Unathi owns a smallholding in KwaZulu Natal. Her property is adjacent to Luyo’s
smallholding, where he operates a nursery specialising in different Agapanthus
flower bulb varieties. Unathi and Luyo have been neighbours for many years
and have a good relationship. Upon negotiation between Unathi and Luyo, and
after consulting with her attorney, Unathi decides to grant a limited real right
over a portion of her property in favour of Luyo’s property to allow him access
to a natural water source located on her land. The idea is to give Luyo the right
to access the water source for irrigation of his bulb beds. Unathi replaced an
existing wire fence on her property with a brick wall, in the bona fide belief that
the fence denoted the true boundary between the two properties. The wall has a
small gate which enables Luyo to enter Unathi’s property in terms of the limited
real right.
Subsequently, Unathi ordered a construction company to build an additional
garage on her property. While the building of the garage and the brick wall was
in process, Luyo was in the Bahamas for a few months to visit his sister. While
he was away, he left his nursery manager in charge. Upon his return home, he
realised that a section of Unathi’s additional garage building was built on his
property. Although he consulted with his attorney about his options, he decides
to sell his property and to start a new nursery elsewhere. With the help of an
estate agent, he finds a buyer very quickly and the property is transferred to the
new owner (Sandra). The estate agent accidentally omitted to include specific
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