Brink v Van Niekerk 1986 (3) SA 428 (T)

Brink v Van Niekerk 1986 (3) SA 428 (T)

Issue: Whether a servitude can be created by agreement between the parties, even if the servitude is not registered in the Deeds Office.

Facts:

Brink and Van Niekerk were the owners of neighboring farms. Brink and Van Niekerk agreed that Van Niekerk would have a right of way over Brink's farm. The agreement between Brink and Van Niekerk was not registered in the Deeds Office.

Van Niekerk used the right of way for many years. However, Brink eventually decided to revoke the right of way. Van Niekerk sued Brink for a declaration that he had a servitude of right of way over Brink's farm.

Key Facts:

• Brink and Van Niekerk were the owners of neighboring farms.
• Brink and Van Niekerk agreed that Van Niekerk would have a right of way over Brink's farm.
• The agreement between Brink and Van Niekerk was not registered in the Deeds Office.
• Van Niekerk used the right of way for many years.
• Brink decided to revoke the right of way.
• Van Niekerk sued Brink for a declaration that he had a servitude of right of way over Brink's farm.

Court's Discussion on the General Characteristic of Servitude

The Transvaal Provincial Division (TPD) held that a servitude can be created by agreement between the parties, even if the servitude is not registered in the Deeds Office. The TPD reasoned that the purpose of registration is to give notice to the public of the existence of the servitude. The TPD held that registration is not essential for the validity of a servitude.

The TPD also held that the following are the general characteristics of a servitude:

• A servitude is a real right that entitles the holder of the servitude to use the property of another person in a specific way.
• A servitude is attached to the property, rather than to the person of the holder of the servitude.
• A servitude is transferable with the property to which it is attached.
• A servitude cannot be extinguished without the consent of the holder of the servitude.

Application of the Law to the Facts of the Case

The TPD applied the law to the facts of the case and found that Van Niekerk had a servitude of right of way over Brink's farm. The TPD held that the agreement between Brink and Van Niekerk was a valid agreement for the creation of a servitude. The TPD also held that the fact that the agreement was not registered in the Deeds Office did not invalidate the servitude.

Conclusion

The TPD's decision in Brink v Van Niekerk 1986 (3) SA 428 (T) is a significant case because it clarifies the law relating to the creation of servitudes. The decision emphasizes that a servitude can be created by agreement between the parties, even if the servitude is not registered in the Deeds Office.

The decision also provides guidance to landowners on the steps they can take to protect their rights and the rights of their neighbors. Landowners should be aware that they may be bound by agreements that they enter into with their neighbors, even if the agreements are not registered in the Deeds Office.