The creation methods of servitudes in South Africa

A servitude can be described as a limited real right that can either provide the holder with the use and enjoyment of another person’s property or restrict the person, with the right of ownership, to exercise certain entitlements that stem from such an ownership right. It, therefore, provides someone with an advantage over another person’s property[1]. As this is quite an extreme right to obtain, it is necessary to know how such a right comes into existence and when such a right is truly enforceable.

The first method for the creation of a servitude is by way of registration. It is important to note that an agreement to grant a servitude only becomes enforceable as a real right when such an agreement has been registered in a deed of transfer[2]. The aforementioned agreement can, for example, be where two owners of adjoining properties agree that they will grant each other a reciprocal right to use a portion of each other’s land in order to create a right of way to pass such land. This agreement can encompass various factors such as the extent of the servitude, the duration thereof, and the amount/s payable if any[3].

The second method for the creation of servitudes is by an order of court. A servitude that can be granted by an order of court, is the right of way of necessity, which is usually non-consensual. This happens in cases where a landowner is locked into his property and does not have reasonable access to a public road. Should such a servitude be granted by a court order, then compensation will be payable if the right of way is of a permanent nature[4].

Should you wish to lodge such an application for a right of way, the case of Van Rensburg v Coetzee[5]  provides guidelines as determined by the Appellate Division of the High Court, which held that the person instituting the application proceedings needs to aver what the necessity for such right is and why it should impact the specific owner’s land. Furthermore, the width of the road and the particular route should be disclosed. Lastly, a specific amount needs to be averred for payment as compensation and should accompany the application, whereafter the court will decide whether such an amount is just and equitable in the circumstances[6].

The third method for the creation of servitudes is by way of legislation. There are many acts that allow for the creation of servitudes, including, but not limited to, the Prescription Act[7]; the Expropriation Act[8]; the Sectional Titles Act[9]; the Legal Succession to the South African Transport Services Act[10]; the National Water Act[11]; the Electronic Communications Act[12]; the Electricity Regulation Act[13], and the National Environmental Management: Integrated Coastal Management Act[14]. Each of these acts provides different methods and reasons for the creation of different types of servitudes in South Africa.

Therefore, should you wish to create a servitude or investigate whether there is a servitude of any nature applicable to the circumstances then the above methods can assist therewith.

Written by MARILIE BEUKES

• [1] Silberberg & Schoeman’s “The Law of Property” p 371.
• [2] Silberberg & Schoeman’s “The Law of Property” p 388.
• [3] Silberberg & Schoeman’s “The Law of Property” p 388.
• [4] Silberberg & Schoeman’s “The Law of Property” p 390.
• [5] 1979 (4) SA 655 (A).
• [6] Silberberg & Schoeman’s “The Law of Property” p 390-391.
• [7] Act 68 of 1969.
• [8] Act 63 of 1975.
• [9] Act 95 of 1986.
• [10] Act 9 of 1989.
• [11] Act 36 of 1998.
• [12] Act 36 of 2005.
• [13] Act 4 of 2006.
• [14] Act 24 of 2008.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)