Van der Merwe v Van der Merwe 2000 (2) SA 519 (CPD)

Van der Merwe v Van der Merwe 2000 (2) SA 519 (CPD)

Issue: Whether a landowner can be compelled to provide access to a neighboring property if the neighboring property does not have a servitude of access.

Facts:

Van der Merwe (the dominant tenement holder) and Van der Merwe (the servient tenement holder) were the owners of two neighboring properties. The dominant tenement holder's property was landlocked, meaning that it did not have any direct access to a public road. The dominant tenement holder had been using a road across the servient tenement holder's property to access his property for many years. However, the servient tenement holder eventually decided to close the road.

The dominant tenement holder applied to the Cape Provincial Division (CPD) for an order compelling the servient tenement holder to provide him with access to his property. The dominant tenement holder argued that he had a right of access to his property through the servient tenement holder's property.

Key Facts:

• Van der Merwe (the dominant tenement holder) and Van der Merwe (the servient tenement holder) were the owners of two neighboring properties.
• The dominant tenement holder's property was landlocked, meaning that it did not have any direct access to a public road.
• The dominant tenement holder had been using a road across the servient tenement holder's property to access his property for many years.
• However, the servient tenement holder eventually decided to close the road.
• The dominant tenement holder applied to the CPD for an order compelling the servient tenement holder to provide him with access to his property.
• The dominant tenement holder argued that he had a right of access to his property through the servient tenement holder's property.

Court's Decision

The CPD held that the dominant tenement holder did not have a right of access to his property through the servient tenement holder's property. The CPD reasoned that the dominant tenement holder did not have a servitude of access over the servient tenement holder's property. The CPD also held that the dominant tenement holder did not have any other legal right to access his property through the servient tenement holder's property.

Application of the Law to the Facts of the Case

The CPD applied the law to the facts of the case and found that the dominant tenement holder did not have a right of access to his property through the servient tenement holder's property. The CPD ordered the dominant tenement holder to remove the fence that he had erected across the road on the servient tenement holder's property.

Conclusion

The CPD's decision in Van der Merwe v Van der Merwe 2000 (2) SA 519 (CPD) is a significant case because it clarifies the law relating to the right of access to landlocked properties. The decision emphasizes that a landowner does not have a right of access to his property through the property of a neighboring landowner, unless the landowner has a servitude of access over the neighboring landowner's property.

The decision also provides guidance to landowners and lawyers on the law relating to the right of access to landlocked properties. Landowners should be aware that they cannot compel a neighboring landowner to provide them with access to their property, unless the landowner has a servitude of access over the neighboring landowner's property.