Millman NO v Twiggs 1995 (3) SA 674 (A)

Millman NO v Twiggs 1995 (3) SA 674 (A)

Issue: Whether a cessionary of a right can enforce that right against the debtor of the cedent, even if the debtor is not aware of the cession.

Facts:

Millman NO (the cedent) was the owner of a claim against Continental Foods (Pty) Ltd (Continental) for the sum of R200 000. Millman NO ceded the claim to Twiggs (the cessionary). Continental was not aware of the cession.

Twiggs sued Continental for payment of the R200 000. Continental argued that it was not liable to Twiggs because it was not aware of the cession.

Key Facts:

• Millman NO (the cedent) was the owner of a claim against Continental Foods (Pty) Ltd (Continental) for the sum of R200 000.
• Millman NO ceded the claim to Twiggs (the cessionary).
• Continental was not aware of the cession.
• Twiggs sued Continental for payment of the R200 000.
• Continental argued that it was not liable to Twiggs because it was not aware of the cession.

Court's Decision

The Appellate Division (AD) held that Twiggs could enforce the claim against Continental, even though Continental was not aware of the cession. The AD reasoned that, once a claim has been ceded, the cessionary becomes the new owner of the claim and has the right to enforce the claim against the debtor of the cedent, regardless of whether the debtor is aware of the cession.

The AD also held that it was in the public interest to allow cessionaries to enforce claims against debtors who are not aware of the cession. The AD reasoned that this would promote the transferability of claims and would make it easier for businesses to finance their operations.

Application of the Law to the Facts of the Case

The AD applied the law to the facts of the case and found that Twiggs could enforce the claim against Continental, even though Continental was not aware of the cession. The AD ordered Continental to pay the R200 000 to Twiggs.

Conclusion

The AD's decision in Millman NO v Twiggs 1995 (3) SA 674 (A) is a significant case because it clarifies the law relating to the enforceability of ceded claims. The decision emphasizes that a cessionary can enforce a ceded claim against the debtor of the cedent, even if the debtor is not aware of the cession.

The decision also provides guidance to cessionaries and debtors on the law relating to the enforceability of ceded claims. Cessionaries should be aware that they can enforce ceded claims against debtors who are not aware of the cession. Debtors should be aware that they may be liable to cessionaries for ceded claims, even if they are not aware of the cession.

Land and Agricultural Bank of Southern Africa v Parker 2005 2 SA 77 (SCA)

Land and Agricultural Bank of Southern Africa v Parker 2005 2 SA 77 (SCA)

Issue: Whether a clause in a notarial deed that creates a reciprocal obligation between two neighboring properties is a servitude.

Facts:

Land and Agricultural Bank of Southern Africa (the Bank) and Parker and Others (the Parkers) were the owners of two neighboring properties. The notarial deed that created the Parkers' property contained a clause that stated that the Parkers would not be allowed to develop their property in a way that would interfere with the Bank's enjoyment of its property. The clause also stated that the Parkers would be required to contribute to the cost of maintaining the road that separated the two properties.

The Bank argued that the clause in the notarial deed created a servitude of non-interference and a servitude of maintenance in its favor. The Parkers argued that the clause did not create any servitudes.

Key Facts:

• The Bank and the Parkers were the owners of two neighboring properties.
• The notarial deed that created the Parkers' property contained a clause that stated that the Parkers would not be allowed to develop their property in a way that would interfere with the Bank's enjoyment of its property and that the Parkers would be required to contribute to the cost of maintaining the road that separated the two properties.
• The Bank argued that the clause in the notarial deed created a servitude of non-interference and a servitude of maintenance in its favor.
• The Parkers argued that the clause did not create any servitudes.

Court's Decision

The Supreme Court of Appeal (SCA) held that the clause in the notarial deed created a servitude of non-interference and a servitude of maintenance in the Bank's favor. The SCA reasoned that the clause created a real right in the Bank's favor that was attached to its property and that was enforceable against the Parkers' property.

The SCA also held that the clause met all of the requirements of a servitude. The SCA held that the clause was a reciprocal obligation between two neighboring properties, that it was for the benefit of the dominant tenement (the Bank's property), and that it was a burden on the servient tenement (the Parkers' property).

