●​ Servitudes are limited real rights

○​ Permits the use of another’s land (most are created through a contract and
registered in a title deed)
○​ A servitude holder is the person who uses the land, servient is the person
who owns the land
○​ Different from personal rights (personal rights to a performance can only be
enforced by the other contracting party while limited real rights are in terms of
the land, the right of performance follows the thing not the party)
●​ Real rights in ownership are considered ius in re sua while servitudes (limited real
rights are considered ius in re aliena)
○​ Servitudes are to serve not to own (nemini res sua servit)
○​ All real rights can only exist if the land is registered to create third party effect
(Deeds Registers Act s16)
■​ Only applies to real rights and not personal rights bc of third party
effect (s 63(1))
○​ Praedial servitudes must be registered (s75)
■​ If it is subject to specific conditions, they must also be registered (s76)
●​ Forms of servitudes can be positive or negative
○​ Positive allows a servitude holder to use the property in some way (e.g a
person allowing another person to graze animals on their land)
○​ Negative allows a servitude holder to prevent the use of their property in
some way (e.g a person preventing another from building a building higher
than 2 stories)

Relationship btw Servitude holder and servitude

owner
Interpretation and presumptions (in favorem libertatis – “in favour of
freedom”)

●​ General idea: Land is presumed to be free of servitudes unless proven otherwise.​

●​ This principle works in three ways:​

1.​ If you claim a servitude exists, you must prove it – land is assumed not to be
burdened by one.​

2.​ Even if a servitude exists, the agreement creating it will be interpreted as

narrowly as possible, so that the servient land is not burdened more than
necessary.​

3.​ If it’s unclear whether a servitude is personal (benefits a person) or praedial

(benefits another piece of land), the law prefers personal, because it’s less of
 a burden on the land.​

●​ Exception (Golden Rule of interpretation):​

If the wording of the servitude agreement is clear and specific, then it will be
enforced exactly as written – even if it puts a heavy burden on the servient land.​

●​ But: If the agreement is worded very vague and broad, courts will fall back on the
“in favorem libertatis” principle to prevent unfair burdens.​

●​ Example: In Fourie v Marandellas Town Council, the servitude said the holder could
use the land “as it may desire.” That was too broad, so the court limited it in favour of
the landowner.​

●​ Bottom line: Clear and precise wording = follow it strictly. Vague or ambiguous
wording = interpret in favour of the landowner.​

Effective use principle

●​ General idea: The servitude holder must be able to actually use the servitude
properly.​

●​ This means the servitude includes not only the rights written in the agreement but
also extra rights that are necessary for it to work (called baseline entitlements).​

●​ Example: If you have a servitude to fetch water from a well, you also have the implied
right to walk to the well – otherwise the servitude is useless.​

●​ Limits:​

○​ These extra rights can’t burden the land excessively.​

○​ The landowner and servitude holder can decide on the scope, but they cannot
agree to limit the basic rights needed to make the servitude effective –
otherwise it would be pointless.​

●​ Bottom line: The servitude holder gets all rights necessary for normal use, but must
still avoid unnecessarily harming the landowner’s rights.​

Civiliter principle (reasonable exercise)

 ●​ General idea: The servitude must be exercised reasonably, without placing an
unnecessary or unfair burden on the servient land.​

●​ This means:​

○​ The servitude holder can use their rights fully, but not in a way that is
excessive or gratuitous.​

○​ A balance must be struck:​

■​ Servitude holder: entitled to effective use.​

■​ Servient owner: entitled to use their land in any way that doesn’t
interfere with the servitude.​

●​ Examples:​

○​ A servitude holder cannot build big structures on the servient land unless that
was clearly agreed.​

○​ They can’t demand to move the servitude if it makes things harder for the
landowner.​

●​ Bottom line: The servitude must be used as lightly as possible on the servient
land, but the servient owner must also accept the burdens that are necessary for the
servitude to work.​

✅ In summary:
●​ In favorem libertatis: Assume no servitude unless proven; interpret servitudes
narrowly unless wording is crystal clear.​

●​ Effective use: The servitude holder must get all rights needed to actually use the
servitude.​

