HOLDER OF RIGHT OF WAY SERVITUDE SEEKS A GATE OVER THE ROAD: MUST THE SERVIENT LAND OWNER AGREE?
Morganambal Mannaru and another v Robert MacLennan-Smith and others (271/2021) [2022] ZASCA 137 (24 October 2022)
Property owners appreciate that when a servitude is registered over one property in favour of another, certain of the respective owners’ rights are affected because one enjoys rights over another’s property which the latter must bear with. As a result, our law determines that servitude rights are interpreted narrowly so as to ensure that the inroads on the owner ‘suffering ‘ the servitude are minimised. In this context, how should an owner react if the servitude holder, in addition to enjoying the servitude rights of way, insists on erecting a gate over the servitude road serving his land? The Court explained in this judgment that reasonableness must be the determining factor. The facts and outcome illustrate how this works practically.
The Judgment
Summary of the Judgment
LIQUIDATOR AUCTIONING PROPERTY PENDING BUSINESS RESCUE APPLICATION
Southern Sky Hotel and Leisure (Pty) Ltd and Others v Southern Sky Food Enterprises (Pty) Ltd (617/2021) [2022] ZASCA 134 (13 October 2022)
In order to facilitate the possible resurrection of a business that is in dire straits financially, the Companies Act has provisions to the effect that liquidation proceedings (that have already commenced) are suspended if a business rescue application is launched. The suspension is valid only until a court has ruled on the business rescue application or, if granted, the rescue process has terminated.
Where does this leave the liquidation process that has already commenced? In this judgment, the liquidators proceeded with an auction sale of the property, despite the pending business rescue application. On the specific facts here, the Court held that the sale, which was subject to the outcome of the rescue application, was valid. Read the judgment and summary for an explanation why this is so.
