Clever Garikai Tsikwa v Stephen Nyagura and Molly Laurencia Tanyaradzwa and The Registrar of Deeds N.O

The applicant was allocated Plot 4 of Rufaro Farm (35 hectares) in 2006 under the Land Reform Programme in Zimbabwe and obtained a certificate of occupation. The plot is landlocked and inaccessible from the main Rusape-Nyanga Road. The first and second respondents are owners of neighbouring Plot 2 under Deed of Transfer 03062/2004. To access his plot, the applicant had to pass through either Plot 1 or Plot 2. The existing route through Plot 1 was problematic as it passed through the owner's doorstep and flower beds, causing undue hardship. Plot 1 was subsequently fenced, barring passage. The respondents also locked their gate on Plot 2, rendering the applicant's property completely inaccessible. The applicant sought a servitude of right of way through Plot 2 (the respondents' property), offering to move the gate inwards by 6 meters at his own expense to allow access via the fireguard. The parties failed to resolve the matter amicably.

• Whether the applicant is entitled to a servitude of right of way over the respondents' property
• Whether the applicant's claim is based on necessity or mere convenience
• Whether all the legal requirements for establishing a praedial servitude of right of way have been met
• Whether passage through Plot 1 constitutes adequate existing access that would defeat the necessity requirement

1. The applicant was granted a right of way to Plot 4 Rufaro Farm through Plot 2 of Rufaro Farm held by the first and second respondents under Deed of Transfer Number 03062/2004. 2. The first and second respondents were ordered to allow the applicant, at his own expense, to move their gate inwards by 6 meters to allow access to the fireguard and thence to Plot 4, for the purpose of accessing the main Rusape-Nyanga Highway. 3. The route is to be cleared at the applicant's own expense. 4. Each party to bear its own costs.

A servitude of right of way based on necessity will be granted where: (1) the dominant tenement is landlocked; (2) there are two separate tenements owned by different persons; (3) both properties are immovable land; (4) the properties are neighbouring; (5) the utility is capable of being transferred; and (6) the benefit is permanent in nature. Necessity for a right of way means it must be the only reasonable sufficient means of gaining access to the landlocked property, not just a convenient means. However, where an existing route is inadequate, causes undue hardship to both the applicant and the property owner through which passage occurs, and has become unavailable (such as through fencing), an alternative route may be found to be necessary rather than merely convenient. The right of way sought must be the only reasonable and feasible route in the circumstances. A servitude of right of way arises by operation of law once the requirements are met, and courts have jurisdiction to direct the specific route to be traversed where parties cannot agree.

The court observed that granting multiple rights of way to access a single landlocked property would cause chaos and lead to onerous servitudes being imposed on all neighbouring properties, not out of necessity but out of choice and convenience. The court noted that it would not be proper to grant several rights of way where an applicant already has access without objection, but distinguished this from situations where the purported existing access is inadequate or unavailable. The court also observed that the purpose of a servitude of right of way is to allow a landlocked property owner to access his property through a reasonable route, and that a servitude does not take away or diminish the real right of the owner of the servient tenement. Mwayera J noted that there was no justification for awarding costs given the background and circumstances of the matter, suggesting that the dispute arose from genuine difficulty in accessing landlocked property rather than unreasonable conduct by either party.

This judgment clarifies the distinction between convenience and necessity in servitude of right of way applications in Zimbabwean property law. It establishes that where an existing route is not merely inconvenient but actually inadequate and causes undue hardship, or where such route becomes unavailable (such as through fencing), a court may find that an alternative route is necessary rather than merely convenient. The case reinforces the principle that necessity means "the only reasonable sufficient means of gaining access" and demonstrates how courts will assess practical feasibility and reasonableness when evaluating competing routes. The judgment also clarifies that landlocked property created under land reform programmes is subject to the same servitude principles as other properties, and provides guidance on the six requirements that must be met for establishing a praedial servitude of right of way.