Southern Tankers (Pty) Ltd t/a Unilog v Pescana D’’Oro Ltd 2003 (4) SA 566 (C)

Southern Tankers (Pty) Ltd t/a Unilog v Pescana D’’Oro Ltd 2003 (4) SA 566 (C)

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:

Southern Tankers (Pty) Ltd t/a Unilog (Unilog) was the owner of a dominant tenement that was subject to a servitude of right of way in favor of Pescana D’’Oro Ltd (Pescana). The servitude of right of way had been 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 Unilog and Pescana and asked them to relocate the servitude of right of way to accommodate the new road.

Pescana was willing to relocate the servitude of right of way, but Unilog was not. Unilog argued that it had a vested right in the existing servitude of right of way and that it could not be compelled to relocate the servitude of right of way without its consent.

Key Facts:

• Unilog was the owner of a dominant tenement that was subject to a servitude of right of way in favor of Pescana, the owner of the servient tenement.
• The servitude of right of way had been created in 1956.
• The government wanted to build a new road through the servient tenement, which would intersect with the servitude of right of way.
• The government approached Unilog and Pescana and asked them to relocate the servitude of right of way to accommodate the new road.
• Pescana was willing to relocate the servitude of right of way, but Unilog was not.
• Unilog argued that it had a vested right in the existing servitude of right of way and that it could not be compelled to relocate the servitude of right of way without its consent.

Court's Decision

The Cape High Court (CHC) held that Unilog could be compelled to relocate the servitude of right of way if the relocation was in the public interest. The CHC 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 CHC also held that the government had the power to compulsorily acquire servitudes if it was necessary in the public interest. The CHC reasoned 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 CHC applied the law to the facts of the case and found that Unilog could be compelled to relocate the servitude of right of way because the relocation was in the public interest. The CHC ordered Unilog to relocate the servitude of right of way to accommodate the new road.

Conclusion

The CHC's decision in Southern Tankers (Pty) Ltd t/a Unilog v Pescana D’’Oro Ltd 2003 (4) SA 566 (C) 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.