●​ Civiliter principle: The servitude must be exercised reasonably, balancing the

servitude holder’s needs with the landowner’s rights.
●​

Praedial
●​ Praedial: two pieces of property (one being the dominant tenement (benefits from
the servitude) and the other being servient tenement (burdened by the servitude)
 ○​ E.g Farm A has a dominant servitude on Farm B, Farm A can obtain wood
and crops from Farm B
○​ The servitude holder is always the dominant
○​ Can exist no matter who the owner is
●​ Requirements
○​ At least two tenements
○​ Utility (utilitas) (servient tenement must add to the value of the dominant
tenement) (e.g Farm A (dominant) gains water from Farm B)
○​ Permanent basis (perpetua causa) (e.g the water supply must exist forever,
if it were to dry up indefinitely the servitude would lapse)
○​ Vicinity (vicinitas) (more relaxed) two pieces of land do not need to be
adjacent or in close proximity in order to form a valid praedial servitude
○​ No servitude can be on one’s own property (the owner of a thing already
has the right to use and enjoyment, servitude is unnecessary)
○​ No servitude of a servitude (owner of dominant cannot allow others to enjoy
the land of the servient tenement, the burden would increase on the servient
owner) (you cannot transfer more rights than you have derivative
acquisition)
○​ Passivity principle (servient tenement cannot be required to perform a
positive act)
■​ Lorentz case (1978): payments from dominant to servient turn the
servitude into a personal right (sets out the validity requirements)
■​ Van der Merwe case: can a positive obligation be a binding servitude?
(controversial conclusion)
■​ Schwedhelm case
●​ Praedial servitudes are indivisible [SELF STUDY] (the whole portion of land is
subject to the servitude unless the parties create a specified praedial servitude)
○​ Important in subdivisions
Indivisibility of a praedial servitude

●​ A praedial servitude (a right that benefits one piece of land over another) applies to
the whole of both properties – it can’t be split up or divided.​

●​ This matters when the land is subdivided (split into smaller pieces).​

Examples:

1.​ Right of way (path/road):​

○​ If the dominant land (the one with the benefit) is subdivided, each new piece
gets the right of way.​

○​ If the servient land (the one burdened) is subdivided, the servitude applies
across all the new subdivisions – unless the servitude was originally
written to apply to only a specific path.​
 2.​ 👉 Problem: If a big dominant land is split into many smaller plots, each new plot
gets the right of way, which could overload the servient land. That’s why careful
drafting of the servitude is crucial.​

3.​ Water rights:​

○​ If the servitude allows drawing a fixed amount of water per day, subdividing
the dominant land does not increase the total amount – the right stays the
same overall.​

✅ In short: A praedial servitude stays attached to the whole property, even after
subdivision. Rights like a path may multiply across subdivisions, but fixed-quantity rights (like
water) do not increase.

Types of praedial servitudes [SELF STUDY]

Praedial servitudes (types)

Praedial servitudes are unlimited in number, but the law recognizes some common types.
They are grouped into rural and urban servitudes.

●​ The difference depends on the use of the land, not where it is located:​

○​ Rural servitudes = land used for farming/agriculture.​

○​ Urban servitudes = land used for non-farming purposes (e.g. residential,

commercial, industrial).​

●​ Some servitudes can be both rural and urban.​

Examples of Rural Servitudes

1.​ Rights of way​

○​ Right to walk, drive vehicles, or move cattle across another’s land.​

○​ If cattle may graze while passing, it’s called a trek-path servitude.​

○​ The path can be either specific or general.​

 2.​ Water servitudes​

○​ Rights to:​

■​ Draw water from another’s land.​

■​ Channel water through furrows or pipes.​

■​ Water cattle.​

■​ Discharge or store water.​

3.​ Grazing servitudes​

○​ Right to graze cattle on another’s land.​

○​ If a fixed number of cattle is stated, other servitudes may be granted as long

as the first one is not harmed.​

○​ If no number is fixed:​

■​ The servient owner must allow reasonable grazing for the dominant
land.​

■​ The dominant owner cannot exclude the servient owner from grazing
some of their own cattle.​

Examples of Urban Servitudes

1.​ Servitudes of light and view​

○​ Right to prevent buildings or trees on the servient land that would block light
or view.​

○​ Often takes the form of preventing the servient owner from raising building
heights.​

2.​ Building-related servitudes​

○​ Right to insert beams into another’s wall or to have windows/openings in it.​

○​ Right to prevent or require certain types/heights of buildings.​

3.​ Support servitudes (oneris ferendi)​

 ○​ Right to have your building supported by a neighbour’s wall.​

○​ Usually reciprocal: both must keep their walls in good order.​

4.​ Encroachment servitudes​

○​ Right to build over or into a neighbour’s property (e.g. balcony, verandah,

signboard, or drainage pipe projecting into their land/airspace).​

✅ In short:
●​ Rural servitudes: way, water, grazing.​

●​ Urban servitudes: light, view, building rights, wall support, and encroachments.​