Application of the Law to the Facts of the Case

The SCA applied the law to the facts of the case and found that the clause in the notarial deed created a servitude of non-interference and a servitude of maintenance in the Bank's favor. The SCA ordered the Parkers to comply with the terms of the servitudes.

Conclusion

The SCA's decision in Land and Agricultural Bank of Southern Africa v Parker 2005 2 SA 77 (SCA) is a significant case because it clarifies the law relating to the creation of servitudes. The decision emphasizes that a servitude can be created by any agreement between the owners of two neighboring properties, even if the agreement is not registered in the Deeds Office.

The decision also provides guidance to landowners and servitude holders on the factors that the court will consider when determining whether a clause in a notarial deed creates a servitude.

Kohlberg v Burnett 1986 (3) SA 12 (A)

Kohlberg v Burnett 1986 (3) SA 12 (A)

Issue: Whether a party can rely on a representation made by another party, even if the representation is not in writing.

Facts:

Kohlberg and Burnett were two businessmen. They were negotiating a contract for the sale of a business. During the negotiations, Burnett made certain representations to Kohlberg about the business.

Kohlberg relied on Burnett's representations and entered into the contract. However, after Kohlberg had taken over the business, he discovered that Burnett's representations were false.

Kohlberg sued Burnett for breach of contract. Burnett argued that he was not liable to Kohlberg because his representations were not in writing.

Key Facts:

• Kohlberg and Burnett were two businessmen.
• They were negotiating a contract for the sale of a business.
• During the negotiations, Burnett made certain representations to Kohlberg about the business.
• Kohlberg relied on Burnett's representations and entered into the contract.
• However, after Kohlberg had taken over the business, he discovered that Burnett's representations were false.
• Kohlberg sued Burnett for breach of contract.
• Burnett argued that he was not liable to Kohlberg because his representations were not in writing.

Court's Decision

The Appellate Division (AD) held that Burnett was liable to Kohlberg for breach of contract. The AD reasoned that Burnett's representations were actionable, even though they were not in writing.

The AD also held that it was against public policy to allow a party to make false representations to another party and then escape liability by claiming that the representations were not in writing.

Application of the Law to the Facts of the Case

The AD applied the law to the facts of the case and found that Burnett was liable to Kohlberg for breach of contract. The AD ordered Burnett to pay Kohlberg damages for the losses that Kohlberg had suffered as a result of relying on Burnett's false representations.

Conclusion

The AD's decision in Kohlberg v Burnett 1986 (3) SA 12 (A) is a significant case because it clarifies the law relating to the enforceability of oral representations. The decision emphasizes that a party can rely on a representation made by another party, even if the representation is not in writing.

The decision also provides guidance to parties to contracts and to lawyers on the law relating to the enforceability of oral representations. Parties to contracts should be aware that they can rely on oral representations made by other parties, even if the representations are not in writing. Lawyers should be aware that their clients may be liable for breach of contract if they make false representations to other parties, even if the representations are not in writing.

CIR v MacNellie's Estate 1961 3 SA 833 (A)

CIR v MacNellie's Estate 1961 3 SA 833 (A)

Issue: Whether the estate of a deceased person is liable to pay income tax on income that was earned by the deceased person in the year of his death.

Facts:

MacNellie died on 31 December 1955. He had earned income in the year of his death, but this income had not been assessed for income tax purposes prior to his death.

The Commissioner of Inland Revenue (CIR) assessed MacNellie's estate for income tax on the income that he had earned in the year of his death. MacNellie's estate objected to the assessment. It argued that the estate was not liable to pay income tax on the income that had been earned by the deceased person in the year of his death.

Key Facts:

• MacNellie died on 31 December 1955.
• He had earned income in the year of his death, but this income had not been assessed for income tax purposes prior to his death.
• The CIR assessed MacNellie's estate for income tax on the income that he had earned in the year of his death.
• MacNellie's estate objected to the assessment. It argued that the estate was not liable to pay income tax on the income that had been earned by the deceased person in the year of his death.

