FILTERS:

Johl

10 May 2012

Neutral citation: Johl and Another v Nobre and Others (23841/2010 [2012] ZAWCH 20) 20 March 2012.
Coram: Meer J
Heard: 7 March 2012
Delivered: 20 March 2012

In this case the owner of the 'dominant property' had a right of way over his neighbour's 'servient property' servitude.  Over the years the 'dominant' owner increased the security measures on this servitude to the point where it was protected by two security gates, CCTV and an armed guard - and the second owner then found that he no longer had access to it from one of the points which he had traditionally used. His application for a remote control to open the security gates was turned down by the first owner on the grounds that it increased the security risk - especially if, as was his custom, the fairly elderly second owner used the servitude for walking his dogs, as was his practice.

In giving judgement in the application for a final interdict, Meer J. drew attention to the principle of reasonableness which governs the relationship between the dominant and servient owners. At [13}" The holder of the servitude must exercise the servitude civiliter modo, that is, in a civilized and considerate way. In Rabie v De Wit 1946 CPD 346 at 351 civiliter modo conduct was found to be use 'in a manner that will cause the least damage or inconvenience to the servient property'".  It therefore follows that the holder of the servitude may not increase the burden on the servient property beyond the express or implied terms of the servitude [14], nor may the exercise of entitlements of the dominant owner prevent the servient owner from the normal exploitation of his property [15].  In interpreting the servitude agreement the Court seeks the intention of the parties from the terms of the agreement itself.  The words must be read in context and in the light of the surrounding circumstances prevailing at the time of the creation of the servitude. A servitude agreement should be interpreted as narrowly as possible and ... Where the wording of the servitude is clear, it must be given the ordinary grammatical meaning and in such circumstances the Court will not have recourse to the surrounding circumstances [16].

In applying the legal principles and giving the ordinary grammatical meaning of the words of the servitude in the title deed, namely "a servitude of right of way", the exclusion by the respondents of the applicants from the driveway is a restriction contrary to the servitude agreement and a change of the nature of the servitude to a security buffer for their property.  Meer J. agreed with the applicants that the question of security is largely irrelevant to the issues of the case in that the applicants simply wanted to be allowed to use the servitude area as a walkway, for which purpose they need a remote control device for the automatic gate.  The respondents' denial of their right to the normal use of the servitude area was therefore an infringement to the right of the applicants.

Full judgment

Submit your comment:
 
Name
EMail
Comments
Security Picture (click to change)
Word shown in picture: