De Kock v Häel and Others

• Jurisdiction: South Africa
• Judge: Davis AJ
• Judgment Date: 16 October 1996
• Citation: 1999 (1) SA 994 (C)
• Docket Number: 4921/95 & 6790/95
• Hearing Date: 15 October 1996
• Counsel: AR Sholto-Douglas for the applicant RWF MacWilliam for the first and second respondents
• Court: Cape Provincial Division

Davis AJ:

This is an application for a declaratory order that a servitude recorded in the title deeds of erf 10231, Constantia, does not confer any servitude rights over the remaining extent of erf 4814, Constantia, which is the property of applicant. G

In the alternative applicant seeks an order declaring that the servitude over applicant's property does not allow access from first respondent's property over applicant's property into a road known as Tamarisk Lane, Constantia. H

There is, in addition, a counter-application by second respondent to which I shall return later.

Briefly the facts of the matter can be summarised thus: In 1963 erf 9, Welbeloond, a subdivided estate, was transferred by one Peter Francis Norton to one Patricia Reitz, subject, inter alia, to a servitude. That particular servitude reads as follows: I

'Subject and entitled to the servitude referred to in the endorsement dated 25 November 1963 on the said deed of transfer No 9472/1949 reading: By deed of transfer No 18896/1963 dated this day the existing road extending to a width of 1,89 metres on either side of the line a b on diagram No 7437/49 annexed to certificate of consolidated title No 9806 dated 10 July 1963 on erf No 9 Welbeloond subdivided estate meas 1,7536 hectares now held under the aforesaid deed of J

Davis AJ

transfer No 18896/1963 has been made a servitude road common to the aforesaid erf 9 and the remaining extent A of erf 3 Welbeloond subdivided estate meas 8498 square metres held hereunder; as will more fully appear on reference to the said deed of transfer.'

Norton retained ownership of the remainder of erf 3 Welbeloond subdivided estate. The servitude was B therefore created in favour of erf 9 against the remainder of erf 3 and in favour of the remainder of erf 3 against erf 9. Over time a series of subdivisions took place. Out of these various subdivisions emerged erf 4814 owned by applicant, and erf 10231 owned by first respondent, who is married to second respondent. Both properties were transferred subject to and entitled to the servitudes. C

Erf 9 was also subdivided and, at the time of the application, it comprised erf 2733 owned by third respondent and erf 8522 owned by fourth respondent. As a result of certain disputes between applicant and first and second respondents, particularly regarding access from Tamarisk Lane to erf 10231, the applicant has approached the Court for relief as set out. Third, fourth and fifth respondents were cited by virtue of their D direct and substantial interest in the subject-matter of the application but in the case of third and fourth respondents they did not oppose the relief sought. Fifth respondent did not enter an appearance.

It is necessary at the beginning to set out some of the procedural issues which have vexed the proceedings. E In its founding affidavit applicant contended that the servitude road existed to provide access to Welbeloond Road. This was then refuted by second respondent in his answering affidavit. In para 2.5 of this answering affidavit second respondent said

'I furthermore wish to point out that at the time when I in 1964 purchased the remainder of erf 3 the servitude road F had clearly been used for the purposes of farming with the vines which grew on both my property and erf 9 and was used to gain access to the south-western border of the two erven, ie it was used as a road for movement in the exact opposite direction to Welbeloond Road. When the applicant purchased the property the road was, to his knowledge, used to gain access to Tamarisk Lane.' G

Applicant responded in an amended motion to the effect that he accepted the correctness of the assumption regarding Welbeloond Avenue but averred that the purpose of the servitude was never to do more than create a corridor for the various parties to have access to the vineyards which existed at the time of the creation of the servitude, rather than to Tamarisk Lane which did not exist at that time. H

First and second respondents opposed this amendment in a notice of opposition and applicant replied by contending that this notice which was filed on 26 September 1996, five months after the amended application was served upon respondents, was out of time. I

During argument both Mr Sholto-Douglas, who appeared for the applicant, and Mr Mac...