Van der Merwe v Van Wyk NO 1921 EDS 298

Van der Merwe v Van Wyk NO 1921 EDS 298

Issue: Whether a landowner can transfer a servitude to a third party without the consent of the servient tenement holder.

Facts:

Van der Merwe was the owner of a dominant tenement that was subject to a servitude of right of way in favor of Van Wyk NO, the owner of the servient tenement. Van der Merwe transferred the dominant tenement to a third party, without the consent of Van Wyk NO.

Van Wyk NO objected to the transfer of the servitude. He argued that the servitude was personal to Van der Merwe and that it could not be transferred to a third party without his consent.

Key Facts:

• Van der Merwe was the owner of a dominant tenement that was subject to a servitude of right of way in favor of Van Wyk NO, the owner of the servient tenement.
• Van der Merwe transferred the dominant tenement to a third party, without the consent of Van Wyk NO.
• Van Wyk NO objected to the transfer of the servitude.
• He argued that the servitude was personal to Van der Merwe and that it could not be transferred to a third party without his consent.

Court's Decision

The Eastern Cape Division of the Supreme Court (EDS) held that Van der Merwe could transfer the servitude to a third party without the consent of Van Wyk NO. The EDS reasoned that a servitude is a real right that is attached to the land, and that it can be transferred to a third party along with the land.

The EDS also held that the fact that the servitude was created in Van der Merwe's favor did not mean that it was personal to him. The EDS held that the servitude could be enjoyed by any owner of the dominant tenement.

Application of the Law to the Facts of the Case

The EDS applied the law to the facts of the case and found that Van der Merwe could transfer the servitude to a third party without the consent of Van Wyk NO. The EDS held that the servitude was not personal to Van der Merwe and that it could be enjoyed by any owner of the dominant tenement.

Conclusion

The EDS's decision in Van der Merwe v Van Wyk NO 1921 EDS 298 is a significant case because it clarifies the law relating to the transfer of servitudes. The decision emphasizes that a servitude is a real right that is attached to the land, and that it can be transferred to a third party along with the land.

The decision also provides guidance to landowners and servient tenement holders on the transfer of servitudes. Landowners should be aware that they can transfer servitudes to third parties without the consent of the servient tenement holders. Servient tenement holders should be aware that they cannot prevent landowners from transferring servitudes to third parties.