Roelofse NO v Bothma NO 2007 (2) SA 257 (C)

Roelofse NO v Bothma NO 2007 (2) SA 257 (C)

Issue: Whether the construction of a portico on a servitude road constitutes an unreasonable interference with the servitude holder's right to use the road.

Facts:

Roelofse NO was the owner of a dominant tenement that was subject to a servitude of right of way in favor of Bothma NO, the owner of a servient tenement. Bothma NO constructed a portico on the servitude road. Roelofse NO objected to the construction of the portico, arguing that it constituted an unreasonable interference with his right to use the road.

Key Facts:

• Bothma NO constructed a portico on a servitude road.
• Roelofse NO, the owner of the dominant tenement, objected to the construction of the portico, arguing that it constituted an unreasonable interference with his right to use the road.

Court's Discussion on Interference with Right of Servitude Holder

The Cape High Court held that the construction of the portico did constitute an unreasonable interference with Roelofse NO's right to use the servitude road. The court reasoned that the portico narrowed the road and made it more difficult for Roelofse NO to use the road. The court also held that the portico blocked views from Roelofse NO's property and made the property less attractive.

The court applied the following principles in reaching its decision:

• The holder of a servitude has a right to use the servient tenement in a way that is reasonably necessary for the enjoyment of the servitude.
• The owner of the servient tenement is entitled to use the servient tenement in any way that does not unreasonably interfere with the servitude holder's right to use the servient tenement.
• The court will consider all of the relevant factors in determining whether a particular use of the servient tenement constitutes an unreasonable interference with the servitude holder's right to use the servient tenement.

The court considered the following factors in reaching its decision:

• The nature and extent of the servitude.
• The nature and extent of the interference with the servitude holder's right to use the servient tenement.
• The reasonableness of the interference with the servitude holder's right to use the servient tenement.
• The availability of alternative routes for the servitude holder to use.

The court held that the construction of the portico was an unreasonable interference with Roelofse NO's right to use the servitude road. The court ordered Bothma NO to remove the portico.

Conclusion

The Cape High Court's decision in Roelofse NO v Bothma NO 2007 (2) SA 257 (C) is a significant case because it clarifies the law relating to the interference with servitude holders' rights. The decision emphasizes that the holder of a servitude has a right to use the servient tenement in a way that is reasonably necessary for the enjoyment of the servitude, and that the owner of the servient tenement is entitled to use the servient tenement in any way that does not unreasonably interfere with the servitude holder's right to use the servient tenement.

The decision also provides guidance to landowners and servitude holders on the factors that the court will consider in determining whether a particular use of the servient tenement constitutes an unreasonable interference with the servitude holder's right to use the servient tenement.