222
(C) para 22.
[18]
supra
[19]
2009
(3) SA 5
(SCA).
[20]
King
v Finegan
1953(3)
SA 412 (C).
[21]
Hawkins
v Munick
1930
(1) Menzi 465 at 466; See also
Ex
parte Halse
1912 CPD 1042
;
Ex
parte Smink
1952 (1) A148 (SWA) and the Deeds Registry Act 47 of 1937 at section
68 (2).