Henri Smith v Victor Edward Mukheibir and Others

The appellant sold his member's interest in Henfri Beleggings CC to the first and second respondents for R405,000. The close corporation owned Erf 5027, which was a subdivision of the original Erf 4113. Before subdivision, Erf 4113 was subject to a reciprocal general servitude of road and route over Erf 4112 (owned by the third respondent), the route of which could be agreed upon from time to time by the registered owners. After subdivision, Erf 5027 retained this servitude in its title deed. The first and second respondents paid R236,546.14 but withheld the balance of R168,453.86, claiming they had to construct access to Erf 5027 at that cost because there was no reasonable access as warranted. They counterclaimed for this amount. The appellant instituted action for the balance and denied the counterclaim, arguing that Erf 5027 had a servitude entitling it to access over Erf 4112. A route had already been agreed upon for the original Erf 4113 before subdivision. The dispute centered on whether Erf 5027 could select an additional or different route over Erf 4112, separate from the existing route used by the remainder of Erf 4113.

• Whether the condition incorporated in deed of transfer no 70538/93 in respect of Erf 5027 (a portion of Erf 4113) confers on Erf 5027 as dominant tenement an enforceable right of road over Erf 4112 as servient tenement
• Whether subdivision of a dominant tenement entitles the subdivided portion to select an additional or different route over the servient tenement beyond that which existed before subdivision
• Whether a subdivision of a dominant tenement can enjoy greater servitudal rights than the original dominant tenement possessed before subdivision

The appeal was dismissed with costs.

When a dominant tenement subject to a servitude of road is subdivided, each subdivided portion retains the original servitudal rights but does not acquire any additional or enhanced rights. Mere subdivision of a dominant tenement cannot increase the number of roads or alter the route of an existing road over the servient tenement. Where a general servitude of road and route has been converted into a specific servitude by agreement on a particular route, that route can only be altered by mutual consent between the owners of the dominant and servient tenements. A subdivision of a dominant tenement cannot enjoy greater servitudal rights than those possessed by the original dominant tenement before subdivision.

The Court made observations about the general principles governing servitudes: (1) When a dominant tenement is subdivided, each portion retains the original dominant tenement's servitudal rights, and in the absence of any agreement to the contrary, each owner can trek over that portion of the original dominant tenement which, owing to the division, now lies between it and the servient tenement (citing Louw v Louw 1921 CPD 320). (2) A general servitude which refers to a future agreement regarding route envisages an initial general right which may be converted to a specific one by subsequent agreement (citing Nach Investments (Pty) Ltd v Yaldai Investments (Pty) Ltd 1987 (2) SA 820 (A)). (3) Even with a general servitude, the grantee may select a route but must do so civiliter modo (in a civilized manner, causing the least inconvenience to the servient tenement) (citing Kakamas Bestuursraad v Louw 1960 (2) SA 202 (A)).

This case is significant in South African property law as it clarifies the extent of servitudal rights following subdivision of a dominant tenement. It establishes that subdivision of a dominant tenement does not create additional or enhanced servitudal rights beyond those enjoyed by the original dominant tenement. The case provides important guidance on the interpretation of servitudes of road and route, particularly reciprocal general servitudes where routes are to be agreed upon. It reinforces the principle that once a route has been selected for a general servitude, it cannot be unilaterally changed, and that this limitation applies equally to subdivisions of the dominant tenement. The judgment protects servient tenement owners from expanded burdens resulting merely from subdivision of the dominant tenement.