The City of Gweru (applicant), as the local authority for Gweru, became aware that the National Railways of Zimbabwe (NRZ/respondent) was leasing land within its municipal area to third parties (mainly small-scale traders and vendors) for commercial use. The applicant contended this use violated the terms of a railway servitude for which the land was reserved. The matter came to light when one of NRZ's lessees, Edson Gapare, applied for a shop licence. Upon inspection, city officials determined the shop was on a "railway servitude" and cancelled the temporary licence and issued a demolition order. Gapare unsuccessfully challenged this in the Magistrates Court. A subsequent survey by the applicant revealed eight other lessees had entered into similar leases with NRZ for various commercial purposes including car sales, car wash facilities and retail activities. The applicant then sought both prohibitory and mandatory interdicts to restrain NRZ from leasing the land and to compel compliance with municipal laws. NRZ opposed the application, asserting it was the registered owner of the land and entitled to deal with it as it deemed fit, and contended that the applicant had itself allocated portions of the same railway corridor to vendors for commercial use.
The application was dismissed with costs on the ordinary scale.
An applicant seeking a final interdict based on an alleged servitude must prove the existence of a clear right by producing the requisite documentation establishing the servitude's existence, nature, scope and terms. Bald averments of a servitude's existence, without supporting documentary evidence such as the relevant deed or statutory instrument, are insufficient to establish the clear right required for granting a final interdict. Where a party alleges the existence of a servitude and its breach, the onus rests on that party to prove both the existence and terms of the servitude in accordance with the general principle that he who alleges must prove. A court cannot interpret or apply the legal principles relating to servitudes in the absence of the foundational document setting out the servitude's terms.
The court made observations on several aspects of servitude law that would have been relevant had the foundational document been produced: (1) Different outcomes may ensue depending on whether a servitude is classified as personal or praedial; (2) With praedial servitudes, a presumption operates against their existence due to their onerous nature (citing Coetzee v Malan and Murray v Schneider); (3) Servitudes are generally interpreted restrictively with a view to limiting their extent; (4) The court must consider whether a servitude has been exercised civiliter modo (in the least burdensome manner); (5) Praedial servitudes must relate to a specific piece of land. The court also observed that the applicant's conduct in launching and persisting with the application, while unsuccessful, was not so remiss as to warrant costs on the superior scale, suggesting that not every failed application justifies punitive costs.
This case illustrates the critical importance of satisfying evidentiary requirements when seeking interdictory relief based on alleged servitudes. It reinforces the principle that a party alleging the existence of a servitude must prove not only its existence but also its precise terms through proper documentation, particularly where the servitude is registered. The judgment emphasizes that courts cannot interpret or enforce rights arising from documents not placed before them, and that bald averments without supporting documentation are insufficient to establish a clear right - the foundational requirement for any final interdict. The case also demonstrates the application of fundamental principles of the law of servitudes in Zimbabwe (which follows South African common law principles), including that servitudes are interpreted restrictively, that there is a presumption against their existence (particularly for praedial servitudes due to their onerous nature), and that they must relate to specific pieces of land. It serves as a reminder to litigants of their burden of proof obligations in civil matters.