●​ The rural/urban distinction depends on use of the land, not its location

Exceptions to Passivity Principle

●​ Can instruct that the servient not build higher than a certain amount (servitus altius
tollendi)
●​ If there is a wall on the servient land, the owner of the servient land must keep the
wall in a good state of repair (servitus oneris ferendi) [Wiese]

Van der Merwe v Wiese (praedial servitudes)

●​ In common law it says that a servitude (a right over someone else's land) doesn’t
usually require someone to do anything, but only to allow something to be done or to
not do something themselves.
○​ This rule is helpful in understanding what a servitude is and deciding whether
an agreement should be classified as one.
●​ However, this principle does not mean that a contract which places an obligation to
do something (like deliver water) and which binds future owners of the land is
automatically invalid.
●​ In the case being discussed, the plaintiff wanted the defendant to provide 200 gallons
of water daily.
○​ This was based on a long-standing agreement made by their respective
predecessors.
○​ The agreement was registered in their title deeds (meaning it was formally
recorded), and it was supposed to apply to future owners too.
○​ The agreement also required the original landowner (defendant’s
predecessor) to build and maintain a pipe for the water.
 ●​ The question before the court was whether the maintenance of the pipe considered a
servitude
○​ Referred to the exceptions of the passivity principle
●​ The court found that the passivity principle is just a guideline, a more practical
approach and it is easier to require the servient tenement to maintain their own
property rather than to have the dominant landowner
○​ Van de Merwe is obliged to maintain the pipe
○​ The court disagreed with the defendant. It ruled that the argument was wrong
and should be dismissed, meaning the plaintiff could proceed with their claim.

Schwedhelm v Hauman (praedial servitudes)

●​ The plaintiff said in his declaration that he owned the rest of a farm called Farm X,
and that the defendant owned Portion 4 of that same farm.
○​ The defendant got this land from someone named E, who had originally
bought it from the plaintiff.
●​ The plaintiff then explained that in the title deed, there was a condition that allowed
the plaintiff to draw water from a dam on the defendant’s property. In return, the
plaintiff would pay £1 per month. The condition also said that the defendant must
provide and maintain things like a windmill and pipes to carry the water to the
plaintiff’s land.
○​ The plaintiff claimed he had asked the defendant to honour this condition, but
the defendant refused.
●​ The plaintiff was now suing for specific performance or for damages
●​ The defendant argued that the lawsuit was invalid because the plaintiff was trying to
say the defendant was automatically bound by this obligation just because he bought
the land from E.
○​ The defendant admitted he was bound to allow the water to be drawn (i.e.,
that part of the agreement was valid), but he argued that being required to
actively install and maintain equipment (like the windmill and pipes) was not a
valid servitude under the law and therefore not binding on him.
●​ The court found that servitude operate under Roman Dutch law and under that and
the passivity principle is a rule which cannot be relaxed and is absolute (unless they
are part of the exceptions)
○​ In terms of the servitude the defendant is not obliged to
○​ But in terms of the contract btw the parties, the defendant is obliged to the
positive obligations
○​ The obligation is in terms of personal rights and not real rights

**** use both cases (Wiese and Schedelm) in terms of passivity principles, BUT
Schwedelm is more correct due to full bench and more accurate engagement with the
requirements of praedial servitudes*****
Personal
●​ Personal: the servitude holder is not a dominant but a natural person/juristic person
(still a limited real right)
○​ It attaches to the person of the servitude holder and cannot be transferred
(s66 of DRA) (cannot be alienated)
○​ A servitude that has lapsed it must be removed from the title deed
●​ The requirements of a personal servitude are the same as a praedial except:
○​ Can be held for a max period of 100 years (applicable to juristic persons)
○​ Can be in regards to movables or immovables
Types of Personal Servitudes