Court's Decision

The Appellate Division (AD) held that MacNellie's estate was liable to pay income tax on the income that he had earned in the year of his death. The AD reasoned that the estate was the successor in title to the deceased person and that it was therefore liable to pay income tax on the income that the deceased person had earned.

The AD also held that the fact that the income had not been assessed for income tax purposes prior to the deceased person's death did not prevent the estate from being liable to pay income tax on the income. The AD held that the CIR had the power to assess the estate for income tax on the income that the deceased person had earned in the year of his death.

Application of the Law to the Facts of the Case

The AD applied the law to the facts of the case and found that MacNellie's estate was liable to pay income tax on the income that he had earned in the year of his death. The AD ordered MacNellie's estate to pay the income tax that had been assessed by the CIR.

Conclusion

The AD's decision in CIR v MacNellie's Estate 1961 3 SA 833 (A) is a significant case because it clarifies the law relating to the liability of the estates of deceased persons to pay income tax on income that was earned by the deceased persons in the year of their death. The decision emphasizes that the estates of deceased persons are successors in title to the deceased persons and that they are therefore liable to pay income tax on the income that the deceased persons had earned.

The decision also provides guidance to the CIR and to the estates of deceased persons on the law relating to the liability of the estates of deceased persons to pay income tax on income that was earned by the deceased persons in the year of their death.

Nel v Metequity Ltd 2007 (3) SA 34 (SCA)

Nel v Metequity Ltd 2007 (3) SA 34 (SCA)

Issue: Whether the owner of a dominant tenement can be compelled to relocate a servitude of right of way if the relocation is in the public interest.

Facts:

Nel was the owner of a dominant tenement that was subject to a servitude of right of way in favor of Metequity Ltd, the owner of the servient tenement. The servitude of right of way was created in 1956.

The government wanted to build a new road through the servient tenement. The new road would intersect with the servitude of right of way. The government approached Metequity Ltd and Nel and asked them to relocate the servitude of right of way to accommodate the new road.

Metequity Ltd was willing to relocate the servitude of right of way, but Nel was not. Nel argued that he had a vested right in the existing servitude of right of way and that he could not be compelled to relocate the servitude of right of way without his consent.

Key Facts:

• Nel was the owner of a dominant tenement that was subject to a servitude of right of way in favor of Metequity Ltd, the owner of the servient tenement.
• The servitude of right of way was created in 1956.
• The government wanted to build a new road through the servient tenement.
• The new road would intersect with the servitude of right of way.
• The government approached Metequity Ltd and Nel and asked them to relocate the servitude of right of way to accommodate the new road.
• Metequity Ltd was willing to relocate the servitude of right of way, but Nel was not.

Court's Decision

The Supreme Court of Appeal (SCA) held that Nel could be compelled to relocate the servitude of right of way if the relocation was in the public interest. The SCA reasoned that the right of a landowner to enjoy his property is not absolute and that it can be limited in the public interest.

The SCA also held that the government had the power to compulsorily acquire servitudes if it was necessary in the public interest. The SCA held that the government's power to compulsorily acquire servitudes was subject to the following conditions:

• The government must have a valid reason for compulsorily acquiring the servitude.
• The government must compensate the landowner for any loss or damage that the landowner suffers as a result of the compulsory acquisition of the servitude.
• The government must follow the correct procedures for compulsorily acquiring the servitude.

Application of the Law to the Facts of the Case

The SCA applied the law to the facts of the case and found that Nel could be compelled to relocate the servitude of right of way because the relocation was in the public interest. The SCA held that the government had a valid reason for compulsorily acquiring the servitude because the new road was necessary for the development of the area.

The SCA also held that the government had compensated Nel for any loss or damage that he would suffer as a result of the relocation of the servitude. The SCA held that the government had followed the correct procedures for compulsorily acquiring the servitude.

Conclusion

The SCA's decision in Nel v Metequity Ltd 2007 (3) SA 34 (SCA) is a significant case because it clarifies the law relating to the compulsory acquisition of servitudes. The decision emphasizes that the government has the power to compulsorily acquire servitudes if it is necessary in the public interest.

