A 

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

REPORTABLE
Case no:  634/06
					
In the matter between

LINVESTMENT CC							APPELLANT

and

BONNIE PATRICIA HAMMERSLEY			FIRST RESPONDENT
HILTON HAMMERSLEY					SECOND RESPONDENT

Coram:	HOWIE P, MTHIYANE, HEHER, COMBRINCK JJA and KGOMO AJA

Heard:	21 NOVEMBER 2007
Delivered:	28 FEBRUARY 2008

Summary:	Land – servitudes – right of way – defined and registered – relocation at instance of owner of servient tenement – when allowed.
Constitutional law – s 173 – development of the common law – when appropriate.

Neutral citation:	This judgment may be referred to as Linvestment CC v Hammersley (634/2006) [2008] ZASCA 1 (28 February 2008).

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JUDGMENT
__________________________________________________________________
										HEHER JA

HEHER JA:
[1]	The issue in this appeal, simply stated, is whether the owner of a servient tenement can, of his own volition, change the route of a defined right of way registered against the title deeds of his property.
[2]	The appellant is the registered owner of Portion 136 of the Farm Driefontein, registration division FS, Province of KwaZulu-Natal, in extent 25,0912 hectares held under Certificate of Consolidated Title No T66117/2004.
[3]	The first respondent is the registered owner of the Remainder of Sub 3 of the Farm Driefontein No 1389, KwaZulu-Natal, in extent 20,9085 hectares held under Deed of Transfer No T19322/1992 and Deed of Transfer No T28469/1998. The second respondent, her husband, apparently resides on this property.
[4]	The appellant’s property is subject to two registered servitudes in favour of the first respondent’s property viz
1.	An 18,29 metre servitude of right of way represented by the figure e.f.h.g on a diagram created in Deed of Transfer No 4976/1976;
2.	A 15 metre wide road servitude depicted by the figure g.h.G.H.J.m.j on a diagram created in Deed of Transfer No T17863/1983.
The two servitudes are so located as to constitute a continuous strip of land over which the rights can be exercised.
[5]	In its declaration in the High Court the appellant, as plaintiff, made the following allegations:
1.	The plaintiff had given notice to the first defendant of its intention to amend the course of the servitudes from that shown on the diagrams to [another route over the plaintiff’s property]. 
2.	The plaintiff had tendered all costs of amending the registration of the servitudes, including the costs of survey, all consents required, and registration and construction of all roads from any point on the new course of the servitude adjacent to the first defendant’s property across the boundary to the place on the first defendant’s property to which the first defendant required access.
3.	The first defendant had refused to consent to amend the servitudes as proposed.
4.	The first defendant’s refusal was unreasonable.
5.	The present servitudes constituted undue inconvenience to the plaintiff.
6.	The substitution of the proposed servitudes for the present servitudes would not excessively inconvenience the defendants.
7.	The plaintiff is entitled to a declaration which will permit it to substitute the proposed servitudes for the existing servitudes.
In the premises the appellant claimed an order declaring that it was entitled to substitute the proposed servitude route for the existing route.
[6]	The respondents pleaded that they were under no obligation to accept the alternative route and that the declaration sought was not competent in law since the defined route could only be changed by mutual consent.
[7]	For the purposes of adjudication by the High Court the parties agreed that the appellant’s averments relating to the unreasonableness of the respondents’ refusal, the undue inconvenience to the appellant of the existing route and the absence of excessive inconvenience to the first respondent of the proposed route, were not placed in issue.
[8]	The parties agreed that the question of whether the declaration was competent in law was to be tried as an issue separated in terms of Rule 33(1) according to a stated case containing the facts set out in paragraphs [2] to [6] of this introduction.
[9]	The High Court (Madondo AJ) answered the question in favour of the respondents and ordered the appellant to pay the costs.
[10]	With leave of the court a quo the appellant appealed to this Court against the whole of the judgment and the order made.
[11]	Mr Gorven, who appeared for the appellant, conceded that the established law is against his client. In Gardens Estate Ltd v Lewis this Court said (per De Villiers AJA):
‘A further question between the parties is: Did the Gardens Estate Syndicate have the right to deviate the pipe-line as it did in 1902? In my opinion it had no such right. A definite servitude having originally been constituted, it could only be altered by mutual consent. In this respect a servitude as constituted differs from a servitude created simpliciter (D. 8.1.9.). In the latter case, according to Voet 8.3.8, the owner of the dominant tenement has the election where to lay the line, which he must however exercise civiliter. If he has once exercised his election, he cannot afterwards change. But the owner of the servient tenement would have the right to do so provided the new route 
is as convenient as the old one, (cf. McCabe v Rubidge, 1913, A.D. 441). When Voet, 1.50, says that the owner of the servient tenement has the right to point out another route to that which has been agreed upon (vel conventione designatum fuerat) he speaks of servitudes created simpliciter.’
(The reference to Voet 1.50 is obscure; the passage referred to is in fact in 8.3.8.)
This dictum has subsequently been referred to without dissent in Moulder v Thom and Smith v Mukheiber.
[12]	Gardens Estate Ltd v Lewis concerned a servitude of aquaeductus constituted and registered in defined and unambiguous terms against the title of the servient tenement. The determination of whether Gardens Estate Ltd (the servient owner) was entitled to relocate the pipeline was the ratio decidendi of the judgment. That the servitude was one allowing the leading of water and not a right of way is a distinction without a difference, as Mr Gorven concedes.
[13]	The first step in determining the nature and extent of a registered condition is to examine its terms. In the present instance we are concerned with servitudes of rights of way which are precisely defined in relation to the remainder of the servient tenement by reference to surveyors’ diagrams and leave no room for uncertainty. Unless there is a valid reason to distinguish or depart from the conclusion in Gardens Estate Ltd v Lewis, the appeal must fail.	
[14]	Mr Gorven submitted that the decision was based upon a misinterpretation. His contention was that Voet, properly construed, did not distinguish between servitudes 

