Janse van Rensburg v Koekemoer 2011 (1) SA 118 (GSJ)

Janse van Rensburg v Koekemoer 2011 (1) SA 118 (GSJ)

Issue: Whether a servitude of right of way can be created by prescription if the use of the right of way is not open and notorious.

Facts:

Janse van Rensburg and Koekemoer were the owners of two neighboring farms. Janse van Rensburg had been using a road across Koekemoer's farm for many years. However, the road was not visible from the main road and it was not used by anyone else.

Koekemoer decided to close the road. Janse van Rensburg applied to the High Court for an order declaring that he had a servitude of right of way over Koekemoer's farm. Janse van Rensburg argued that he had acquired the servitude by prescription.

Key Facts:

• Janse van Rensburg had been using a road across Koekemoer's farm for many years.
• The road was not visible from the main road and it was not used by anyone else.
• Koekemoer decided to close the road.
• Janse van Rensburg applied to the High Court for an order declaring that he had a servitude of right of way over Koekemoer's farm.
• Janse van Rensburg argued that he had acquired the servitude by prescription.

Court's Decision

The High Court held that Janse van Rensburg had not acquired a servitude of right of way over Koekemoer's farm by prescription. The High Court reasoned that the use of the road was not open and notorious. The High Court held that the use of the road must be open and notorious in order for a servitude to be acquired by prescription.

Application of the Law to the Facts of the Case

The High Court applied the law to the facts of the case and found that the use of the road was not open and notorious. The High Court held that the road was not visible from the main road and that it was not used by anyone else. The High Court held that these factors meant that the use of the road was not open and notorious.

Conclusion

The High Court's decision in Janse van Rensburg v Koekemoer 2011 (1) SA 118 (GSJ) 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 open and notorious 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 may be able to prevent the acquisition of a servitude by prescription by challenging the use of the servitude as soon as they become aware of it.