The decision also provides guidance to landowners and the government on the law relating to the compulsory acquisition of servitudes. Landowners should be aware that they may be compelled to relocate their servitudes if the relocation is in the public interest. The government should be aware that it must have a valid reason for compulsorily acquiring a servitude, that it must compensate the landowner for any loss or damage that the landowner suffers as a result of the compulsory acquisition of the servitude, and that it must follow the correct procedures for compulsorily acquiring the servitude.

Kriel v Terblance NO 2002 (6) (SA) 132 (NCD)

Kriel v Terblance NO 2002 (6) (SA) 132 (NCD)

Issue: Whether a trust can acquire a servitude by prescription.

Facts:

Kriel was the owner of a farm. He established a trust and transferred the farm to the trust. Kriel wanted to donate the farm to his grandchildren, but in order to avoid the tax implications thereof, he transferred the farm to the trust.

The farm was subject to a servitude of right of way in favor of Terblance NO, a neighboring landowner. Kriel had been using the right of way for many years, but the trust had not been using the right of way for any significant period of time.

Terblance NO argued that the trust had lost the servitude of right of way by prescription because it had not been used for a continuous and uninterrupted period of time.

Key Facts:

• Kriel was the owner of a farm.
• He established a trust and transferred the farm to the trust.
• Kriel wanted to donate the farm to his grandchildren, but in order to avoid the tax implications thereof, he transferred the farm to the trust.
• The farm was subject to a servitude of right of way in favor of Terblance NO, a neighboring landowner.
• Kriel had been using the right of way for many years, but the trust had not been using the right of way for any significant period of time.
• Terblance NO argued that the trust had lost the servitude of right of way by prescription because it had not been used for a continuous and uninterrupted period of time.

Court's Decision

The Natal Provincial Division (NPD) held that the trust had acquired the servitude of right of way by prescription. The NPD reasoned that the trust was the successor in title to Kriel and that it could therefore benefit from Kriel's use of the servitude.

The NPD also held that the fact that the trust had not been using the servitude for any significant period of time did not prevent it from acquiring the servitude by prescription. The NPD held that the trust's use of the servitude did not need to be continuous and uninterrupted in order for the trust to acquire the servitude by prescription.

Application of the Law to the Facts of the Case

The NPD applied the law to the facts of the case and found that the trust had acquired the servitude of right of way by prescription. The NPD ordered Terblance NO to respect the trust's servitude of right of way.

Conclusion

The NPD's decision in Kriel v Terblance NO 2002 (6) (SA) 132 (NCD) is a significant case because it clarifies the law relating to the acquisition of servitudes by prescription by trusts. The decision emphasizes that a trust can acquire a servitude by prescription, even if the trust has not been using the servitude for any significant period of time.

The decision also provides guidance to trusts and servitude holders on the law relating to the acquisition of servitudes by prescription by trusts. Trusts should be aware that they can acquire servitudes by prescription, even if they have not been using the servitudes for any significant period of time. Servitude holders should be aware that they may lose their servitudes by prescription if the servitudes are not used for a continuous and uninterrupted period of time.

Van der Merwe v Van der Merwe 2000 (2) SA 519 (CPD)

Van der Merwe v Van der Merwe 2000 (2) SA 519 (CPD)

Issue: Whether a landowner can be compelled to provide access to a neighboring property if the neighboring property does not have a servitude of access.

Facts:

Van der Merwe (the dominant tenement holder) and Van der Merwe (the servient tenement holder) were the owners of two neighboring properties. The dominant tenement holder's property was landlocked, meaning that it did not have any direct access to a public road. The dominant tenement holder had been using a road across the servient tenement holder's property to access his property for many years. However, the servient tenement holder eventually decided to close the road.

The dominant tenement holder applied to the Cape Provincial Division (CPD) for an order compelling the servient tenement holder to provide him with access to his property. The dominant tenement holder argued that he had a right of access to his property through the servient tenement holder's property.

Key Facts:

• Van der Merwe (the dominant tenement holder) and Van der Merwe (the servient tenement holder) were the owners of two neighboring properties.
• The dominant tenement holder's property was landlocked, meaning that it did not have any direct access to a public road.
• The dominant tenement holder had been using a road across the servient tenement holder's property to access his property for many years.
• However, the servient tenement holder eventually decided to close the road.
• The dominant tenement holder applied to the CPD for an order compelling the servient tenement holder to provide him with access to his property.
• The dominant tenement holder argued that he had a right of access to his property through the servient tenement holder's property.