constituted in general terms and servitudes specifically constituted (ie in terms not requiring further definition as to location or route). I do not agree. Title 3, sec 8 provides commentary on Justinian’s Digest 8.3, which deals with rustic praedial servitudes. D 8.3.13.1 relates to general servitudes of via over an entire estate. See also D 8.1.9 (via), D 8.3.21 (aquaeductus) and D 8.3.26 (via, iter, actus and aquaeductus). As far as I can ascertain, the Digest does not address the case of servitudes specifically defined. Nor did Voet consider it necessary to do so. That limitation is also inherent in 8.3.8 which is discussed in Gardens Estate Ltd v Lewis. The conclusion of this Court relating to the servitude against the title was simply an inference drawn from a contrast with Voet’s views. With respect to the learned judges, the inference seems entirely warranted. It is certainly how Gane understood the matter when he added his introductory notes; hence he prefaced 8.3.8 with the words ‘In servitudes [of iter, actus, via etc] dominant owner has choice of route where not fixed.’
[15]	In the event of his failing to persuade us of the correctness of his initial submission, Mr Gorven based an argument on s 25 (1) of the Constitution of the Republic of South Africa. He contended that the effect of refusing to allow the appellant to move the servitude to a more convenient place, was to restrict the free use of the land over which the servitude presently extends; thereby it deprived the 
appellant of a right to property.
[16]	But that cannot be so. The appellant acquired and, no doubt, paid for the property in the knowledge (actual or implied) that its right of ownership was limited by the servitude. It is deprived of nothing by the proper interpretation of the servitude. And if it had been a party to the agreement constituting the servitude, it would have suffered no deprivation of its rights but only a limitation to which it had freely consented.
[17]	The conclusion reached in Gardens Estate Ltd v Lewis is also in accordance with existing principle. As the law stands, once the servitutal rights of the parties are unambiguously circumscribed by the terms of their agreement, a court will not order a departure from such terms in order to bring about a lessening of the burden on the servient property: pacta sunt servanda - Van Rensburg en andere v Taute en andere  - except in the case of constitutional violations: Barkhuizen v Napier.
[18]	Selikowitz J summarised the existing state of the law in De Witt v Knierim:
‘Whilst our law apparently seeks to promote the bona fide development by an owner of his agricultural land and to optimise its utilization in the public interest, it also recognises and enforces the principle that once a right has been given to another the grantor cannot either directly or indirectly reappropriate it.’
That, however, is what the appellant seeks to do.
[19]	A servitude along a defined route has been said to be analogous to a compulsory 

