IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NO: A46/2011

in the matter between:

and

JUDGMENT : 7 SEPTEMBER 2011

TRAVERSO, DJP

"G. SUBECT FURTHER to a servitude area 123 (ONE HUNDRED AND TWENTY THREE) square metres in extent, established for recreational use only and on which no buildings may be erected, as more fully depicted by the figures ABCDEFGH on Servitude diagram S.G.No 10013/1996 annexed hereto in favour of Erf 146 Parel Vallei, Measuring 1001 square metres, and Held by Deed of Transfer No T 32278/1992;

in addition it shall be a term of the servitude that-

"3. I confirm that i purchased the immovable property situated at 63 Adam Tas Road (Erf 145), Somerset-West during 1997. As part of the purchase agreement between the sellers, Mr and Mrs Mann and myself, I was required to accept the existence of a servitude, which had already been registered over a section of Erf 145.
4. It was explained to me that the servitude was created because the property situated at 61 Adam Tad Road (erf 146), Somerset-West, had an established garden and water feature which formed part of the garden close to the swimming pool. I agreed to the erection of the boundary wall alongside the swimming pool on Erf 145 connecting to my house to give effect to the servitude. This wall would give privacy to both parties and ensure the private use of the servitude area by the owners of Erf 146 by maintaining the unity of the established garden and water feature.
5. There was also an existing wall connecting the two properties, which formed part of the original connecting stairway between the houses. This wall remained to give privacy and security to both properties. A bedroom window of my house on the south side overlooked the garden on Erf 146 and I agreed to have frosted glass for privacy.
6. I accepted the above situation but added, on legal advice, certain provisions to the servitude agreement including that access would be granted by the owner of Erf 146 when it was necessary to inspect or maintain the outside wall and window of the house on Erf 145, which was situated on the south side and within the servitude area.

7. Mr and Mrs Moss bought Erf 146 later during 1997 and we were neighbours until 2005 when I sold Erf 145. During all those years we never had any problems in regard to the peaceful and undisturbed private use of the garden servitude area by Mr and Mrs Moss."

10.3. That the appellants did not show that the Magistrate's Court had jurisdiction.

"An order to restore possession of a movable is generally performed by the physical handing over of the article. In the case of an order to restore possession of an immovable, on the other hand, there can in the nature of things be no physical handing over. Such an order may be mandatory in part, as where it requires the spoliator to vacate the property, or to procure that it be vacated, or to hand over the keys to premises, or to remove fences or other obstacles or to perform other acts requisite for the restitution of the status quo."

(b) Respondent is ordered to pay the costs of this application.

I agree:
							VAN STADEN, AJ