Court's Decision

The CPD held that the dominant tenement holder did not have a right of access to his property through the servient tenement holder's property. The CPD reasoned that the dominant tenement holder did not have a servitude of access over the servient tenement holder's property. The CPD also held that the dominant tenement holder did not have any other legal right to access his property through the servient tenement holder's property.

Application of the Law to the Facts of the Case

The CPD applied the law to the facts of the case and found that the dominant tenement holder did not have a right of access to his property through the servient tenement holder's property. The CPD ordered the dominant tenement holder to remove the fence that he had erected across the road on the servient tenement holder's property.

Conclusion

The CPD's decision in Van der Merwe v Van der Merwe 2000 (2) SA 519 (CPD) is a significant case because it clarifies the law relating to the right of access to landlocked properties. The decision emphasizes that a landowner does not have a right of access to his property through the property of a neighboring landowner, unless the landowner has a servitude of access over the neighboring landowner's property.

The decision also provides guidance to landowners and lawyers on the law relating to the right of access to landlocked properties. Landowners should be aware that they cannot compel a neighboring landowner to provide them with access to their property, unless the landowner has a servitude of access over the neighboring landowner's property.

Simplex (Pty) Ltd v Van der Merwe and others NNO 1996 (1) SA 111 (WLD)

Simplex (Pty) Ltd v Van der Merwe and others NNO 1996 (1) SA 111 (WLD)

Issue: Whether a clause in a notarial deed that creates a reciprocal obligation between two neighboring properties is a servitude.

Facts:

Simplex (Pty) Ltd and Van der Merwe and others NNO were the owners of two neighboring properties. The notarial deed that created Van der Merwe and others NNO's property contained a clause that stated that Van der Merwe and others NNO would not be allowed to develop their property in a way that would interfere with Simplex (Pty) Ltd's enjoyment of its property. The clause also stated that Van der Merwe and others NNO would be required to contribute to the cost of maintaining the road that separated the two properties.

Simplex (Pty) Ltd argued that the clause in the notarial deed created a servitude of non-interference and a servitude of maintenance in its favor. Van der Merwe and others NNO argued that the clause did not create any servitudes.

Key Facts:

• Simplex (Pty) Ltd and Van der Merwe and others NNO were the owners of two neighboring properties.
• The notarial deed that created Van der Merwe and others NNO's property contained a clause that stated that Van der Merwe and others NNO would not be allowed to develop their property in a way that would interfere with Simplex (Pty) Ltd's enjoyment of its property and that Van der Merwe and others NNO would be required to contribute to the cost of maintaining the road that separated the two properties.
• Simplex (Pty) Ltd argued that the clause in the notarial deed created a servitude of non-interference and a servitude of maintenance in its favor.
• Van der Merwe and others NNO argued that the clause did not create any servitudes.

Court's Decision

The Transvaal Provincial Division (TPD) held that the clause in the notarial deed created a servitude of non-interference and a servitude of maintenance in Simplex (Pty) Ltd's favor. The TPD reasoned that the clause created a real right in Simplex (Pty) Ltd's favor that was attached to its property and that was enforceable against Van der Merwe and others NNO's property.

The TPD also held that the clause met all of the requirements of a servitude. The TPD held that the clause was a reciprocal obligation between two neighboring properties, that it was for the benefit of the dominant tenement (Simplex (Pty) Ltd's property), and that it was a burden on the servient tenement (Van der Merwe and others NNO's property).

Application of the Law to the Facts of the Case

The TPD applied the law to the facts of the case and found that the clause in the notarial deed created a servitude of non-interference and a servitude of maintenance in Simplex (Pty) Ltd's favor. The TPD ordered Van der Merwe and others NNO to comply with the terms of the servitudes.

Conclusion

The TPD's decision in Simplex (Pty) Ltd v Van der Merwe and others NNO 1996 (1) SA 111 (WLD) is a significant case because it clarifies the law relating to the creation of servitudes. The decision emphasizes that a servitude can be created by any agreement between the owners of two neighboring properties, even if the agreement is not registered in the Deeds Office.

