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NEW LAW ON SERVITUDES
LAW OF PROPERTY
♦ The Long and Winding Road “Change is not made without inconvenience,
even from worse to better.”
– Richard Hooker (1554 - 1600)
The outcome of any court case can be uncertain, because the law can be uncertain. Law is not static and fixed but can be subject to change. This was the experience of two litigants who took their dispute regarding a right of way all the way to the Supreme Court of Appeal in Bloemfontein.
The appellant, whose land was subject to two registered servitudes in favour of a neighbouring property, instituted action in the High Court in which it claimed a declaration that it was permitted to amend the course of the servitudes. The neighbour raised the defence that the declaration could not be granted because the defined route of the registered servitudes could be changed by mutual consent only. The High Court agreed, as a result of which the appellant approached the Supreme Court of Appeal.
Judge of Appeal Heher agreed that according to the existing law it was correct that a defined and registered servitude as in this case could be changed only by mutual consent. In principle such a conclusion was unassailable. However, the Supreme Court of Appeal has always possessed an inherent power to develop the common law. This power is confirmed in Section 173 of the Constitution “taking into account the interests of justice”. A modification of our existing law may better serve the interests of justice when
the existing law is uncertain or does not adequately serve modern demands on it. After having reference to French, Swiss, Italian, Greek, Belgian, German and Scots law, the judge concluded that the interests of justice do require a change in our established law on the subject:
“The rigid enforcement of the servitude when the sanctity of the contract or the strict terms of the grant benefit neither party but, on the contrary, operate prejudicially on one of them, seems to me indefensible. Servitudes are by their nature often the creation of preceding generations devised in another time to serve ends which must now be satisfied in a different environment.”
On the facts the court then concluded that if the present situation and route of the rights of way continued, the appellant would be materially inconvenienced in the use of its property; a relocation of those routes would not prejudice the owner of the neighbouring property; and if the appellant paid the costs of the relocation including those costs involved in amending the registration of the title deeds, that would be in the interests of justice and it was so ordered. The parties were ordered to pay their own costs in both the High Court and the Supreme Court of Appeal.
Linvestment CC v. Hammersley & Another 2008 (3) SA 283
(SCA).
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