SERVITUDES OF RIGHT OF WAY
“The long and winding road
That leads to your door
Will never disappear…”
– John Lennon and Paul McCartney
MORE OFTEN than not, land owners do not understand the nature and consequence of servitudes in respect of their land. This is largely due to the fact that South African property law hinges on old Roman-Dutch law, which is the foundation of our common law.
In a recent case a full bench of the Western Cape High Court held that the Roman-Dutch principle of blokland is still very much alive in our law today. A company in Stellenbosch subdivided its land into two portions. The western landlocked portion was transferred to Fleurbaix Farm (Pty) Ltd and the eastern portion, accessible by public road, was transferred to Van Rhyn. By operation of law, and without having being required to be registered in the Deeds Registry, Fleurbaix had an automatic right of way servitude over Van Rhyn’s property in order to access the public road. Later, Van Rhyn made improvements and altered the landscaping of his property. In doing so Van Rhyn unilaterally closed Fleurbaix’s access to the right of way and replaced it with a right of way running across the northern section of his property. Fleurbaix was not happy with this new arrangement and approached the court.
Judge Binns-Ward pointed out that the two properties were what were known in Roman-Dutch Law as blokland. The general rule with regard to blokland is that the landlocked property is automatically entitled to a right of way servitude over the adjoining subdivision in order to access a public road. In terms of the principle of blokland Fleurbaix was entitled to choose the path of the servitude over Van Rhyn’s land. The caveat to this rule is that Van Rhyn can unilaterally alter the path of the right of way, provided that this does not amount to unreasonable conduct and does not prejudice Fleurbaix’s common law right to access the public road through Van Rhyn’s property.
Van Rhyn did not act unreasonably by altering the path of Fleurbaix’s right of way as in doing so no prejudice was created.
Van Rhyn & Others NNO v. Fleurbaix Farm (Pty) Ltd 2013 (5) SA 521
Source: LawLetter: MacRobert Attorneys