The decision also provides guidance to landowners and servitude holders on the factors that the court will consider when determining whether a clause in a notarial deed creates a servitude.

Durban City Council v Woodhaven Ltd and Others 1987 (3) SA 555 (A)

Durban City Council v Woodhaven Ltd and Others 1987 (3) SA 555 (A)

Issue: Whether a court has the power to order the relocation of a servitude, even if the owner of the servient tenement does not consent to the relocation.

Facts:

Durban City Council (DCC) wanted to develop a piece of land that was subject to a servitude of right of way in favor of Woodhaven Ltd and Others. The servitude of right of way was created in 1885 and granted Woodhaven Ltd and Others the right to use a road across the DCC's land to access their land.

The DCC proposed to relocate the servitude of right of way to a new road that would be built adjacent to the DCC's land. Woodhaven Ltd and Others objected to the relocation of the servitude of right of way. They argued that they had a vested right in the existing servitude of right of way and that the DCC could not relocate the servitude without their consent.

Key Facts:

• The Durban City Council (DCC) wanted to develop a piece of land that was subject to a servitude of right of way in favor of Woodhaven Ltd and Others.
• The servitude of right of way was created in 1885 and granted Woodhaven Ltd and Others the right to use a road across the DCC's land to access their land.
• The DCC proposed to relocate the servitude of right of way to a new road that would be built adjacent to the DCC's land.
• Woodhaven Ltd and Others objected to the relocation of the servitude of right of way.
• They argued that they had a vested right in the existing servitude of right of way and that the DCC could not relocate the servitude without their consent.

Court's Decision

The Supreme Court of Appeal (SCA) held that the DCC had the power to order the relocation of the servitude of right of way, even if Woodhaven Ltd and Others did not consent to the relocation. The SCA reasoned that the DCC had a general inherent power to control its own process and to ensure that its judgments were enforced in a just and equitable manner.

The SCA also held that the DCC's power to relocate the servitude of right of way was subject to the following conditions:

• The relocation of the servitude of right of way must be necessary for the development of the DCC's land.
• The relocation of the servitude of right of way must not cause any undue inconvenience or expense to Woodhaven Ltd and Others.
• Woodhaven Ltd and Others must be compensated for any loss or damage that they suffer as a result of the relocation of the servitude of right of way.

Application of the Law to the Facts of the Case

The SCA applied the law to the facts of the case and found that the DCC was entitled to order the relocation of the servitude of right of way. The SCA held that the relocation of the servitude of right of way was necessary for the development of the DCC's land and that it would not cause any undue inconvenience or expense to Woodhaven Ltd and Others.

Conclusion

The SCA's decision in Durban City Council v Woodhaven Ltd and Others 1987 (3) SA 555 (A) is a significant case because it clarifies the law relating to the relocation of servitudes. The decision emphasizes that a court has the power to order the relocation of a servitude, even if the owner of the servient tenement does not consent to the relocation.

The decision also provides guidance to landowners and servient tenement holders on the factors that the court will consider when determining whether to order the relocation of a servitude.

Van der Merwe v Van Wyk NO 1921 EDS 298

Van der Merwe v Van Wyk NO 1921 EDS 298

Issue: Whether a landowner can transfer a servitude to a third party without the consent of the servient tenement holder.

Facts:

Van der Merwe was the owner of a dominant tenement that was subject to a servitude of right of way in favor of Van Wyk NO, the owner of the servient tenement. Van der Merwe transferred the dominant tenement to a third party, without the consent of Van Wyk NO.

Van Wyk NO objected to the transfer of the servitude. He argued that the servitude was personal to Van der Merwe and that it could not be transferred to a third party without his consent.

Key Facts:

• Van der Merwe was the owner of a dominant tenement that was subject to a servitude of right of way in favor of Van Wyk NO, the owner of the servient tenement.
• Van der Merwe transferred the dominant tenement to a third party, without the consent of Van Wyk NO.
• Van Wyk NO objected to the transfer of the servitude.
• He argued that the servitude was personal to Van der Merwe and that it could not be transferred to a third party without his consent.

