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Mangena AJ:
[1] Applicants seek leave to appeal a judgment and orders made on the 13 May
2026. It is submitted on behalf of the applicants that the court committed a
misdirection when it impermissibly cured a defect in the respondent's case
through an informal inquiry as to the depth of the pipe and the feasibility of its
relocation.
[2] It was further argued on behalf of the applicants that the court failed to apply
trite legal principles regarding servitudes, in particular that an unregistered
servitude does not bind subsequent purchasers. Reliance for this contention was
placed on Vestine Eshowe (Pty) Ltd v Town Council of the Borough of
Eshowe, 1978 (3) SA 546 (N).
[3] It was further argued that the applicants do not have a responsibility to
maintain, repair or relocate the pipeline and placing a financial burden on them
goes against established principles that a servitude cannot impose a positive
duty on the servient owner. It was submitted that the court erred by focusing
exclusively on the lawfulness of the initial installation rather than the current
and ongoing burden which limits applicants’ rights as registered owners of the
property. To buttress this point, the applicants argued that "regardless of how
lawfully the pipe was installed in 2004, its continued presence on the property
of a bona fide successor-in title, without a registered real right, constitutes a
continuous and unlawful deprivation of the applicants’ ownership rights". This
is so because when the applicants bought the property, they lacked knowledge
of the unregistered pipeline which unlawfully encroaches on their land.
[4] The respondent opposes the application for leave to appeal and argues that the
applicants seek to argue a different case from the one they argued in the initial
proceedings. It is argued on its behalf that the issue for determination during the
initial proceedings was whether the installation of the municipal bulk sewer
initial proceedings was whether the installation of the municipal bulk sewer
pipeline was unlawful or irregular; if so; then the municipality must remove it
to stop the unlawfulness.
[5] The respondent is correct. The applicants’ case has always been that the
pipeline was unlawfully or irregularly installed, and it should be removed as it
places a burden on the applicants’ rights of ownership. For them to succeed,
they ought to have established the basis upon which it is contended that its
installation was unlawful. They failed to do so and now seek to advance a
separate and distinct argument that the continuous presence of the pipeline is
unlawful as it limits their ownership right. They should not be allowed to do so.
It is impermissible to argue one case in the initial proceedings and then want to
advance a completely different case on appeal.
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FOR THE APPLICANT: ADV DD SWART
INSTRUCTED BY: CRONJE DE WAAL-SKHOSANA INC
MBOMBELA
AND
FOR THE 1ST RESPONDENT: ADV M NGOMANE
INSTRUCTED BY: NCUBE ATTORNEYS INC
DATE HEARD: 10 JULY 2026
DATE OF JUDGMENT: 31 JULY 2026