Servitudes in South Africa can be established in several ways. The methods of creation include registration by court order and through legislation.
A servitude is a limited real right that allows the holder to use and enjoy another person’s property or restricts the property owner’s rights. This right offers someone an advantage over another’s property, making it important to understand how it is created and when it is enforceable.
The first method is registration. An agreement to grant a servitude only becomes enforceable as a real right once it is registered in a deed of transfer. For example, two neighboring property owners may agree to grant each other reciprocal rights to use portions of each other’s land to create a right of way. This agreement can specify various factors, such as the extent and duration of the servitude and any payable amounts.
The second method is by court order. A court can grant a servitude, such as a right of way of necessity, in cases where a landowner lacks reasonable access to a public road. If a court grants such a servitude, compensation is payable if the right of way is permanent. The case of Van Rensburg v Coetzee provides guidelines for lodging such an application, requiring the applicant to justify the necessity and impact on the specific owner’s land, disclose the width and route of the road, and propose a compensation amount.
The third method is through legislation. Several acts allow for the creation of servitudes, including the Prescription Act, Expropriation Act, Sectional Titles Act, Legal Succession to the South African Transport Services Act, National Water Act, Electronic Communications Act, Electricity Regulation Act, and the National Environmental Management: Integrated Coastal Management Act. Each act provides different methods and reasons for creating various types of servitudes in South Africa.
If you wish to create a servitude or determine if one applies to your situation, the above methods can guide you.
[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).