Development of the common law of servitude

Van Der Walt, A. J. (2013-01)

CITATION: Van Der Walt, A. J. 2013. Development of the common law of servitude . South African Law Journal, 130(4):722-756.

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This article explores the implications of the Constitution for the development of the common law of servitude. Following from an analysis of two recent servitude cases in which the courts might have developed the law of servitude for doctrinal or policy reasons (the court controversially decided in both cases that development was unnecessary because the desired result could be reached on the basis of the law as it stands), it will be argued that the question whether the common law should apply to a particular dispute at all and whether it should be developed (because its outcome is for some reason unacceptable) are constitutional issues and not purely common-law ones. Both questions have to be answered in view of fundamental constitutional principles such as the supremacy of the Constitution, the single-system-of-law principle enunciated by the Constitutional Court, and the subsidiarity principles developed by that court. Having argued that this holds even in instances where no legislation applies to the dispute, the article distinguishes between situations where the decision to develop the common law follows from direct constitutional obligations and situations where that decision is taken purely on policy or doctrinal grounds. The final section of the article identifies section 25 issues possibly resulting from a decision to develop the common law of servitude and indicates how those issues can be approached in view of the FNB methodology for the analysis of section 25 disputes.

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