Linvestment CC v Hammersley 2008 (3) SA 376 (SCA)

Linvestment CC v Hammersley 2008 (3) SA 376 (SCA)

Issue: Whether a court has the power to order the relocation of a servitude, even if the owner of the servient tenement does not consent to the relocation.

Facts:

Linvestment CC was the owner of a property that was subject to a servitude of right of way in favor of Hammersley, the owner of an adjacent property. The servitude road ran through the middle of Linvestment CC's property.

Linvestment CC wanted to develop its property, but the servitude road was in the way. Linvestment CC applied to the High Court for an order to relocate the servitude road. Hammersley opposed the application.

Key Facts:

• Linvestment CC wanted to relocate a servitude road that ran through its property.
• Hammersley, the owner of the servient tenement, opposed the application.

Court's Discussion on Relocation of a Servitude

The Supreme Court of Appeal (SCA) held that a court has the power to order the relocation of a servitude, even if the owner of the servient tenement does not consent to the relocation. The SCA reasoned that the court has a general inherent power to control its own process and to ensure that its judgments are enforced in a just and equitable manner.

The SCA also held that the court will consider all of the relevant factors in determining whether to order the relocation of a servitude. The SCA held that the following factors are relevant:

• The inconvenience and expense of relocating the servitude.
• The impact on the servient tenement.
• The benefit to the dominant tenement.
• The availability of alternative routes for the servitude holder to use.

The SCA applied the following principles in reaching its decision:

• The servient tenement must be subject to a servitude.
• The dominant tenement must benefit from the relocation of the servitude.
• The relocation of the servitude must be fair and equitable.

Application of the Law to the Facts of the Case

The SCA applied the law to the facts of the case and found that the High Court should have ordered the relocation of the servitude road. The SCA held that the relocation of the servitude road would benefit Linvestment CC without causing undue inconvenience or expense to Hammersley.

Conclusion

The SCA's decision in Linvestment CC v Hammersley 2008 (3) SA 376 (SCA) is a significant case because it clarifies the law relating to the relocation of servitudes. The decision emphasizes that a court has the power to order the relocation of a servitude, even if the owner of the servient tenement does not consent to the relocation.

The decision also provides guidance to landowners and servitude holders on the factors that the court will consider in determining whether to order the relocation of a servitude.