From here to eternity: does a servitude road last forever?

• Jurisdiction: South Africa
• Citation: (2000) 11 Stell LR 452
• Published date: 30 May 2019
• Author: R R M Paisley
• Date: 30 May 2019
• Pages: 452-479

From here to eternity: does a servitude road last forever?

2000 Stell LR 452

RRM Paisley *

LLB (Hons) DipLP PhD FSA (Scot) NIP

Solicitor and Lecturer, University of Aberdeen

CG Van Der Merwe

BA LLB BA (Horns) BCL LLD

Professor, University of Aberdeen

1. Introduction 1

De Kock v Hänel and ot hers 2 is one of those valuable decisions where not one but a

number of interesting questions on praedial servitudes arose for consideration. The

case was decided by Davis AJ sitting in the Cape Provincial Division. 3 First, the

court had to consider whether the terms of the grant of servitude road were so

ambiguous that extrinsic evidence could be allowed to determine the meaning

thereof. Secondly, the court was called upon to pr onounce on the effect of the sub-

division of the dominant land on the continued existence of the servitu de. Next, the

court considered the application of the principle that a praedial servi tude should be

exercised civiliter modo. Lastly, the utilitas requirement was tackled, p articularly the

question whether a subsequent lack of utilitas would result in the extincti on of the

servitude.

The multifaceted nature of the issue of utilitas requires that it is excluded from

the scope of this article. We shall examine only the first th ree of these matters

addressed by the court in this arti cle. In our evaluation of the case, reference wi ll be

made not only to the law of South Africa but also to Scots law as a related mixed

legal system also influenced by the writings of Voet and Grotius. 4

2. Facts and application

One of the major failings in the publi shed report of the De Kock case is the lack of a

sketch of the layout. To assist analysis of the case we have

* This article was prepared while Dr Paisley was a Research Fellow at the University of Stellenbosch

during August 1999.

2000 Stell LR 453

obtained further information from the Deeds Office 5 which has enabled us to

prepare such a sketch.

1 The authors thank Prof Douglas J Cusine, Aberdeen University, for his useful comments on an earlier

draft.

2 1999 (1) SA 994 (C).

3 1996-10-15 Case no 4921/95; 1996-10-16 Case no 6790/95.

4 For Roman-Dutch influence on the law of Scotland see eg Axis West Developments Ltd v Chartwell Land

Developments; Ltd, HL, 1999-07-15 GWD 32-1551; full transcript available from the House of Lords

website (http://www.parliament.the-stationaryoffice.co.uk/pa/Id199899/Idjudgmt/ jd/990715/axis.htm)

per Lord Clyde at 7 in the transcript; Burmah Oil Co (Burmah Trading) Ltd v The Lord Advocate 1963 SC

419; 1964 SC (HL) 117; [1964] 2 All ER 348. For a general overview see Cairns Importing Our Lawyers

from Holland: Netherlands Influences on Scots Law and Lawyers in the Eighteenth Century in Simpson

(ed) Scotland and the Law Countries 1124–1994 (1996) 136–153.

5 For this we must thank Jean Badenhorst from the firm of attorneys Miller, Gruss, Katz & Traub Inc.

(2000) 11 Stell LR 452

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The facts of the case were as follows: In 1963 erf 6 9, W elbeloond, was transferred

subject, inter alia, to a servitude that reads as follows: 7

“Subject and entitled to the servitude referred to in the endo rsement dated 25

November 1963 on the said deed of transfer No 9472/1949 reading: By deed of

transfer No 18896/1963 dated this day the existing road extending to a width of 1,89

metres on either side of t he line a b on diagram No 7437/49 annexed to certificate of

consolidated title No 9806 dated 10 July 1963 on erf No 9 Welbeloond sub-divided

estate measuring 1,7536 hectares now held under the aforesaid deed of transfer No

18896/1963 has been made a servitude road common to the aforesaid erf 9 and the

remaining extent of erf 3 Welbeloond sub-divided estate measuring 8498 square

metres held hereunder; as will more fully appear on reference to the said deed of

transfer.”

The effect of this wording was to constitute a servitude over an existing road

common to both sub-divided estates in favour of erf 9 agai nst the remainder of erf 3

and in favour of the remainder of erf 3 against erf 9. In the course of time both

these erven were sub-divided a number of times. From the sub-division of

remainder of erf 3 emerged erf 481 4 owned by the applicant and erf 10231 owned

by the first respondent who is married to the s econd respondent. The sub-division of

erf 9 resulted in erf 273 3 owned by the third respondent and erf 8522 owned by the

fourth respondent. All these properties were transferred subject to and entitled to

the servitude. 8

Disputes arose b etween the appl icant and the first and second respondents as to

the exi stence and proper manner of the exercise of the servitude. This caused the

applicant to apply for a declaratory order

2000 Stell LR 454

that the exi sting road servi tude referred to above and recorded in the title deeds of

erf 10231 did not confer any rights over his property. In the alternative the

applicant sought an order that the servitude over the applicant’s property did not

allow access from the first respondent’s pr operty over the applicant’s property i nto a

road known as Tamarisk Lane. The remaining respondents, who comprised

proprietors of subdivided parts of erf 9, were cited for their direct and substantial

interest in the subject matter, but did not oppose the relief sought. 9

In his founding affidavit, the app licant contended that the pu rpose of the

servitude road was to provide access to Welbeloond Road. 10 In his answering

affidavit, the second respondent refuted this. He pointed out that when he

6 The term “erf” denotes a plot of ground. The equivalent Scottish term is “feu”.

7 995I–J. The italics represent our emphasis.

8 996A–C.

9 996C–D.

10 996E.

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