Baront Investments (Pty) Ltd v West Dune Properties 296 (Pty) Ltd and Others

• Jurisdiction: South Africa
• Judge: Jappie DJP, Sishi J and Seegobin J
• Judgment Date: 30 January 2014
• Citation: 2014 (6) SA 286 (KZP)
• Docket Number: AR 372/12
• Hearing Date: 05 August 2013
• Counsel: AK Kissoon Singh SC (with AD Collingwood) for the appellant. C Snyman for the first respondent. L Combrink for the second respondent. AJ Rall SC for the third respondent.
• Court: KwaZulu-Natal Division, Pietermaritzburg

Sishi J (Jappie DJP and Seegobin J concurring):

Introduction

G [1] The appellant (the first respondent in the court a quo) appeals against the judgment delivered by his lordship the honourable Mr Justice Mnguni on 14 May 2010. After the learned judge had refused leave to appeal on 14 November 2011, the Supreme Court of Appeal on 6 March 2012 granted leave to appeal to this court.

H [2] This particular matter has its origins in an urgent application — initially moved by the first respondent only — in which the appellant, the third respondent and the fourth respondent herein were cited, respectively, as the first, second and third respondents.

[3] Subsequently Imbali Props 42 (Pty) Ltd (the second respondent I herein) applied for and was granted leave to join in the proceedings. It was therefore referred to as the second applicant in the court a quo.

[4] Although in the court a quo the City of Umhlathuze was cited as the second respondent, in fact it made common cause with the applicants for the relief which was sought by them and for all intents and purposes J assumed the mantle of a further applicant.

Sishi J (Jappie DJP and Seegobin J concurring)

[5] The registrar of deeds, the fourth respondent herein and the third A respondent in the court a quo, has at all times contented herself to abide the decision of the court, delivered no affidavits and was not represented at the hearing. She thus plays no role in this appeal.

[6] What the first and second respondents asked for in the court a B quo — and in respect of which the third respondent made common cause — was that a road servitude in favour of the (third) respondent be registered over the appellant's property as a public road and that the appellant pay the costs of the application whilst the (third) respondent pay the costs of registration of the servitude.

Issues C

[7] The issues that require determination are:

•

Could the court a quo grant the relief that it did?

•

Were the first, second and third respondents herein entitled to have any servitude registered over the appellant's property?

Factual background D

[8] The following facts are either common cause or not disputed by the parties:

[8.1]

Alton is an industrial park within the municipal boundaries of the third respondent, and the township was established in 1975. E

[8.2]

One of the conditions of the establishment of the township reads:

'A temporary road servitude is to be established in the lay-out along the south-eastern and south-western boundaries of Lot 1795 and the south-western boundary of Lot 1854 as shown F on the said plan, such servitude is to be registered in such a manner that it shall provide access to this layout until such time as an alternate access is available and thereafter such road servitude shall lapse.' [Own emphasis.]

[8.3]

The temporary servitude was, however, not registered against G the title deeds of Erf 1795 when that property was first transferred from the municipality (the third respondent) on 22 February 1984 under deed of transfer No T9499/84. It was only when application was made for the subdivision of lot 1795 into two properties that a temporary servitude was registered against the title deeds of portion 1. H

[8.4]

Prior to the establishment of the Alton Township, the third respondent had built 'Ferro Close' to serve as a temporary connecting road between the Alusaf plant and Alton Township.

[8.5]

In July 1998 (when the appellant's predecessor in title, Richards Bay Industrial Park CC, subdivided Erf 1795) a temporary I road servitude was registered over portion 1 of Erf 1795, Richards Bay. This was done on the following terms: 'Subject to a temporary road servitude as indicated by the figures ABCKH on diagram SG No 2652/1990 as imposed by the Minister under the provisions of the Town Planning Ordinance No 27 of 1949.' J

Sishi J (Jappie DJP and Seegobin J concurring)

[8.6]

A The first respondent is the owner of Erf 1796, and the second respondent the owner of Erf 1804, Richards Bay. Erf 1796 and Erf 1804 are immediate neighbours. They abut each other and face onto a road called Geleiergang.

[8.7]

Behind these two properties lies Erf 1795, now, since its subdivision, portion 1 of Erf 1795 and the remainder of B Erf 1795, which belong to the appellant. This is clearly demarcated in annexure A to the first respondent's founding affidavit.

