Goliath v Estate Goliath 1937 CPD 312

Goliath v Estate Goliath 1937 CPD 312

Issue: Whether a servitude can be created by prescription if the use of the servitude is not continuous and uninterrupted.

Facts:

Goliath and the Estate Goliath were the owners of two neighboring properties. Goliath had been using a road across the Estate Goliath's property for many years. However, Goliath had not used the road continuously and uninterruptedly. There were periods of time when Goliath did not use the road at all.

The Estate Goliath decided to close the road. Goliath applied to the Cape Provincial Division (CPD) for an order declaring that he had a servitude of right of way over the Estate Goliath's property. Goliath argued that he had acquired the servitude by prescription.

Key Facts:

• Goliath had been using a road across the Estate Goliath's property for many years.
• However, Goliath had not used the road continuously and uninterruptedly.
• The Estate Goliath decided to close the road.
• Goliath applied to the CPD for an order declaring that he had a servitude of right of way over the Estate Goliath's property.
• Goliath argued that he had acquired the servitude by prescription.

Court's Decision

The CPD held that Goliath had not acquired a servitude of right of way over the Estate Goliath's property by prescription. The CPD reasoned that the use of the servitude must be continuous and uninterrupted in order for a servitude to be acquired by prescription. The CPD held that Goliath's use of the road was not continuous and uninterrupted.

Application of the Law to the Facts of the Case

The CPD applied the law to the facts of the case and found that Goliath had not acquired a servitude of right of way over the Estate Goliath's property by prescription. The CPD held that Goliath's use of the road was not continuous and uninterrupted.

Conclusion

The CPD's decision in Goliath v Estate Goliath 1937 CPD 312 is a significant case because it clarifies the law relating to the acquisition of servitudes by prescription. The decision emphasizes that the use of the servitude must be continuous and uninterrupted in order for a servitude to be acquired by prescription.

The decision also provides guidance to landowners on the steps they can take to protect their property from the acquisition of servitudes by prescription. Landowners should be aware that they can prevent the acquisition of a servitude by prescription by challenging the use of the servitude as soon as they become aware of it.