- The couple bought the restaurant property, hoping to keep the business running.
- The judge found that the property was sold separately, breaking the rules of a binding Notarial Tie Agreement.
- The court dismissed the application and ordered the couple to pay costs.
Samuel Jacobus Morris and his wife, Cornelia Johanna Morris, went to court seeking to compel Elizabeth Josephine Te Boekhorst to remove a metal fence blocking access to adjoining land used for customer parking. They argued that the closure had crippled the viability of their restaurant business.
Instead, the Morrises left the High Court in the Western Cape with their application dismissed, a costs order against them, and a judicial finding that they had bought property without any enforceable right to use the neighbouring land.
The dispute arose after the couple purchased a Gordon’s Bay property in 2024 for R3 million with the intention of continuing to operate a restaurant from the premises. They believed customers would have access to parking on adjoining land, a feature historically tied to the property through a registered Notarial Tie Agreement. But that access had already been cut off years earlier when Te Boekhorst erected a metal fence around the parking area after a dispute with the previous owners.
A property deal with hidden legal problems
The court traced the dispute back to a 2017 Notarial Tie Agreement linking two adjoining erven. The agreement formed part of the rezoning approval granted by the City of Cape Town, allowing one property to be used for offices and a coffee shop on condition that parking would be available on the adjoining erf.
A key condition of the arrangement was that the two linked properties could not be sold separately. They had to remain legally connected unless the tie agreement was officially terminated or amended. However, that did not happen.
In 2021, one of the linked properties was sold without including the adjoining land. This led to a dispute between the owners at the time, Cathleen Henriette Mostert and Jacob Johannes Mostert, and Te Boekhorst over the use of the neighbouring land for parking. In September 2021, Te Boekhorst fenced off the area. The Mosterts did not contest this and later sold the property to the Morrises for R400 000, less than what they had paid for it.
Acting Judge TJ Mgengwana found that the legal difficulties facing the couple were rooted in those unlawful separate transfers. “The challenges faced by the applicants currently are a direct result of the registration of the transfer of the land by the Registrar of Deeds separately from the neighbouring erven in contravention of a material term of the Notarial Tie Agreement."
The judge added, “The erven should not have been sold separately as it is inconsistent with the terms of the Notarial Tie Agreement.”
No right to force access
The question before the court was whether the Morrises had acquired any legal right over the adjoining erf that would allow them to compel the removal of the fence. The court found that they had not.
“The terms of the Notarial Tie Agreement were in existence and very binding when the Mosterts bought the second erf from Emelia and sold it to the applicants without seeking to take transfer of the first land," Judge Mgengwana held.
“Because of the registered separation, notwithstanding that it was done in contravention of the terms of the Notarial Tie Agreement, the applicants have no right over the first erf. Consequently, applicants are not entitled to the relief sought in their Notice of Motion and Founding Affidavit.”
This meant the fence would stay up, access would remain blocked, and the Morrises had no legal grounds to claim use of the neighbouring land for customer parking.
Court points to previous owners
The Morrises also argued that they invested substantial savings and pension funds into buying and developing the property, relying on what they believed was an arrangement that included parking access. They alleged misrepresentation. The court rejected that claim against Te Boekhorst.
Judge Mgengwana concluded, “If there is anyone who made misrepresentations to the applicants, that would be none other than the Mosterts who neglected to disclose to the applicants the problems surrounding access to the first erf before the finalisation of the sale agreement.”
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