Division: The Supreme Court of Appeal
Before: Howie P, Mthiyane, Heher, Combrinck JJA & Kgomo AJA
Heard: 21 November 2007
Delivered: 28 February 2008
Summary: Land - servitudes - right of way - defined and registered - relocation at instance of owner of servient tenement - when allowed. Constitutional law - s 173 - development of the common law - when appropriate.
Neutral citation: This judgment may be referred to as Linvestment CC v Hammersley (634/2006)  ZASCA 1 (28 February 2008).
Per Heher JA
The issue in this appeal, simply stated, was whether the owner of a servient tenement can, of his own volition, change the route of a defined right of way registered against the title deeds of his property. The answer until recently was no. However after a lengthy analysis of the established law which it was conceded by the appellant was against him - Gardens Estate Ltd v Lewis 1920 AD 144 -was in accordance with existing principle - but sought relief based on the contention that the decision was based on a misinterpretation of the distinction between servitudes constituted in general terms and those specifically constituted. This was rejected, as was the argument that the appellant was being deprived of his rights under s 25(1) of the Constitution. The attempt to introduce the rule that servitudes must be exercised civiliter modo was rejected as being misconceived. As was the equation of a general servitude with a defined one.
However the unstated premise that the law as expounded by Voet, correctly reflected the common law of South Africa in Gardens Estate especially with reference to the Seventh Title of the Ontwerp van het Burgerlijk Wetboek voor het Koningkrijk der Nederlanden aan de Staten-Generaal aangeboden den 22sten November 1820, combined with the inherent power of the Supreme Court of Appeal to develop the common law justified a reconsideration of this issue. Especially with reference to mitigating the burden of servitudes.
The question of mitigating the burden of servitudes has been addressed in many systems of law - Article 701 of the French Code comments as follows:
"As the needs of the properties change, and society being concerned that servitudes do not hamper the changes which become necessary, the law must permit interested parties to modify the exercise of the servitude".
Switzerland, Italy, Greece, Belgium and Germany also recognise a right of relocation of a defined servitude - subject to the duty of the servient owner proving that the dominant owner's right of enjoyment would not thereby be reduced. In Scots law the tide is turning from strict adherence to contractual rights toward a utilitarian power of relocation that is judicially controlled or exercised under legislation. In short there is a widespread civilised practice which favours a flexible approach to the relocation of servitudes. The interests of justice therefore require a change in our established law on the subject, notwithstanding the views of Voet as confirmed in Gardens Estate.
The rigid enforcement of servitudes without benefit to either parties seems indefensible, and properly regulated flexibility will not set an unhealthy precedent or encourage abuse. Therefore Heher JA proposed that in circumstances falling within the problem posed by the stated case, the law be developed to ensure that injustice does not result.
Accordingly the following order was made at :
"1. The order of the court a quo is set aside and replaced by the following-
It is declared that if the owner of a servient tenement offers a relocation of an existing defined servitude of right of way the dominant owner is obliged to accept such relocation provided that:
(a) the servient owner is or will be materially inconvenienced in the use of his property by the maintenance of the status quo ante;
(b) the relocation occurs on the servient tenement;
(c) the relocation will not prejudice the owner of the dominant tenement;
(d) the servient owner pays the costs attendant upon such relocation including those costs involved in amending the registration of the title deeds of the servient tenement (and, if applicable, the dominant tenement)."