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Viljoen (Srn) NO and Others v Van Wyk NO and Another (5049/2011) [2011] ZAWCHC 93 (20 April 2011)

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IN THE HIGH COURT OF SOUTH AFRICA

WESTERN CAPE HIGH COURT, CAPE TOWN



CASE NO: 5049/2011


In the matter of:


ROELOF STEPHANUS VILJOEN (SNR) N.O. …..................................................1st Applicant


ROELOF STEPHANUS VILJOEN (JNR) N.O. ….................................................2nd Applicant


WILLEM WERNER VILJOEN N.O. …...................................................................3rd Applicant


and


DEMETRIUS VAN WYK N.O. ….......................................................................1s' Respondent


DEMETRIUS VAN WYK ….......................................................................2nd Respondent






JUDGMENT: 20 APRIL 2011







WEINKOVE, AJ

[1] I have considered the papers in this matter and the heads of argument filed by the parties. I have indicated to Counsel what I propose to do in this matter and they have agreed to consult with the Registrar being the 19,h October 2011:

I accordingly order that this matter is referred to trial and for the hearing of oral evidence on a date to be fixed by the Registrar;

i) the court will then decide the issues canvassed in this papers including
whether the respondent has been guilty of unreasonably obstructing
applicants use of the servitude road

ii) whether the applicant has been guilty of unreasonable use of the
servitude road;

iii) whether the servitude should be cancelled as contended by the
respondent;

iv) whether any of the interim orders should be cancelled or modified;

  1. whether encroaching pine trees, fences or plants should be removed
    by the persons who planted or erected them;

  1. whether the costs of maintaining the servitude road should be borne by
    one or both of the parties, and if the latter in what proportions;

vii) whether there should be any restriction in respect of the size or weight
of vehicles using the servitude road.



[2] I direct that the affidavits are to stand as pleadings and that the parties are directed to comply with the provisions of the rules of Court in relation to the trial action including the provision of Rule 21. 35 and 36.




[3] In order to cater for the position for the servitude road pending the determination by this court in the trial action, I direct as follows:


a. All persons shall observe a speed limit of 20 km/h when using the road;

b. Respondent shall fill in and recompact all the cuttings that he brought on
the road to act as speed controls and shall not make new cuttings;

c. All overhanging branches are to be cut back by the parties upon whose
property the trees are situated or have been planted;

d. The gate to the servitude road shall be closed after each time it is used;

e. Applicant shall not cause or allow the gate control codes to be changed
without advising the respondent of the new codes.

f Applicant shall keep the road in good order and condition in terms of his

tenders in the affidavits;

g. Respondent shall not build any "speed bumps" on the road.


[4] Costs shall stand over.



WEINKOVE, AJ