●​ Usufruct: the right to use and enjoy another’s property and the right to draw fruits
without destroying or wasting the property
○​ Civil fruit = money from renting/leasing something
○​ can exist in movable, immovable property and incorporeals
●​ Use: has the right to use and enjoy another’s property but is limited in drawing the
fruits of the property
○​ E.g the servitude holder may only take fruits that are necessary for their daily
needs but cannot sell the fruit to third parties like usufruct
○​ Cannot lease the property to other people, can only use what is necessary for
their needs
○​ Exception (Voet): if there is space on the property they can rent out that
property but they cannot leave the space
●​ Habitation: has the right to live in the house without changing the nature or state of
the property and are not entitled to any fruit of the land
○​ However there is no limit to the leasing of the home for personal gains
Legislation
●​ Deeds Registration Act
○​ S 16 and 63(1)
○​ S 65: personal servitudes of land must be registered in terms of the title deed
to be valid (must contain a description of the land)
○​ S 66: no personal servitude may extend beyond the lifetime of the registered
personal servitude holder and are incapable of being transferred to another
person
○​ S 68: a personal servitude has lapsed, it must be cancelled in terms of the
title deed

Hendricks v Hendricks
●​ The appellant attempted to evict her former daughter in law (first respondent) in
terms of PIE as the appellant had the right to habitation
●​ Can a habitator evict someone from their land?
○​ The appellant was verbally abused and mistreated by the respondents,
leading to the interdicts and eviction orders
●​ The appellant had the right to habitation while her son (second respondent) was the
registered owner of the house
○​ The court ruled that the right to habitation is a limited real right
○​ Ownership is the most comprehensive real right while a limited real right limits
ownership is it still absolute on third parties
○​ A habitator may evict the land owner if her right to use and enjoy the land
was frustrated (was verbally abused and mistreated)
●​ The first respondent still requires the consent of the appellant due to her habitation
rights
○​ On these grounds the court granted the order of eviction
○​ In spite of ownership right? Yes,

Kidson v Jimspeed
●​ Mr Kidson had right to habitation on the land while Mr Jimspeed was the owner
○​ It was inhabitable so the Kidson’s moved on
○​ Jimspeed had sold the land to new owners and had destroyed the Kidson’s
former home
●​ The Kidson’s returned and claimed that the Jimspeed’s destroying of their home
infringed in their right to habitation and want Jimspeed to rebuild their home and to
enforce their right against the new owner
○​ Jimspeed argued that they had forfeited their right to habitation due to them
leaving and the servitude was extinguished (the home was destroyed)
○​ The new owner claimed that they were not bound due to them not knowing
about the servitude
●​ The court held that:
 ○​ The servitude was still present in the title deed and was not extinguished in
terms of s68 of the DRA (the new owner not knowing of the servitude is
irrelevant, it was present on the title deed)
○​ The Kidson’s did not abandon their land and did not show that they wanted to
extinguish the servitude (were not away from the land long enough)
○​ The destruction of the house does not mean the servitude was extinguished,
the servitude to the house was in connection with the land (principles of
original acquisition) (the object of the servitude was the land, not the house)
○​ The Kidson’s cannot force the Jimspeed’s or the new owners to rebuild
because of the passivity principle (absolute right in terms of Schwedehelm)

Creation of a Servitude
●​ Applies to both praedial and personal servitudes
●​ Land:
○​ Deeds Registration Act (s16 and s63(1))
○​ Alienation of Land (s2(1)): no alienation of land shall be of any force or effect
unless it is reduced to writing (including servitudes)
●​ However, there are cases where a servitude agreement is signed by both parties but
not registered
○​ When the land has been sold to another person and a servitude agreement
has been created (praedial), can the new owner be bound to this agreement if
it was not registered
○​ Doctrine of Notice/Knowledge: yes, the new owner can be bound to the
servitude agreement

Grant v Stonestreet
●​ There were various farms (Nooitgedacht, Navarre, San Gabriel) next to the
Heldeberg stream
○​ The previous farm owners created a servitude agreement btw one another in
terms of the water that flowed btw the farms
○​ Each farm could draw water from these ‘furrows’ on different days of the week
○​ This agreement was never registered
●​ The appellant and the defendant are the new owners of the farms
○​ The appellant had later acquired knowledge of the servitude agreement from
the other farm owners
○​ The appellant had constructed dams btw the farms which led to reduced
water going to the other farms (including the defendant)
●​ Must all of the owners have had knowledge of the agreement or is it sufficient for the
current owner to know (the scope of the doctrine of knowledge btw owners)
○​ It is irrelevant that the previous owners did not know
○​ Mr Grant as the current owner knew of the agreement prior to the registration
of the land
○​ Him using the dams frustrates the servitude of the other owners
 ○​ The doctrine of knowledge binds the owners to the servitude if they knew of
its existence (even if it was prior to the registration in their name)
■​ Must be actual or constructive (circumstances point to having
known)

