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2024
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[2024] ZALMPPHC 114
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CZ Holdings Proprietary Limited v Revival Technologies and Academy (4218/2023) [2024] ZALMPPHC 114 (11 September 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
1. REPORTABLE : YES/NO
2. OF INTREST TO THE
JUDGES: YES/NO
3. REVISED
11/9/2024
CASE NO:4218/2023
In the matter between:
CZ
HOLDINGS PROPRIETARY LIMITED
(Registration
Number: 2016/542223/07)
Applicant
And
REVIVAL
TECHNOLOGIES AND ACADEMY
PROFESSIONAL
LIMITED
(Registration
Number: 2013/040624/07)
Respondent
JUDGMENT
GAISA
AJ
INTRODUCTION
[1]
This application brought by CZ Holdings
Proprietary Limited ("the Applicant") against Revival
Technologies and Academy
Professional Limited ("the Respondent")
concerns a servitude dispute over portions of the farm
Zandrivierspoort 851,
Registration Division LS, Limpopo Province.
[2]
The Applicant seeks declaratory and
interdictory relief regarding a registered servitude of right of way
over the Respondent's property,
Portion 30 of the farm
Zandrivierspoort 851. The Applicant owns the adjacent Portion 15 of
the same farm.
[3]
The key issues for determination are:
3.1
whether the servitude in question is valid
and enforceable;
3.2
whether
the
Applicant has established grounds for the declaratory and
interdictory relief sought;
3.3
whether the Respondent's defense of
prescription has merit.
BACKGROUND
[4]
The salient facts are largely common cause:
4.1.
The servitude in question was registered in
1975 by Notarial Deed of Servitude K762/1975S in favour of the
general public over various
portions of the farm Zandrivierspoort
851, including what is now the Respondent's Portion 30.
4.2.
The Applicant purchased Portion 15 in
February 2018, with transfer effected in September 2018. The
Respondent acquired Portion 30
in November 2018.
4.3.
The Applicant contends that the Respondent
is interfering with its rights to use the servitude by erecting
structures on it and
denying access. The Respondent argues that the
servitude has prescribed and is no longer enforceable.
LEGAL FRAMEWORK
[5]
The requirements for final interdictory
relief are well-established:
5.1
A clear right;
5.2
An injury actually committed or reasonably
apprehended; and
5.3
The absence of similar protection by any
other ordinary remedy.
[6]
For declaratory relief under
section
21(1)(c)
of the
Superior Courts Act 10 of 2013
, the court must be
satisfied that the applicant has an interest in an existing, future
or contingent right or obligation, and that
the case is a proper one
for the exercise of the court's discretion.
[7]
Regarding prescription of servitudes,
section 9
of the
Prescription Act 68 of 1969
expressly excludes
public servitudes from the operation of acquisitive prescription.
ANALYSIS
[8]
Validity of the Servitude
8.1
It is common cause that a public servitude
of right of way was validly registered in 1975 over
inter
alia
the Respondent's property. This is
evidenced by the Notarial Deed K762/1975S and the endorsements on the
relevant title deeds.
8.2
The Respondent's argument that the
servitude has prescribed is without merit. As a public servitude, it
is expressly excluded from
acquisitive prescription by
section 9
of
the
Prescription Act. The
passage of time alone cannot extinguish a
public servitude of this nature.
8.3
I therefore find that the servitude remains
valid and enforceable.
[9]
Grounds for Relief
9.1
The Applicant has established a clear right
arising from the registered servitude. As an adjacent landowner, it
has a direct and
substantial interest in the use and enjoyment of
this public right of way.
9.2
There is prima facie evidence of
interference with this right through the erection of structures on
the servitude area and denial
of access. This constitutes an injury
actually committed.
9.3
Given the nature of the dispute over
immovable property rights, interdictory relief is appropriate as
there is no equally effective
ordinary remedy available.
9.4
The requirements for both final
interdictory and declaratory relief have therefore been met.
[10]
Prescription Defence
10.1
As noted above, the Respondent's prescription
argument is fatally flawed.
Public
servitudes
are
not
subject
to
prescription
under South African law. Even if they were
the Respondent has not established the required 30-year period of
uninterrupted adverse
possession, having only acquired the property
in 2018.
10.2 The
prescription defence must therefore fail.
CONCLUSION
[11]
The Applicant has made out a case for the relief sought. The
servitude is valid and enforceable, and the Respondent's conduct
unjustifiably
interferes with the rights conferred by it.
ORDER
In the result, I make the
following order:
1.
It
is
declared
that
a
valid
public
servitude
of
right
of
way
exists
over
Portion
30
of
the
farm
Zandrivierspoort
851,
Registration
Division
LS,Limpopo Province, as described in
Notarial Deed of Servitude K762/1975S.
2.
The Respondent is interdicted from
interfering with the Applicant's and the general public's right of
access over the aforementioned
servitude.
3.
The Respondent is ordered to remove any structures or
obstructions
erected on the servitude
area within 60 days of this order.
4.
The Respondent is to pay the costs of this application on an
attorney and client scale.
N
GAISA
Acting
Judge of the High Court
Limpopo
Division, Polokwane
APPEARANCES
Applicant/Defendant:
Instructed
By:
Email:
For
The Respondent:
EMAIL:
Mr
Smit
Kutullo
Kgafane Attorneys
info@kutullokgafaneattorneys.co.za
Mr
A A Milanzi of A.A Milanzi Attorneys
adammilanzi56@gmail.com
DATE
OF HEARING:
DATE
OF JUDGEMENT:
9
September 2024
11
September 2024
This judgment is
handed down electronically by circulation to the parties’
representatives by email. The date and time for
hand-down of the
judgment is deemed to be 11 SEPTEMBER 2024 at 17:00 PM.