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South Africa decisions
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Xstream Holdings (Pty) Ltd and Others v Chicky Investments (Pty) Ltd and Another (2023/066319) [2023] ZAGPPHC 601 (21 July 2023)
Urgent interdict proceedings over a right-of-way servitude were struck from the roll because the court found the dispute was not urgent.
Snowy Owl Properties 284 (Pty) Ltd v Mziki Share Block Limited (886/2021) [2023] ZASCA 2 (19 January 2023)
The Supreme Court of Appeal held that the arbitration award does not sanction illegal activities, as it pertains to the reinstatement and maintenance of existing servitude roads, not the creation of new roads. The environmental objections raised by the appellant were considered and rejected during arbitration, and the evidence presented before the high court was merely a repetition of arguments already decided. The award is sufficiently clear, referencing documents and inspections attended by both parties, and the appellant is fully aware of the roads and obligations. Maintenance duties under…
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Morganambal Mannaru and another v Robert MacLennan-Smith and others (271/2021) [2022] ZASCA 137; 2023 (2) SA 150 (SCA) (24 October 2022)
The Supreme Court of Appeal held that the right of way servitude must be exercised in accordance with the civiliter modo principle, requiring a reasonable balancing of the rights of the dominant and servient owners. The erection of a gate across the servitude road, in the absence of an agreement to the contrary, is permissible provided it does not unreasonably interfere with the servient owner's rights. The high court correctly weighed the security concerns of the respondents against the appellants' access rights, ensuring that the appellants retained reasonable access to the servitude area.…
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Great Force Investments 124 (Pty) Limited v Surveyor-General, Cape Town and Others (4348/2013) [2015] ZAWCHC 127; [2015] 4 All SA 322 (WCC) (25 August 2015)
The court found that the Surveyor-General's decision to add Servitude Note 3 to Survey Diagram 1489/1999 was based on incorrect facts and unfounded assumptions, particularly the conflation of a 'farm road' with a registered servitude and the presumption of inaccuracy in older survey diagrams without proper basis. The decision lacked logic and rationality and was therefore reviewable on grounds of legality and rationality. The court further held that the applicant did not unreasonably delay in launching review proceedings, as it only became aware of the administrative action in December 2012 a…
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Jersey Lane Properties (Pty) Ltd t/a Fairlawn Boutique Hotel & Spa v Hodgson and Another (A5030/11) [2012] ZAGPJHC 86 (7 May 2012)
The court held that the strict interpretation adopted by the court a quo was inappropriate given the modern context of urban servitudes. The construction of the portico, while potentially intrusive, did not per se amount to an unreasonable exercise of rights under the servitude. The existence of factual disputes regarding the impact of the portico on the respondent's property and the pending municipal approval rendered the matter unsuitable for final determination on affidavit. A wide interpretation of the servitude, considering aesthetics, security, and local trends, was warranted. The matte…
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Johl and Another v Nobre and Others (23841/2010) [2012] ZAWCHC 20 (20 March 2012)
The servitude agreement grants the dominant owner a right of way across the servient property, without any express or implied restrictions on the servient owner's access. The respondents' refusal to provide the applicants with a remote device for the automatic gate constitutes an unlawful restriction and increases the burden on the servient property beyond the terms of the servitude. The respondents' attempt to transform the servitude area into a security buffer for their exclusive use is contrary to the servitude agreement and the principle of civiliter modo. The applicants are entitled to a…
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Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd (634/05) [2006] ZASCA 118; [2007] 2 All SA 567 (SCA); 2007 (2) SA 363 (SCA) (29 November 2006)
The Supreme Court of Appeal held that the holder of mineral rights is entitled, by virtue of a term implied by law, to conduct open cast mining when it is reasonably necessary to remove the minerals, provided that it is done in a manner least injurious to the interests of the surface owner. The principle of lateral or subjacent support, as a rule of neighbour law, does not automatically apply to the relationship between mineral rights holder and surface owner in South African law. The property should be considered in the context of the larger coal field, and the rights acquired include ancill…
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Transvaal Canoe Union and Another v Garbett and Another (3/92) [1993] ZASCA 114; 1993 (4) SA 829 (AD); [1993] 2 All SA 601 (A) (6 September 1993)
The Supreme Court of Appeal held that, under South African common law, the public's right to use a public river does not include an unrestricted right to portage canoes along privately owned riverbanks. Portage is not a necessary incident of navigation on a public river, especially where the activity is competitive canoe racing rather than mere recreational boating. The evidence showed that the portage sought by appellants involved significant encroachment and potential damage to private property, and was not confined to a reasonable or defined area. The relief sought was overly broad and not…
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