Wahloo Sand
●​ Codified doctrine of knowledge and its application
●​ The appellant and the second respondent were created a servitude agreement of
right of way but before it could be registered the second appellant sold the land to the
first respondent
○​ At the time of the case, the first respondent knew of the agreement but the
land was not registered in his name
○​ The first respondent is refusing to co-operate with the appellant
○​ At the time, the land was not registered in the name of the first respondent
●​ Doctrine of knowledge does not apply to a party that has not been registered as the
owner prior to the knowledge of the servitude agreement
○​ However, ‘first in time, stronger in law’ (prior in tempore, potior in iure) may
apply in this instance
■​ The registration of the land must be created before the servitude
agreement if created
○​ w/o registration, the servitude agreement is just a personal right and not a
limited real right
○​ The second respondent created two similar rights with respect to the involved
parties (the servitude agreement and the registration of land)
■​ The right that existed first (servitude agreement) is the one enforced

Creation through Court Order

●​ Occurs in situations of necessity
●​ Requirements (types of right of way) (via ex necessitate)
○​ Permanent (ius viae plenem)
■​ Compensation is required
○​ Temporary (ius viae precario)
■​ Reduced in scope compared to the permanent right of way due to
cases of emergencies (e.g floods, fires)
■​ Compensation is not required
■​ Not clear in its use in SA law, not common/ necessary to get court
order for temporary (would need to anticipate natural disaster) (Van
Rensburg)
Van Rensburg v Coetzee
●​ The appellant’s farm was landlocked by the surrounding farms and previously had an
agreement with the Coetzee’s to drive through their farm land to reach the main road
from their farm
○​ The relationship soured btw the two and the Coetzee’s ended the agreement
for the appellant to drive through their land
●​ The appellant in the trial court went requested a court order which allowed them to
travel along the border of the Coetzee’s farm to reach the main road
○​ The question was whether the appellant was entitled to the right of way in
terms of necessity in the situation

●​ Requirements for necessity:

○​ Source of the right of way (when are you entitled)
■​ When you are landlocked and have no access to a public road
■​ Access to a public road ensures the use and enjoyment of the land
■​ Access to land but it is reasonably insufficient
○​ Nature
■​ Is it a permanent or temporary right of way?
■​ Will there need to be compensation
○​ Identifying servient land
■​ ‘The shortest route which causes the least damage’
■​ The interest of the landlocked owner and the burdened land owner are
balanced
■​ Will the land be extraordinarily damaged/ environmentally impacted
with a person driving through
○​ Route and width
■​ What is the route of the right of way and the width of the road
■​ Needs to be specified to be less burdensome to the servient land
owner
■​ The original route is the shortest route
●​ Van Leeuwen’s view: right of way of necessity must always be
along the border
■​ The court disagreed with Van Leeuwen’s view because it was too
costly to have the right of way along the border
 ○​ Compensation
■​ How much is the value to drive over a part of land (a market related
price)
■​ The court is awarding a right due to the expropriation
■​ Van der Waal (common law expropriation does not exist in SA) (later
in semester)
○​ Registration
■​ Not necessary to register a right of way on the title deed of the
servient land owner but is preferable to register on both sides
■​ It is not necessary to register as per the title deed due to the parties
not having an agreement for the right of way but through a court
order
○​ Procedure
■​ Action procedure is required to accommodate the dispute of fact in
issue
■​ Pleading all the requirements
■​ Raphulu: evidence that the parties tried to negotiate
●​ The court granted Van Rensburg’s order for the right of way to be along the border
(there was already a pre-existing order)
○​ However if there was no order it would have been in terms of the more
efficient route

Amendment to Servitudes
●​ When a right of way becomes so that it is an inconvenience to the servient or the
servitude holder
●​ Amendment is changing where the right of way is (but the other party does not want
to)
●​ Consensus (agreement) btw parties is the point of departure for amendments to
servitudes (Gardens Estate)
○​ Voet: a specified servitude cannot be unilaterally amended

