Morganambal Mannaru and another v Robert MacLennan-Smith and others

The first appellant owned sections 1 and 2 of a sectional title scheme (1 Kings Avenue) and was also owner of the common property. The respondents owned adjacent properties (1B, 1C, 1D and 1E Kings Avenue). A road servitude existed over the appellant's property in favour of the respondents' properties, providing the only means of access to those properties. The servitude was registered against the respondents' title deeds but not the appellant's, likely due to conveyancing oversight. In May 2012, the parties agreed orally that the respondents could erect a temporary security gate across the servitude at their expense, with the appellants to have access on reasonable notice. In March 2013, the respondents requested permission to construct a permanent gate for security reasons, which the appellants declined. The relationship deteriorated and litigation ensued. The respondents sought an interdict preventing removal of the gate, a declaration of their right to construct and maintain a permanent gate, and an order directing registration of a Notarial Deed of Road Servitude. The appellants counterclaimed for removal of the temporary gate or transfer of the servitude for R300,000.

• Whether owners of dominant tenements are entitled to erect and maintain a gate across a servitude road on the property of the servient owner
• What principles govern the balancing of rights between dominant and servient owners in the exercise of servitudes
• The application of the civiliter modo principle to disputes concerning servitudes
• Whether the erection of a gate across a servitude road constitutes unlawful interference with the rights of the servient owner
• Whether a notarial deed of servitude should be registered where the servitude exists but was not registered against the servient tenement

The appeal and the cross appeal were dismissed with costs.

In the absence of an agreement to the contrary, whether the owner of a dominant tenement may erect a gate across a servitude road is determined by application of the civiliter modo principle, which requires a reasonable balancing of rights. The relevant inquiry is: (1) whether having or not having a gate is essential for effective use of the servitude - if so, the effective-use principle takes precedence; (2) if not essential, whether having or not having a gate was clearly foreseen and provided for in the servitude grant - if so, the consensual arrangement must be given effect; and (3) if neither essential nor explicitly provided for, the arrangement must be decided on the basis of reasonableness (the civiliter principle). Where a gate is permitted, the dominant owner must provide the servient owner with effective access through remote control devices, access codes and the like to ensure the servient owner's continued reasonable access and use. The civiliter principle requires that a servitude holder exercise the servitude so as to impose the least possible burden on the servient owner, balancing the servitude holder's right to effective exercise of the servitude with the servient owner's residual right to use the property insofar as it does not interfere with legitimate exercise of the servitude.

The Court noted without deciding that should a permanent gate fall within the definition of 'building' under the National Building Regulations and Building Standards Act 103 of 1977, there would need to be compliance with the relevant provisions of that Act in due course. The Court expressed that the high court's order to indefinitely adjourn the claim in reconvention was made without reasons and was difficult to fathom, but that there was no need to dwell on it as an appeal against that portion could have no practical effect. The Court observed that the Latin phrase 'civiliter modo' in modern South African servitude law is consistently read as a set of adverbs qualifying the conduct of the servitude holder, such that a servitude holder who acts reasonably is acting in a civilised (civiliter) manner (modo), and that this principle is a particular expression of the principle of reasonableness.

This case is significant in South African property law as it provides comprehensive guidance on the application of the civiliter modo principle to modern servitude disputes, particularly regarding the erection of gates across servitude roads. The judgment endorses and applies Van der Walt's analytical framework for determining when gates may be erected on servitude roads, providing a practical test for balancing the competing rights of dominant and servient owners. The case affirms the approach in Linvestment CC v Hammersley that courts should adopt a wider and more flexible interpretation of the common law to accommodate modern imperatives such as security concerns. It demonstrates how courts should balance effective use of servitudes with the residual rights of servient owners, taking into account contemporary needs like personal safety and security while ensuring continued reasonable access.