Court's Decision

The Eastern Cape Division of the Supreme Court (EDS) held that Van der Merwe could transfer the servitude to a third party without the consent of Van Wyk NO. The EDS reasoned that a servitude is a real right that is attached to the land, and that it can be transferred to a third party along with the land.

The EDS also held that the fact that the servitude was created in Van der Merwe's favor did not mean that it was personal to him. The EDS held that the servitude could be enjoyed by any owner of the dominant tenement.

Application of the Law to the Facts of the Case

The EDS applied the law to the facts of the case and found that Van der Merwe could transfer the servitude to a third party without the consent of Van Wyk NO. The EDS held that the servitude was not personal to Van der Merwe and that it could be enjoyed by any owner of the dominant tenement.

Conclusion

The EDS's decision in Van der Merwe v Van Wyk NO 1921 EDS 298 is a significant case because it clarifies the law relating to the transfer of servitudes. The decision emphasizes that a servitude is a real right that is attached to the land, and that it can be transferred to a third party along with the land.

The decision also provides guidance to landowners and servient tenement holders on the transfer of servitudes. Landowners should be aware that they can transfer servitudes to third parties without the consent of the servient tenement holders. Servient tenement holders should be aware that they cannot prevent landowners from transferring servitudes to third parties.

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.

Johannesburg Municipality v Transvaal Cold Storage Ltd 1904 TS 722

 

Johannesburg Municipality v Transvaal Cold Storage Ltd 1904 TS 722

Issue: Whether a municipality has the power to create a new servitude by prescription.

Facts:

The Johannesburg Municipality had used a road across the land of Transvaal Cold Storage Ltd (TCS) for many years. The municipality had never acquired a servitude of right of way over TCS's land.

TCS decided to close the road. The municipality sued TCS for an order declaring that the municipality had a servitude of right of way over TCS's land. The municipality argued that it had acquired the servitude by prescription.

Key Facts:

• The Johannesburg Municipality had used a road across the land of Transvaal Cold Storage Ltd (TCS) for many years.
• The municipality had never acquired a servitude of right of way over TCS's land.
• TCS decided to close the road.
• The municipality sued TCS for an order declaring that the municipality had a servitude of right of way over TCS's land.
• The municipality argued that it had acquired the servitude by prescription.

Court's Decision

The Supreme Court of the Transvaal (SCT) held that the municipality had not acquired a servitude of right of way over TCS's land by prescription. The SCT reasoned that a municipality does not have the power to create a new servitude by prescription. The SCT held that the municipality's use of the road was not adverse to TCS's rights, because TCS had never consented to the municipality's use of the road.

Application of the Law to the Facts of the Case

The SCT applied the law to the facts of the case and found that the municipality had not acquired a servitude of right of way over TCS's land by prescription. The SCT held that the municipality's use of the road was not adverse to TCS's rights, because TCS had never consented to the municipality's use of the road.

Conclusion

The SCT's decision in Johannesburg Municipality v Transvaal Cold Storage Ltd 1904 TS 722 is a significant case because it clarifies the law relating to the acquisition of servitudes by prescription by municipalities. The decision emphasizes that a municipality does not have the power to create a new servitude by prescription.

The decision also provides guidance to municipalities and landowners on the steps they can take to protect their interests. Municipalities should be aware that they cannot create new servitudes by prescription. Landowners should be aware that they can prevent municipalities from acquiring servitudes by prescription by challenging the municipality's use of their land as soon as they become aware of it.

Resnekov v Cohen 2012 (1) SA 314 (WCC)

Resnekov v Cohen 2012 (1) SA 314 (WCC)

Issue: Whether a servitude of right of way can be created by agreement between the owners of two neighboring properties, even if the agreement is not registered in the Deeds Office.

Facts:

Resnekov and Cohen were the owners of two neighboring properties. Resnekov and Cohen agreed that Cohen would have a right of way over Resnekov's property. The agreement between Resnekov and Cohen was not registered in the Deeds Office.