Linvestment
●​ When there is no consensus, but the refusal from the one part is unreasonable
●​ Overruled Garden’s Estate
○​ Does not accurately reflect our common law
●​ Voet was incorrect in setting out the common law position
●​ Kemper Draft 1816 was considered (to understand Roman Dutch common law) to
change legal position
○​ Unilateral amendment is allowed if the party is materially inconvenienced and
it does not prejudice the other party)
●​ Circumstances are not static and change over time, unilateral amendments allow for
this
●​ Requirements
○​ Material inconvenience to servitude holder
 ○​ Relocation must occur on the servient land
○​ May not prejudice the servient land owner (balance)
○​ Owner of servitude holder is responsible for the costs and changes on title
deed (contrary to passivity principle)

******start with Linvestment then go to Garden Estate and the journals*****

Creation through Legislation

●​ How is a servitude acquired in these legislation? (self study)
●​ S6 Prescription Act (none use)
●​ Sectional Titles Act (reciprocal servitudes)
●​ Electricity Regulation Act (authorised persons)
○​ Person from Eskom being allowed to access your property to fix something
●​ National Environmental Management: Integrated Coastal Management Act (access
to coastal public property)
○​ Use of the beach without having to pay for it
A servitude can be created by way of prescription if the acquiror satisfies the require-
ments for acquisitive prescription stated in the Prescription Acts.209 Both statutes will be

applicable if the period of the prescription term commenced prior to 1 December 1970.210
This mode of acquisition applies almost exclusively to praedial servitudes since it is an
uncommon occurrence to acquire personal servitudes in this way211 and impossible to
acquire public servitudes through prescription.212 Section 6 of the Prescription Act 68 of
1969 states:
[A] person shall acquire a servitude by prescription if he has openly and as though he were
entitled
to do so, exercised the rights and powers which a person who has a right to servitude is
entitled to
exercise, for an uninterrupted period of thirty years or, in the case of a praedial servitude, for
a
period which, together with any periods for which such rights and powers were so exercised
by
his predecessors in title, constitutes an uninterrupted period of thirty years.213
The principles of original acquisition of ownership by way of prescription214 apply to the
acquisition of servitudes by way of prescription.215 However, for purposes of servitudes,

possession must take the form of quasi possessio. This means that the acquiror must exer-
cise the effective use entitlements of the servitude as if he/she is entitled thereto with the

intention to exercise it like the holder of the servitude.216 While theoretically possible, it
is highly unlikely that a negative servitude may be acquired by prescription.217
It is also possible to create new non-consensual servitudes through expropriation
without expropriating the servient land. However, these non-consensual servitudes must
not be confused with other non-consensual servitudes that are created ex lege in terms of
the common law218 or explicit statutory provisions.219 Accordingly to Van der Walt, the
fact that these non-consensual servitudes are acquired by operation of law does not imply
that they are expropriated, even if they are acquired by the state.220 Both the common law
and legislation often require that compensation be paid for these kinds of non-consensual
servitudes to mitigate the effect of these regulatory measures and save these measures
from constituting an arbitrary deprivation of property in terms of section 25(1) of the
Constitution.

The Sectional Titles Act221 creates reciprocal implied servitudes in favour of each sec-
tion over the common property and against any other sections capable of affording this

right.222 These implied servitudes include reciprocal servitudes of lateral and subjacent
support and for the passage or provision of certain utilities.223 These implied servitudes
are deemed to be incorporated in the title deeds of the affected sections224 and afford the

owners of these sections reasonable access to the affected sections to install new con-
duits or conduct maintenance and repair works.225 Sectional owners are also entitled to

the ancillary servitudal rights that may be reasonably necessary for the effective use of
these implied servitudes.226 The Act further provides that sectional owners may, by
special resolution, direct the body corporate to create further servitudes that benefit or
burden the sectional title scheme.227
The Legal Succession to the South African Transport Services Act228 affords Transnet
Freight Rail and the Passenger Rail Agency of South Africa (PRASA) the right to enter
property to determine whether the land is suitable for the construction of a new railway
or the deviation of an existing railway if either of these enterprises are contemplating the
expropriation of property;229 or to carry out excavations for the erection of poles or the
laying of lines or underground connections in order to construct telecommunication and
electricity supply networks on and between any of the premises that it occupies.230
The National Water Act231 was enacted to ensure that the scarce supply of water in

South Africa is used among other things to meet the needs of present and future genera-
tions, to promote equitable access to water; and to redress the result of past discrimina-
tory practices.232 The Act establishes a regulatory framework for obtaining access to and

rights over land in three parts.233 Part 1 empowers an authorised person234 to enter or
cross property to conduct routine inspections of the use of water;235 undertake necessary
works and perform various maintenance activities;236 and investigate various matters
pertaining to the implementation of the Act.237 Part 2 affords an authorised person the

right to claim238 or amend an existing servitude239 of abutment,240 aqueduct241 or

submer-
sion242 in terms of a certain procedure.243 An authorised person may claim any of these

servitudes as either a praedial or personal servitude244 and may claim the servitude over
an existing waterwork.245 A high court has the power to determine and award246 just and

equitable compensation247 for the creation of such a servitude. Once awarded the servi-
tude, the holder has the right to access the land248 and expansive effective use rights that

must be exercised in a civiliter manner.