sale of a particular part of property and can only be altered by mutual consent: Beukes v Crous en ‘n ander, albeit that the analogy is not exact, cf Reid v Rocher.
[20]	The attempt of appellant’s counsel to introduce the rule that servitudes must be exercised civiliter modo as a means of justifying his client’s attempt to remove the right of way to a route more convenient to it, is misconceived. As Van den Heever J pointed out in Penny v Brentwood Gardens Body Corporate 
‘Civility is not in law synonymous with a waiver of one’s rights. The old authorities when dealing with this obligation, usually refer to the choice of a route by the owner of the dominant tenement. No one suggested he should rest content with a narrower one than that stipulated because of the convenience of the servient owner, to the best of my knowledge, until Hofmeyr AJP (as he then was) appears to have done so in Sussman v Stabilis Trust Finansieerders (Edms) Bpk 1970 (3) SA 58 (O) at 60E-F. With such a proposition, if it were intended, I respectfully disagree. The cases on which he relies do not support such an interpretation of the obligation to exercise one’s rights civiliter modo.’
[21]	Counsel for the appellant also sought to equate a servitude granted in general terms with one over a defined route. But the equation does not balance. A general servitude of right of way burdens a whole tenement (totus enim fundus servit). (This has been variously expressed as ‘over any part of the land that he likes’, ‘ the whole farm and every clod of it’, and ‘every inch of the servient tenement’. See also Nach Investments (Pty) Ltd v Yaldai Investments (Pty) Ltd. But that is not true of a servitude in defined terms. Moreover, the dominant owner’s right to select the line of a servitude created simpliciter is an essential incident of the grant: Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd; Hollman v Estate Latre. But no such incident attaches to a defined grant. Subject to what is said below, it is both unnecessary and incompatible with a right which is unambiguously limited by the terms of its creation. In the first case the general nature of the servitude remains even though a specific route has been fixed by subsequent agreement and it revives as soon as the servient owner takes away the use of the place over which it was originally delimited; the servient owner must then allot an equally convenient way. That this is so appears from the facts of Rubidge v McCabe & Sons where the substitution of an alternative route by agreement for that under an original right of way established in general terms did not, upon the impracticability of the alternative being established, prevent a reversion to the original route. In the second case the right, being fixed by agreement, is immutable save by consent: see Van Heerden v Coetzee.
[22]	According to existing principle, therefore, the conclusion which this Court reached in Gardens Estate Ltd v Lewis would appear to be unassailable. But the judgment is founded on the unstated premise that the law expounded by Voet correctly reflected the common law of South Africa. The refinements brought about to Roman-

Dutch law in the century between the publication of Voet’s Commentary and the occupation of the Cape in 1806 are not always readily ascertainable. Whether the relevant authorities were available to the judges in 1920 may be doubted since there exists evidence that that law, in so far as it related to the subject of relocation of servitudes, was, by 1806, no longer consistent with the inference which was properly drawn from Voet 8.3.8 in Gardens Estate Ltd v Lewis.
[23]	In order to appreciate the force of the evidence some reference to history is necessary. After the kingdom of Holland threw off the French yoke early in the 19th century, an attempt was also made to replace French law which had applied there since 1809. A decision was taken to compile a new, indigenous code of law. A commission was appointed under the chairmanship of Prof J M Kemper of Leiden for this purpose. It completed a draft by 1816. The southern (Belgian) part of the country was, however, dissatisfied with the emphasis that it placed on Roman-Dutch law, and preferred instead a system closer to the French Code Civil. The committee published a revised draft in 1820 which also found no favour in the south. Hahlo and Kahn describe this draft as ‘a distillation of pure Roman-Dutch law in its final stage of development’.
[24]	The Seventh Title of the revised draft is of particular significance in the present context.