Cohen used the right of way for many years. However, Resnekov eventually decided to revoke the right of way. Cohen applied to the Western Cape High Court (WCC) for an order declaring that he had a servitude of right of way over Resnekov's property.

Key Facts:

• Resnekov and Cohen agreed that Cohen would have a right of way over Resnekov's property.
• The agreement between Resnekov and Cohen was not registered in the Deeds Office.
• Cohen used the right of way for many years.
• Resnekov eventually decided to revoke the right of way.
• Cohen applied to the WCC for an order declaring that he had a servitude of right of way over Resnekov's property.

Court's Decision

The WCC held that Cohen had a servitude of right of way over Resnekov's property. The WCC reasoned that a servitude can be created by agreement between the owners of two neighboring properties, even if the agreement is not registered in the Deeds Office. The WCC also held that the fact that the agreement was not registered in the Deeds Office did not prevent Cohen from enforcing his servitude against Resnekov.

Application of the Law to the Facts of the Case

The WCC applied the law to the facts of the case and found that Cohen had a servitude of right of way over Resnekov's property. The WCC held that the agreement between Resnekov and Cohen was a valid agreement for the creation of a servitude. The WCC also held that the fact that the agreement was not registered in the Deeds Office did not invalidate the servitude.

Conclusion

The WCC's decision in Resnekov v Cohen 2012 (1) SA 314 (WCC) is a significant case because it clarifies the law relating to the creation of servitudes by agreement. The decision emphasizes that a servitude can be created by agreement between the owners of two neighboring properties, even if the agreement is not registered in the Deeds Office.

The decision also provides guidance to landowners and lawyers on the steps they can take to protect their interests and the interests of their neighbors. Landowners should be aware that they may be bound by agreements that they enter into with their neighbors, even if the agreements are not registered in the Deeds Office.

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.

Lorentz v Melle 1978 (3) SA 1044 (T)

Lorentz v Melle 1978 (3) SA 1044 (T)

Issue: Whether a clause in a notarial deed that creates a reciprocal obligation between two neighboring properties is a servitude.

Facts:

Lorentz and Melle were the owners of two neighboring properties. The notarial deed that created Melle's property contained a clause that stated that Melle would not be allowed to develop her property in a way that would interfere with Lorentz's enjoyment of his property. The clause also stated that Melle would be required to contribute to the cost of maintaining the road that separated the two properties.

Lorentz argued that the clause in the notarial deed created a servitude of non-interference and a servitude of maintenance in his favor. Melle argued that the clause did not create any servitudes.

Key Facts:

• Lorentz and Melle were the owners of two neighboring properties.
• The notarial deed that created Melle's property contained a clause that stated that Melle would not be allowed to develop her property in a way that would interfere with Lorentz's enjoyment of his property and that Melle would be required to contribute to the cost of maintaining the road that separated the two properties.
• Lorentz argued that the clause in the notarial deed created a servitude of non-interference and a servitude of maintenance in his favor.
• Melle argued that the clause did not create any servitudes.

Court's Discussion on the Nature of Servitudes

The Transvaal Provincial Division (TPD) held that the clause in the notarial deed created a servitude of non-interference and a servitude of maintenance in Lorentz's favor. The TPD reasoned that the clause created a real right in Lorentz's favor that was attached to his property and that was enforceable against Melle's property.

The TPD also held that the clause met all of the requirements of a servitude. The TPD held that the clause was a reciprocal obligation between two neighboring properties, that it was for the benefit of the dominant tenement (Lorentz's property), and that it was a burden on the servient tenement (Melle's property).

Application of the Law to the Facts of the Case

The TPD applied the law to the facts of the case and found that the clause in the notarial deed created a servitude of non-interference and a servitude of maintenance in Lorentz's favor. The TPD ordered Melle to comply with the terms of the servitudes.

Conclusion

The TPD's decision in Lorentz v Melle 1978 (3) SA 1044 (T) is a significant case because it clarifies the law relating to the nature of servitudes. The decision emphasizes that a servitude can be created by any agreement between the owners of two neighboring properties, even if the agreement is not registered in the Deeds Office.

The decision also provides guidance to landowners and servitude holders on the factors that the court will consider in determining whether a clause in a notarial deed creates a servitude.