249 However, the holder of the servitude is also

under an obligation to maintain the servitude area and effect repairs to the waterworks
and access roads during its operation250 and to conduct reasonable rehabilitation of the
land upon termination.251 Part 3 affords the state and a water management institution the
right to retain ownership of a waterwork that was bona fide erected on someone else’s
land252 and the right to remove that waterwork from the land.253 The Act creates an
explicit exception which permits the transfer of personal servitudes in waterworks held
by the Minister of Water Affairs or a water management institution.254
The Electronic Communications Act255 establishes a regulatory framework for the
provision of electronic communication in the public interest of promoting among
other things the convergence of various information technology sectors; and universal
provision, connectivity and access to open, fair and non-discriminatory electronic com-
munication networks- and services.256 The Act empowers the Minister for Communica-
tion to develop a policy for the rapid deployment and provisioning of electronic

communications facilities.257 The Independent Communications Authority of South

Africa (ICASA) must then prescribe regulations that establish procedures and processes

for resolving disputes that may arise between a landowner and an electronic communica-
tions network service licensee.258 In this regard, the Act affords a network service licen-
see three important rights.259 First, the right to enter any land, railway or waterway.260

Second, the right to construct and maintain an electronic communications network or

facility on any land, railway or waterway.261 This right has three ancillary rights, namely
the right:
(a) to construct and maintain pipes, tunnels or tubes under any street;262
(b) to erect and maintain a gate in a fence that would otherwise preclude the licensee
entry or inconvenience the licensee’s right to enter;263 and
(c) to fell or prune any tree or vegetation that obstructs or interferes with the operation
and maintenance of an electronic network communications network or facility.264
Last, a network service licensee has the right to alter an electronic communications
network or facility by attaching wires or struts to any building or structure, or remove

such network or facility.265 Any alteration or removal may be necessitated by a misalign-

ment or an uneven surface, or the commencement of building works by a local authority

or a private person.266 In exercising all these rights the licensee must have due regard ‘to
applicable law’267 and the environmental policy of South Africa.268
The object of the Electricity Regulation Act269 is among other things to achieve the
development and operation of electricity supply infrastructure in South Africa and to
facilitate universal access to electricity.270 To this end section 22(1) empowers an author-
ised person to ‘at all reasonable times’ enter271 a premises where electricity is supplied

(a) to determine the quantity of electricity consumed;

(b) to inspect the ‘lines, meters, fittings, works or apparatus’ that belong to the licen-
see;272 or

(c) to remove any of these auxiliary things where the electricity supply is no longer
required or where the licensee may terminate the supply.
This includes the right to do whatever is necessary to carry out its licenced activities
‘over, in or along roads or streets and associated infrastructure’.273 However, in doing so a
licensee must comply with all applicable laws and by-laws and complete its works
within a reasonable time.274 The licensee has an obligation to repair any damage caused
by the entry, inspection or removal of the auxiliary things or compensate the owner of the
premises.275 Section 23(1) creates an exception to the principles of accessio in that none of

the auxiliary things that are attached to the land or premises of an owner or the munici-
pality will become their property.276 These auxiliary things may therefor not be attached

and sold in execution of debt or be subjected to any insolvency or liquidation proceed-

ings; not be subjected to the landlord’s tacit hypothec;277 and only be acted on with the

written consent of the licensee.278

The National Environmental Management: Integrated Coastal Management Act279 was
enacted among other things ‘to secure equitable access to the opportunities and benefits
of coastal public property’.280 The Act281 affords every natural person reasonable access
to coastal public property and the right to use and enjoy that property provided that
he/she does not adversely affect the rights of the public to use and enjoy the property;282
hinder the state in the performance of its duty to protect the environment;283 and
cause an adverse effect.284 To this end, municipalities whose area of jurisdiction include
coastal public property had to designate strips of land for this purpose285 which would
automatically be subject to a public servitude.286 The designation of this public servitude
takes the form of an expropriation that will require the payment of compensation.287