[8.8]

Access to the first and second respondents' properties is via C Geleiergang but the first and second respondents have used Ferro Close (which substantially approximates portions of the appellant's properties which are the subject-matter of the servitude contended for) as 'their primary entrance to their properties' even though it has been acknowledged that such entrance was not intended to be the primary entrance. In a site D plan which the first respondent submitted to the third respondent in 1997, it described the entrance off Ferro Close as 'temporary' and the entrance via Geleiergang as the future 'permanent entrance'.

[8.9]

During the period 2002 to 2005/6 the appellant's predecessor in title, Richards Bay Industrial Park CC, indicated to the first E and second respondents that it wished to close Ferro Close and this, according to the first three respondents, precipitated a series of discussions. (It must be noted that the owner of Erf 1795 at that time was the appellant's predecessor in title and it was they and not the appellant who attended the relevant F meeting held on 13 June 2006. The appellant does not deny that the meeting occurred — to that extent the meeting itself is not in dispute. However, the appellant denies any knowledge of what transpired at that meeting.) According to appellant none of the respondents have provided any supporting documentation as to what precisely was agreed upon at that meeting — be G it in the form of minutes of that meeting or correspondence exchanged between the parties.

[8.10]

The first respondent alleges that at that meeting agreement was reached in respect of five issues which, as explained above, the appellant does not necessarily dispute but denies having any H knowledge of. It is also clear that no written agreement was concluded. It would, however, seem that there was an oral agreement reached in respect of five issues, namely —

•

that the access between Ferro Close and Kraft Link Street would be improved;

•

that Ferro Close would remain a permanent public street I within the then existing servitude from Kraft Link Street only as far up as the entrances to the first and second respondents' properties;

•

the remainder of Ferro Close would be closed to the public and the temporary right of way in favour of the third J respondent would be cancelled;

Sishi J (Jappie DJP and Seegobin J concurring)

•

no road access would be permitted to the northeastern A boundary of the first respondent's property, except for an existing entrance to its offices; and

•

the third respondent would construct an entrance off Geleiergang, the road providing access to the first and second respondents' properties. B

Appellant drew to the attention of the court that there is no allegation by the respondents that the oral agreement extended to the registration of any new reduced servitude. This is a matter of considerable importance in the appellant's submission. C

[8.11]

On 1 August 2006 the third respondent's council passed resolution 3947 in the terms set out in the last page of annexure D to the first respondent's founding affidavit. (Such resolution does no more than note the agreement between the interested parties at the time and it did not extend to approving or authorising the registration of a new reduced servitude.) D

[8.12]

In November 2006 the appellant was introduced to one Vinesh Juglal (Juglal) who claimed that he had acquired a right to purchase erf 1795 from Richards Bay Industrial Park CC and, after concluding a nomination agreement with Juglal on E 29 November 2006, the appellant proceeded to take transfer of the property in terms of a deed of transfer dated 16 August 2007. Subsequently, the appellant acquired the remainder of erf 1795 from Richards Bay Industrial Park CC.

[8.13]

The title deed under which the appellant held the property F reflected that a temporary road servitude existed, and the appellant thereafter proceeded (via its land surveyors) to request (on 19 March 2008) that the third respondent agree to the cancellation of the temporary road servitude.

[8.14]

The following day, 20 March 2008, the third respondent G indicated to the appellant's land surveyors that it had no objection to the cancellation of the temporary 'right of way' (sic), and stated further that 'it would be appreciated if you could attend to the cancellation on behalf of the Council'.

[8.15]

On 21 May 2008 the appellant's attorneys effected the H cancellation of the temporary road servitude. (It will be noted that in the notarial deed of cancellation it is reflected that Padimini Naidoo also represented the third respondent in executing that notarial deed of cancellation.) At the time of cancellation the third respondent had not completed or submitted any documents for the registration of a new reduced servitude despite I knowing full well that the then existing servitude was being cancelled.

[8.16]

After the cancellation the appellant gave notice to the first and second respondents that the road which previously existed through the servitude was to be cordoned off. J

Sishi J (Jappie DJP and Seegobin J concurring)

Nature of the servitude A

[9] During argument the question arose whether the servitude in question was a private servitude, a praedial servitude or perhaps a so-called public servitude.

B [10]...