Maryna holds the BA, LLB, LLM degrees and is a Director at the Cape Town branch of STBB. She is an admitted Attorney, Notary Public, Conveyancer and Insolvency Practitioner with many years of experience in the fields of property law, conveyancing and the laws relating to corporate compliance (especially in respect of the FICA and POPIA laws). Up until 2018 she was also head of the firm’s national marketing portfolio. She is a seasoned public speaker and presenter, both in person and online. She prepares text for the majority of STBB’s internal and external publications and is editor and co-writer for two pivotal publications in the South African real estate industry – the ABC of Conveyancing (JUTA) and Delport’s South African Property Law and Practice (JUTA).

Property Law Update | Issue 23 – 2022

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.

The Judgment
Summary of the Judgment

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