Creation through immemorial use (self study)

Vetustas
●​ If members of the public have used land in a certain way for certain cultural or
religious practices then the use of the land is considered lawful
○​ Considered a public servitude
In Germiston City Council v Chubb and Sons Lock and Safe Co (SA) (Pty) Ltd110 the former
Appel-
late Division of the Supreme Court confirmed,111 laid down the principle that once a local

authority established its statutory authority to act in a way that would interfere with
private rights, the burden shifted onto the plaintiff to prove that this authority was
carried out negligently and that the damage could have been avoided if the local authority
had taken ‘reasonable and practicable preventative measures’.112
The principles do not apply if the landowner acquired a right to change the natural
flow of water through ancient custom (vetustas) or prescription. The distinction is that
the owner who acquired the right to maintain a long-standing change in the natural flow
of water through prescription has a right to build or uphold the building works, whereas
the notion of immemorial user merely creates a rebuttable presumption that he/she is
entitled to that use. The owner will escape liability for damage if the works that interfere

with the natural flow of water had been constructed by other persons than him-
self/herself, over whom he/she had no control and without his/her knowledge and con-
sent, and that he/she could not reasonably have been aware of the nuisance that it

created.

Remedies
●​ Actio confessoria
○​ Used by a servitude holder where the servient land owner is not allowing for
the servitude to be used and enjoyed fully
○​ Court order will allow the servitude holder to enjoy the servitude in terms of
the applicable entitlements
●​ Actio negatoria
○​ Someone uses the land of an owner as if they are entitled to a servitude when
they are not
○​ Can be used by the land owner to prevent the use of their land unlawfully
●​ Interdict
●​ Mandament van spolie
○​ Quasi possession is maintained
***** mixture of Module 7 and Module 8

Termination
●​ Agreement (s68 (personal) and 76 (praedial) of DRA)
○​ Both the servitude holder and the servient land owner agree to the
termination
○​ Must be confirmed in the title deed of the servient properties land
●​ Merger
○​ Holder of the servitude acquires the servient land
●​ Loss of Utility
○​ Requirement that the servitude must provide a benefit
○​ If there is no benefit on a permanent basis, then there is no servitude
●​ Passage of time or Fulfillment of a Condition
○​ Stated in the original agreement (e.g. servitude is fixed to the specific owner)
●​ Expropriation
○​ The state would have to compensate
 ●​ Abandonment (Kidson)
●​ Prescription (none use) (Kidson)
●​ Destruction (Kidson)
●​ Discretion of Courts
●​ Death
●​ Cancellation

Journal

Van de Waal
Praedial Servitudes (Van de Merwe)
●​ Praedial servitudes
●​ Situations w/ positive obligations are not ideal
●​ Said that the passivity principle should be relaxed in these cases and argued that this
should be done in legislation
○​ Add to the list of exceptions for the passivity principle

Personal Servitudes (Kidson)

●​ The object of the servitude is the land (Sonnekus)
○​ Other common law others say the object of the servitude is the building
○​ Conflicting and different opinions on the object of the servitude
●​ Approach to object of servitude must be in terms of the Constitution
○​ There is a single system of law and it must comply with the Constitution
(supreme law of the land)
○​ Steers what should be followed and what judgement should be made
●​ s26(1) right to have access to adequate housing should have steered the judgement
of Kidson
○​ Agreed with the decision that the servitude still existed in terms of common
law
○​ Criticised the court for not engaging with the Constitution (left room for
undermining the Constitution)
○​ The court relied on the pre-constitutional common law and did not engage
with the Constitution effectively

Servitude by Court Order

Raphulu (Van Rensburg)

●​ A court would be unwilling to grant a right of way to someone if they have not tried
to negotiate
○​ Involvement of the courts is a last resort and the courts encourage parties to
solve the problem of their own
 ●​ Van Rensburg is an example of the party making an attempt to solve the issue

Amendment to Servitudes

Van der Walt (Linvestment)

●​ In favour to the Linvestment judgement
●​ Common law from other countries is not precedent (Kemper Draft)
●​ Garden’s Estate is more aligned with the current common law perspective but was
undesirable
○​ The court in Linvestment unintentionally developed the common law
●​ Linvestment does not apply to other circumstance (unreasonableness must be
present)
○​ Van der Walt calls for legislation to allow for unilateral amendment in varied
cases