Browsing by Author "Kiewitz, Leigh-Ann"

Now showing 1 - 2 of 2
  • Thumbnail Image
    Item
    Relocation of a specified servitude of right of way
    (Stellenbosch : University of Stellenbosch, 2010-12) Kiewitz, Leigh-Ann; Van der Walt, A. J.; University of Stellenbosch. Faculty of Law. Department of Public Law.
    ENGLISH ABSTRACT: Traditionally, the common law rule as interpreted by South African case law required that mutual consent be obtained in order to relocate a specified servitude of right of way. Since the Linvestment judgment, the legal position pertaining to the unilateral relocation of a specified servitude of right of way is that the location of an existing specified servitude of right of way may be altered unilaterally by the owner of the servient tenement. Unilateral relocation of a specified servitude of right of way will only be allowed if strict requirements are met, namely that the servient owner will be materially inconvenienced in the use of his property if the status quo is maintained; that the relocation will not prejudice the owner of the dominant tenement; and that the servient owner pays all costs incurred in the relocation of the servitude. In order to justify the departure from the common law, the court in Linvestment relied on historical argument, comparative law, and policy arguments to reach the conclusion that a servitude may be relocated unilaterally if it is in the interest of fairness, equity and justice. The court relied on section 173 of the Constitution, which entitles the courts to develop the common law. This decision of the Supreme Court of Appeal has far-reaching implications. A servitude is a limited real right to the property of another person which grants the holder of that right specific entitlements. South African law requires that registration in the deeds registry take place in terms of section 63(1) of the Deeds Registries Act 47 of 1937 as soon as a limited real right in immovable property is created or transferred. Once the servitude is registered, it will be enforceable against the owner of the servient tenement and all his successors in title. When the servient owner is allowed to relocate the servitude unilaterally, it will have the effect of undermining the limited real right that the dominant owner holds in the property in question. This thesis evaluates the extent to which the courts may change common law principles on the basis of fairness, justice and equity. The conclusion is that the policy grounds on which the court based its decision are convincing, as the law cannot remain rigid and needs to be continually changed in order to meet changing conditions. However, the comparative and historical reasons provided for the decision are insubstantial and unconvincing. The thesis points out that there are no historical grounds for the decision, but that more extensive and contextual comparative research does support the decision. This thesis considers the constitutional implications of a flexible legal approach to the unilateral relocation of a specified servitude of right of way and concludes that an approach that allows for unilateral relocation will not amount to an expropriation and will not establish an arbitrary deprivation either, provided that the requirements set out in the decision are applied strictly and that a court order is required for the relocation.
  • Thumbnail Image
    Item
    Trading rights as a novel category of servitudes in South African law
    (Stellenbosch : Stellenbosch University, 2019-12) Kiewitz, Leigh-Ann; Boggenpoel, Zsa-Zsa; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: This dissertation sought to determine whether it is possible to recognise trading rights as a category of servitudes; what its nature and content would be if such recognition is possible; and, under which conditions such servitudes could be registered. South African case law has revealed the courts’ willingness to regard the right of an individual to trade on another’s land, and a right to prevent another person from trading on their own land, as a praedial or a personal servitude. However, the relevant case law is not equally clear in all instances, especially in terms of whether the requirements of servitude law would be complied with. This dissertation provides a methodology that courts should follow to ensure that the particular right complies with all the requirements. When the subtraction from the dominium test as developed by case law is applied, it is clear that trading rights could amount to real rights because they place a burden on land by means of restricting the owner of the servient tenement’s enjoyment in a physical sense. For purposes of positive and negative praedial trading servitudes, the crucial issue for compliance with the utilitas requirement is that the dominant tenement must be developed, appointed and used in a way that would render the servitude useful for the dominant land on a durable basis. Negative servitudes in restraint of trade are a contested matter based on the fact that they could stir up anti-competitiveness. However, convincing policy arguments exist for the recognition of such servitudes. Moreover, if negative trading rights can be recognised as real rights, legislation will be necessary to ensure that the rights of the parties benefiting from the servitude and affected thereby are balanced adequately. Accordingly, it is concluded that a legislative framework should be adopted containing conditions under which these negative servitudes in restraint of trade should be registered as limited real rights. If a negative trading right does not comply with the requirements for the establishment of a praedial servitude, it is conceivable that a personal servitude may be established. In seeking alternatives to structuring trade agreements, a positive right to trade could be established as either a lease agreement or an innominate contract. It has also been discovered that a restraint of trade agreement could alternatively be set up as a restrictive covenant. After having evaluated all the possible legal constructs, it is concluded that it is preferable to secure a positive right to trade by means of a praedial servitude, personal servitude or a registered long-term lease agreement. This is because an individual’s rights will certainly be better protected in the form of a limited real right because it is stronger than a personal right as it will be enforceable erga omnes. Due to the synonymous content of a restrictive covenant and a negative servitude in restraint of trade, this dissertation shows that a servitude would suffice to secure this negative right. Furthermore, restrictive covenants are precarious in nature and have essentially become redundant in South African law. Therefore, structuring restraint of trade agreements as a servitude would arguably be more suited.