“1188.	De eigenaar van het dienstbaar erf mag niets doen, waardoor het gebruik der erfdienstbaarheid minder nuttig of minder gemakkelijk zoude gemaakt worden.
Hij mag derhalve de gesteldheid der plaats niet veranderen, noch de uitoefening der dienstbaarheid overleggen of overbrengen op een ander gedeelte van het erf, dan waarop hetzelve oorspronkelijk gelegen heeft.
Wanneer niet te min de oorspronklijke inrigting meer bezwarend voor hom was geworden, of hem verhinderde eenige noodzakelijke of nuttige reparation te doen, mag hij aan dengene, die het regt van erfdienstbaarheid heeft, eene andere even goede en even gemakkelijke plaats tot uitoefening van dezelve aanbieden ten zijnen koste; welk aanbod alsdan niet zal mogen geweigerd worden.”
There is nothing in this passage, or, indeed, in the compilers’ treatment of the nature of servitudes in Part 1 of the Seventh Title, to suggest an intention to draw a distinction between servitudes generally and specifically created.
If art 1188 was, as it appears to have been, an authoritative statement of the Roman-Dutch private law at the date of the British occupation of the Cape, it contained principles which should have been applied in Gardens Estate v Lewis. That it was apparently overlooked certainly justifies a reconsideration of the issue.
[25]	In addition, this court has always possessed an inherent power to develop the common law. The fullest discussion of which I am aware is to be found in Hahlo and Kahn, op cit 582-596 sub nom ‘The Second Life of the Roman-Dutch Law’. The power is confirmed in s 173 of the Constitution ‘taking into account the interests of justice’. Thus, without abandoning our legal heritage, the courts can and should examine how developed legal systems cope with common problems. By appropriate application of the knowledge thus derived, a modification of our existing law may better serve the interests of justice when the existing law is uncertain or does not adequately serve modern demands on it. The present appeal, in my view, is just such a case.
[26]	The question of mitigating the burden of servitudes has been addressed in many systems of law, usually in statute or code. Although Kemper’s draft was, for reasons which Prof de Vos explains, not adopted as the codified law in Holland, in 1838 a Burgerlijk Wetboek was adopted which contained many elements of the Napoleonic Code, including art 701. In the 19th century, Laurent, discussing art 701 of the French Code, said that that article dealt with mutability of title and commented:
‘As the needs of the properties change, and society being concerned that servitudes do not hamper the changes which become necessary, the law must permit interested parties to modify the exercise of the servitude’.
[27]	According to Prof Meijers, (writing in the middle of the 20th century) the right of relocation of a defined servitude is ‘recognized by most foreign codes’ including Switzerland, Italy and Greece, subject to the duty of the servient owner to prove that the dominant owner’s right of enjoyment would not thereby be reduced.
[28]	The Belgian Civil Code  and the German BGB  are to similar effect.
[29]	Scots law is discussed in extenso by Cusine and Paisley. There is apparently an unresolved dichotomy of authority between that which favours sanctity of contract and that which would allow a right to relocate on the grounds of manifest convenience to the servient owner and absence of detriment to the dominant proprietor. The authors debate the arguments for and against the respective views. Within the same legal environment, an instructive comparative survey traces the progress of the law from the common Roman roots of Scotland and the state of Louisiana until the 21st century, showing how the tide is turning from strict adherence to contractual rights toward a utilitarian power of relocation that is judicially controlled or to legislative intervention having similar effect. 
[30]	Even from this brief, and necessarily superficial, survey it is apparent that 

widespread civilised practice favours a flexible approach to the relocation of servitudes. If that flexibility is soundly based I think we would be wrong to adhere blindly to an inference drawn from the views of Voet expressed at the end of the 17th century, albeit affirmed as late as 1920 by this court.
[31]	I am persuaded that the interests of justice do indeed require a change in our established law on the subject. The rigid enforcement of a servitude when the sanctity of the contract or the strict terms of the grant benefit neither party but, on the contrary, operate prejudicially on one of them, seems to me indefensible. Servitudes are by their nature often the creation of preceding generations devised in another time to serve ends which must now be satisfied in a different environment. Imagine a right of way over a farm portion registered fifty years ago. Since then new public roads have been created providing new access to the dominant tenement, the nature of the environment has changed, the contracting parties have long gone. Why should a present owner, on no rational ground, be entitled to rely on his summum ius derived from the alleged sanctity of a contract or a grant or prescriptive acquisition to which he was not privy. 
Properly regulated flexibility will not set an unhealthy precedent or encourage abuse. 

Nor will it cheapen the value of registered title or prejudice third parties.
[32]	But even if the dominant and servient tenements still remain in the ownership of the original contracting parties, the opportunity for relocation should not be excluded if 
the circumstances prevailing at the time of the original agreement have changed and the dominant owner no longer possesses any acceptable reason to subject the servient property to the strict terms of the grant. It seems to me that, in such a case, the respective interests of the parties can fairly be regulated by reliance on the concepts of convenience and prejudice which I have introduced into the order.
[33]	In line with the extensive international trend of legal development in this respect, I therefore propose that, in circumstances falling within the problem posed by the stated case, the law be developed to ensure that injustice does not result.
[34]	The appellant will, in consequence, have been successful in the appeal. This success may, however, prove illusory if evidence should show that it cannot satisfy the terms of the law as declared. The respondents were satisfied to fight the matter on the basis of the stated case. Their opposition has proved empty, but for reasons which they could not have foreseen. I think it would be fair if the parties are ordered to pay their own costs in both courts.
[35]	I would make the following order:
1.	The order of the court a quo is set aside and replaced by the following-
‘It is declared 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 the maintenance of the status quo ante;
(b)	the relocation occurs on the servient tenement;
(c)	the relocation will not prejudice the owner of the dominant tenement;
(d)	the servient owner pays the costs attendant upon such relocation including those costs involved in amending the registration of the title deeds of the servient tenement (and, if applicable, the dominant tenement).’
2.	The parties are ordered to pay their own costs in both courts.

									__________________
J A   HEHER
									JUDGE OF APPEAL

HOWIE P			)Concur
MTHIYANE JA		)
COMBRINCK JA	)
KGOMO AJA		)