Linvestment CC v Hammersley

The appellant was the registered owner of Portion 136 of the Farm Driefontein, subject to two registered servitudes of right of way in favour of the first respondent's adjacent property. These servitudes were specifically defined and registered against the title deeds, creating a continuous strip of land over which rights could be exercised. The appellant gave notice to the respondent of its intention to amend the course of the servitudes to a different route over its property, offering to pay all costs including survey, consents, registration and construction of roads. The first respondent refused to consent. The appellant alleged this refusal was unreasonable, that the present servitudes caused undue inconvenience, and that the proposed substitution would not excessively inconvenience the respondent. The parties agreed these factual averments were not in dispute. The issue for determination was whether, as a matter of law, the appellant was entitled to a declaration permitting it to substitute the proposed servitude route for the existing route without the respondent's consent.

• Whether the owner of a servient tenement can unilaterally change the route of a defined right of way registered against the title deeds of the property
• Whether the common law distinction between servitudes created simpliciter (in general terms) and servitudes specifically defined should be maintained
• Whether the common law should be developed under section 173 of the Constitution to permit relocation of defined servitudes in certain circumstances
• Whether existing precedent in Gardens Estate Ltd v Lewis (1920 AD 144) correctly reflected the Roman-Dutch law as received at the Cape

The appeal was upheld. The order of the High Court was set aside and replaced with a declaration that if the owner of a servient tenement offers a relocation of an existing defined servitude of right of way, the dominant owner is obliged to accept such relocation provided that: (a) the servient owner is or will be materially inconvenienced in the use of his property by maintaining the status quo; (b) the relocation occurs on the servient tenement; (c) the relocation will not prejudice the owner of the dominant tenement; and (d) the servient owner pays all costs attendant upon such relocation including those involved in amending the registration of title deeds. Each party was ordered to pay their own costs in both courts.

The owner of a servient tenement may unilaterally relocate a defined servitude of right of way, notwithstanding the absence of consent from the dominant owner, provided that four conditions are satisfied: (1) the servient owner is or will be materially inconvenienced in the use of his property by maintenance of the existing servitude; (2) the relocation occurs on the servient tenement; (3) the relocation will not prejudice the owner of the dominant tenement; and (4) the servient owner pays all costs attendant upon such relocation including costs of amending the registration of title deeds. This represents a development of the common law under section 173 of the Constitution in the interests of justice.

The Court made several non-binding observations: (1) The rigid enforcement of servitudes when it benefits neither party but operates prejudicially on one seems indefensible. (2) Servitudes are often created by preceding generations in different times and environments, and present owners should not be entitled to rely on summum ius from contracts to which they were not privy where there is no rational ground for doing so. (3) Properly regulated flexibility will not set an unhealthy precedent, encourage abuse, cheapen the value of registered title, or prejudice third parties. (4) The concepts of convenience and prejudice can fairly regulate the respective interests of parties even where the original contracting parties still own the properties, if circumstances have changed and the dominant owner no longer possesses any acceptable reason to subject the servient property to strict terms. (5) The distinction between servitudes of aquaeductus (water rights) and rights of way is a distinction without a difference for purposes of relocation principles. (6) Section 25(1) of the Constitution (property clause) was not violated as the appellant acquired property subject to the servitude and was deprived of nothing by proper interpretation of the servitude.

This is a landmark judgment in South African property law as it fundamentally altered the law relating to relocation of defined servitudes. The case represents a significant exercise of the court's power under section 173 of the Constitution to develop the common law in the interests of justice. It overturned or significantly qualified the long-standing principle in Gardens Estate Ltd v Lewis that defined servitudes could only be altered by mutual consent. The judgment demonstrates the Court's willingness to engage in comparative legal analysis, examining Roman-Dutch legal history and modern civil law systems, to ensure South African law remains responsive to contemporary needs. It balances the sanctity of registered property rights with practical considerations of land use and development, establishing that flexibility in servitude relocation can coexist with adequate protection for dominant owners. The judgment is also significant for its methodology, showing how historical legal sources (particularly the 1820 Kemper draft) can inform understanding of the common law and how comparative law can guide its development.