Linvestment CC v Hammersley and Another (634/06) [2008] ZASCA 1; [2008] 2 All SA 493 (SCA); 2008 (3) SA 283 (SCA) (28 January 2008)

Linvestment CC v Hammersley and Another (634/06) [2008] ZASCA 1; [2008] 2 All SA 493 (SCA); 2008 (3) SA 283 (SCA) (28 January 2008)

The Supreme Court of Appeal held that the rigid enforcement of a defined servitude route is no longer justified in modern South African law. The court found that widespread international practice and comparative law favour a flexible approach, allowing the servient owner to relocate a servitude if the new route does not prejudice the dominant owner and the servient owner bears all attendant costs. The court exercised its power under section 173 of the Constitution to develop the common law, declaring that the dominant owner is obliged to accept relocation offered by the servient owner under specified conditions: material inconvenience to the servient owner, relocation occurring on the...

Citation
[2008] ZASCA 1
Parties
Appellant: Linvestment CC; Respondent: Bonnie Patricia Hammersley; Respondent: Hilton Hammersley
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 January 2008
Case Number
634/06
Procedural Posture
Civil Appeal / Appeal From High Court Judgment
Outcome
Appeal upheld. The order of the High Court is set aside and replaced with a declaration permitting relocation of the servitude under specified conditions.
Judges
Howie, Mthiyane, Heher, Combrinck, Kgomo
Legal Topics
Servitude Right of Way, Relocation of Servitude, Development of Common Law, Constitutional Property Rights
Land and Property Civil Procedure Servitude Right of Way Relocation of Servitude Development of Common Law Constitutional Property Rights

Case Brief

Summary, issues, holding and outcome

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Parties

Linvestment CC

Appellant

Bonnie Patricia Hammersley

Respondent

Hilton Hammersley

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment

Legal Issues

  1. 1 Whether the owner of a servient tenement may unilaterally relocate a defined and registered right of way servitude.
  2. 2 Whether the refusal by the dominant owner to consent to relocation is unreasonable under South African law.
  3. 3 Whether the common law should be developed to permit relocation of servitudes in appropriate circumstances.

Ratio Decidendi

The Supreme Court of Appeal held that the rigid enforcement of a defined servitude route is no longer justified in modern South African law. The court found that widespread international practice and comparative law favour a flexible approach, allowing the servient owner to relocate a servitude if the new route does not prejudice the dominant owner and the servient owner bears all attendant costs. The court exercised its power under section 173 of the Constitution to develop the common law, declaring that the dominant owner is obliged to accept relocation offered by the servient owner under specified conditions: material inconvenience to the servient owner, relocation occurring on the...

Court Disposition

Appeal upheld. The order of the High Court is set aside and replaced with a declaration permitting relocation of the servitude under specified conditions.

Orders

  • 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 by maintaining the status quo; (b) the relocation occurs...
  • Each party is ordered to pay its own costs in both courts.