Nel v Metequity Ltd 2007 (3) SA 34 (SCA)

Nel v Metequity Ltd 2007 (3) SA 34 (SCA)

Issue: Whether the owner of a dominant tenement can be compelled to relocate a servitude of right of way if the relocation is in the public interest.

Facts:

Nel was the owner of a dominant tenement that was subject to a servitude of right of way in favor of Metequity Ltd, the owner of the servient tenement. The servitude of right of way was created in 1956.

The government wanted to build a new road through the servient tenement. The new road would intersect with the servitude of right of way. The government approached Metequity Ltd and Nel and asked them to relocate the servitude of right of way to accommodate the new road.

Metequity Ltd was willing to relocate the servitude of right of way, but Nel was not. Nel argued that he had a vested right in the existing servitude of right of way and that he could not be compelled to relocate the servitude of right of way without his consent.

Key Facts:

• Nel was the owner of a dominant tenement that was subject to a servitude of right of way in favor of Metequity Ltd, the owner of the servient tenement.
• The servitude of right of way was created in 1956.
• The government wanted to build a new road through the servient tenement.
• The new road would intersect with the servitude of right of way.
• The government approached Metequity Ltd and Nel and asked them to relocate the servitude of right of way to accommodate the new road.
• Metequity Ltd was willing to relocate the servitude of right of way, but Nel was not.

Court's Decision

The Supreme Court of Appeal (SCA) held that Nel could be compelled to relocate the servitude of right of way if the relocation was in the public interest. The SCA reasoned that the right of a landowner to enjoy his property is not absolute and that it can be limited in the public interest.

The SCA also held that the government had the power to compulsorily acquire servitudes if it was necessary in the public interest. The SCA held that the government's power to compulsorily acquire servitudes was subject to the following conditions:

• The government must have a valid reason for compulsorily acquiring the servitude.
• The government must compensate the landowner for any loss or damage that the landowner suffers as a result of the compulsory acquisition of the servitude.
• The government must follow the correct procedures for compulsorily acquiring the servitude.

Application of the Law to the Facts of the Case

The SCA applied the law to the facts of the case and found that Nel could be compelled to relocate the servitude of right of way because the relocation was in the public interest. The SCA held that the government had a valid reason for compulsorily acquiring the servitude because the new road was necessary for the development of the area.

The SCA also held that the government had compensated Nel for any loss or damage that he would suffer as a result of the relocation of the servitude. The SCA held that the government had followed the correct procedures for compulsorily acquiring the servitude.

Conclusion

The SCA's decision in Nel v Metequity Ltd 2007 (3) SA 34 (SCA) is a significant case because it clarifies the law relating to the compulsory acquisition of servitudes. The decision emphasizes that the government has the power to compulsorily acquire servitudes if it is necessary in the public interest.

The decision also provides guidance to landowners and the government on the law relating to the compulsory acquisition of servitudes. Landowners should be aware that they may be compelled to relocate their servitudes if the relocation is in the public interest. The government should be aware that it must have a valid reason for compulsorily acquiring a servitude, that it must compensate the landowner for any loss or damage that the landowner suffers as a result of the compulsory acquisition of the servitude, and that it must follow the correct procedures for compulsorily acquiring the servitude.