Introduction
In the case of Da Ribeira and Others v Woudberg and Others, the dispute centres
around whether the defendant has the ancillary right to pipe a water furrow known as
the Molen Rivier Sloot, on the plaintiff’s properties, which are the servient tenements.
The first defendant (the holder of a servitude of aquaeductus) raised exceptions,
against the plaintiffs’ particulars of claim. In response to these exceptions, the
plaintiffs filed an application for leave to amend their particulars of claim. They
wanted to introduce allegations that the plaintiffs would be prejudices if piping was
installed in the sloot. This essay hereby provides a structured legal analysis of the
interaction between this case and the three peremptory principles of interpretation of
servitudes, namely the principles of in favorem libertatis, effective use and the
civiliter exercise.
In favorem Libertatis
The first peremptory principle is the in favorem libertatis principle. This principle
essentially means that ownership or the land is free from servitudes. This principle
has three manifestations. Firstly, the presumption that the land is free from
servitudes and the corresponding burden on the claimant to prove that they are the
holder of a certain servitude. Secondly, if the existence of a servitude is proved, an
interpretation that imposes the least cumbersome burden is preferred. Lastly, if there
is uncertainty whether the servitude is praedial or personal, a personal servitude is
favoured because it imposes a lesser burden. This principle moves the focus away
from peremptory property principles and where the terms of the servitude creating
agreement is clear and unambiguous. Where the terms are clear and unambiguous,
the agreement is afforded its normal grammatical meaning (the golden rule).
However, if the terms are clear and unambiguous but they are drafted too widely or
generally so that unfair burden may be imposed on the servient holder, the in
favorem libertatis principle can take precedence over the golden rule. The golden
rule can also be departed from if interpreting the terms according to their
grammatical, ordinary meaning would lead to absurdity or would lead to the servitude
being interpreted contrary to the intentions of the party. Essentially, the relationship
between the servitude holder and the servient owner must be determined by the in
favorem libertatis principle.
In Da Ribeira, the court does not explicitly use the phrase “in favorem libertatis”, but
they do explicitly engage with the it. De Wet AG explicitly cites Glaffer investments
and confirms that the South African position is that a servitude must be interpreted
according to its ordinary grammatical meaning and by having regard to the
surrounding circumstances when the servitude was granted. It must also be
interpreted restrictively. The court said that the addendum allowing piping was
contrary to the express terms of the servitude agreement and that piping would
destroy the furrow and alter the joint maintenance obligation. This implies that the
court considered the meaning of the terms of the original water servitude. The court
therefore correctly identified and applied the principle that servitude creating
agreements should be interpreted restrictively. However, it is essential to note that
the Da Ribeira judgement was dealing with an exception and an amendment
application. The court thus stated correctly how the servitude should be interpreted,
however, the actual application of this principle is left up to the trial court.
The principle of effective use
The second peremptory principle is the principle of effective use. This means that the
interests of the servitude holder take preference over those of the servient owner.
The servitude holder essentially acquires, in addition to the servitude, all the
entitlements that the servitude holder requires to exercise the servitude (so called
ancillary entitlements). These ancillary entitlements, however, should not be
exercised so that it burdens the servient owner unduly. The function of this principle
is to ensure that the holder of the servitude is afforded full and normal use of the
servitude and essentially so that the servitude is not rendered worthless because a
servitude holder does not have the necessary entitlements to derive the intended
benefit from the servitude.
The court in Da Ribeira again explicitly engaged with this principle. The main ground
of exception in this case is whether the first defendant, as the servitude holder, has
an implied ancillary right to pipe the furrow along which the water is led. The plaintiffs
dispute that this implied right exists. The judge states that it is implied that a
servitude holder, in addition to the servitude, acquires all the entitlements that are
required to exercise the entitlements fully, provided that those ancillary entitlements
do not unduly burden the servient property. The judge, furthermore, states that the
servitude holder is entitled to undertake all actions necessary for the proper and
effective exercise of the servitude. The court however says that they do not agree
that the implied rights of the holder of the servitude cannot be amended by
consensus.
The court thus correctly identifies the principle and its importance. Furthermore, the
court supports the idea that the servitude holder and the servient owner can
determine the nature, scope and impact through consensus. The judge states that
the trial court will have to consider whether it is necessary for the efficacy of the
servitude to pipe the sloot and how it will impact the parties’ joint maintenance
obligation. He, therefore, suggests that the trial court will have to carefully balance
the rights of both parties. The servitude holders right to effective use must be
balanced against the actual provisions and terms of the servitude as well as impact
and burden this will place on the servient tenement.
The Civiliter Exercise
The third peremptory principle is the principle of civiliter modo, which requires that
the holder of a servitude exercises that servitude with due regard for the other party.
The purpose of this principle is to protect the owner against the negative effects that
the exercise of the servitude may have on their ownership of the land. The negative
effects are usually unnecessary burdens on the land that are not needed for effective
use nor are they included in the terms of the agreement. This principle essentially
regulates that a servitude is exercised reasonably and with consideration for the
other party, balancing the rights of both parties. However, this does not mean that a
servitude holder may not exercise the servitude because it would burden or bother
the owner.
The court does not explicitly engage with the civiliter exercise. However, in agreeing
that the holder of the servitude acquires ancillary entitlements which are required to
exercise the servitude, the judge acknowledges that those ancillary entitlements
must not unduly burden the servient property, which touches on the underlying
requirement of the civiliter exercise. Stating that the ancillary entitlements must not
unduly burden the owner, reflects the essence of civiliter modo namely avoiding
undue burden or inconvenience on the servient owner and considering the other
party when exercising the servitude. Moreover, the court says that the piping of the
sloot will change the nature of the maintenance obligation as its set out in the
servitude agreement. However, the court says that whether it would place a bigger
financial burden on the servient tenement will have to be determined by the trial
court. This again shows that the court is considering whether the servitude holder is
acting civiliter modo towards the owner.
The court thus implicitly recognises this principle. The court, however, is once again
not the trial court but the judge does state that the trial court should assess the
impact of the piping on the maintenance obligations and whether this will unduly
burden the owner. Therefore, they recognise the importance of the civiliter exercise
and suggest that trial court balances the interests of both parties to ensure that the
servitude holder can exercise the servitude fully and that the servient owner is not
unreasonably burdened.
Conclusion
Therefore, the Da Ribeira judgement confirms the importance of the three
peremptory principles namely in favorem libertatis, effective use and civiliter modo.
The court explicitly engages with the principles of in favorem libertatis and effective
use, while touching on the civiliter exercise implicitly. This judgement highlights how
these principles often require a detailed factual assessment, which in this case was
correctly reserved for the trial court. In this case, the judge followed the in favorem
libertatis principle while suggesting that the trial court balance the interests of the
parties in determining effective use and civiliter modo.