Linvestment CC v Hammersley

The appellant, Linvestment CC, owned land burdened by two registered and precisely defined servitudes of right of way in favour of the first respondent’s adjoining property. The servitudes were registered by reference to surveyor’s diagrams and constituted a continuous access route. Linvestment sought unilaterally to relocate the servitudes to an alternative route on its own property, offering to bear all costs of relocation and registration. The respondents refused to consent. The appellant approached the High Court for a declaratory order permitting substitution of the servitude route, alleging that the existing route caused undue inconvenience to it and that the proposed route would not excessively inconvenience the respondents. The High Court held that relocation without mutual consent was not competent in law. Linvestment appealed to the Supreme Court of Appeal.

The appeal was upheld. The order of the High Court was set aside and replaced with a declaratory order permitting relocation of a defined servitude of right of way if specified conditions are met. Each party was ordered to pay its own costs in both courts.

This case is a landmark in South African property law as it develops the common law to permit unilateral relocation of defined servitudes under controlled conditions. It departs from long-standing authority, aligns South African law with comparative international trends, and illustrates the Supreme Court of Appeal’s use of s 173 of the Constitution to modernise Roman-Dutch common law in the interests of justice.