Willem Gerhardus Werner v Florauna Kwekery BK and Others

The dispute concerned Portion 374 of the farm Hartebeesthoek 303, owned by the appellant’s two minor children. The first respondent, a developer of the Ozoroa Park development, claimed the existence of a public servitude of right of way over Portion 374, relying on a servitude area depicted on a Surveyor-General sub-divisional diagram (SG 1149/1998). No notarial deed creating the servitude was ever registered in the Deeds Office. The servitude depiction arose during an intended business development by a previous owner, Horn, which never proceeded and whose business rights lapsed. Residents of Ozoroa Park had enjoyed temporary access across Portion 374 to the Brits road. When the appellant sought to close the access and fence the land, the first respondent applied for confirmation and registration of a public servitude. The High Court granted the relief, declaring a public servitude to exist and ordering its registration. The appellant appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The order of the High Court was set aside and replaced with an order dismissing the application with costs, confirming the earlier rule nisi in favour of the appellant, and ordering the first respondent to pay the costs of the counter-application.

The case clarifies that servitudes, including public rights of way, require proper legal creation and registration, and cannot arise merely from planning diagrams or administrative annotations. It affirms the primacy of deeds registration principles and protects property owners against de facto expropriation through informal or lapsed development conditions.