Authored By: Gareth Mthokozisi Moyo
University of Johannesburg
Abstract
This essay considers whether, and on what basis, a specified right of way may be relocated in South African law. The discussion centres on the Supreme Court of Appeal’s decision in Linvestment CC v Hammersley and Another 2008 (3) SA 283 (SCA), which marked a significant departure from earlier authority. Prior to this decision, South African law followed a strict rule that a specified servitude, once fixed and registered, could not be altered without the consent of both the dominant and servient owners. In Linvestment, the court held that relocation may nevertheless be permitted where the servient owner suffers material inconvenience, the dominant owner is not prejudiced, and the costs of relocation are borne by the servient owner. While this approach introduces greater flexibility and responds to changing land-use needs, it raises concerns regarding legal certainty, the security of registered real rights, and the constitutional protection of property. These concerns are explored through a comparison with Scots law, where relocation is allowed only under judicial or tribunal supervision following statutory reform. The essay argues that, although Linvestment reflects a pragmatic development, further clarification or legislative intervention is required to strike an appropriate balance between flexibility and certainty.
The relocation of a specified servitude or right of way in terms of South African Property Law.
1. Introduction
A servitude is a limited real right which allows the holder of it to utilise the property of another for their own use and enjoyment.1 There are two types of servitudes which are personal and praedial.2 A right of way is a type of praedial servitude. It gives the owner of one property (the dominant tenement) the right to cross over another’s land (the servient tenement).3 Like other servitudes, it must meet certain requirements: it must benefit the dominant property, it must burden the servient land, and it must be registered to have effect against third parties.4
Traditionally, once the path of a specified right of way was fixed and registered, it could not be moved unless both landowners agreed.5 This strict approach ensured certainty in land law, but it also created practical problems. For example, if the route later cut across land needed for development, the servient owner was stuck unless the dominant owner consented.6
This changed in Linvestment CC v Hammersley, where the Supreme Court of Appeal (SCA) allowed the servient owner to move a specified route without the dominant owner’s consent, as long as three requirements were met.7 The case marked a break from earlier authority, and while it brought flexibility, it also raised serious concerns about the security of property rights.
The aim of this essay is to examine the South African position before and after Linvestment, to evaluate the criticisms of the current rule, to compare it with the Scottish position, and to suggest what South Africa should do going forward.
2. The South African Position on Relocation Without Consent
2.1) The Traditional Approach
Under Roman-Dutch law, servitudes had to be exercised civiliter modo, which meant in a way that placed as little burden as possible on the servient land.8If the route was described in general terms, the servient owner could propose a different path, provided the dominant owner was not worse off.9 But once the servitude was specified, its location was considered fixed.
South African courts confirmed this principle. In Rubidge v McCabe the Appellate Division held that a servitude of passage over a specific road could not be moved without agreement.10 In Van Heerden v Coetzee, the court rejected an attempt to impose a “better” route, stressing that the parties’ agreement had to be respected.11 The leading case, Gardens Estate Ltd v Lewis, drew a sharp line between general and specified servitudes: general routes could be adapted, but specified ones could not.12
This approach offered clear advantages. It upheld certainty, protected registered rights, and respected the consensual basis of servitudes. The Deeds Registries Act reinforced this by providing that a registered servitude binds all future owners.13 Van der Walt argued that the rule ignored changing circumstances and locked landowners into outdated arrangements.14 Muller and others pointed out that it hindered development and efficient land use.15
2.2) The Current Position
In Linvestment CC v Hammersley, the servient owner faced serious inconvenience from the specified route. The issue before the SCA was whether the servient owner could change the route without the dominant owner’s consent.
The court held that unilateral relocation is possible, but only if three conditions are met: (a) the servient owner suffers material inconvenience if the servitude remains where it is, (b) the dominant owner suffers no prejudice, and (c) the servient owner pays for the relocation.16
This decision represented a clear departure from the earlier rule in Gardens Estate. The SCA justified it by referring to comparative law, constitutional powers to develop the common law, and broader policy concerns about fairness and efficiency.17
2.3) Criticism of the current position
Although the decision introduced flexibility, it has been criticised on several grounds:
a) Weak historical support
The SCA leaned heavily on Meijers’ draft Dutch Civil Code, which was never adopted in South Africa.18 This was a shaky foundation for overturning settled precedent rooted in Roman Dutch law and earlier case law.
b) Thin comparative reasoning
The court cited foreign systems that allow relocation, but it did so superficially, relying mainly on summaries in secondary texts like Cusine and Paisley.19 It did not fully explain why those systems changed their law, or whether their contexts were comparable to South Africa’s.
c) Uncertainty for real rights
Servitudes are registered rights meant to give certainty and notice to all.20 Allowing one party to change a route unilaterally undermines that certainty. As Van der Walt warns, security of title is a cornerstone of South African property law.21
d) Concerns of Constitutionality
The SCA relied on its power under section 173 of the Constitution to develop the common law, but it did not engage deeply with section 25, which protects property rights.22 Relocation could arguably amount to a deprivation of property for the dominant owner. While not an expropriation (since nothing is taken for public use), the lack of constitutional analysis leaves uncertainty.23 Van der Walt has criticised this omission, arguing that any development of the common law that interferes with property rights must be measured against the constitutional property clause.24
e) Lack of clear procedure
The court did not spell out whether relocation requires a court order.25 Without judicial oversight, disputes are likely, and servient owners could attempt arbitrary relocations. In contrast, systems like Scotland’s require tribunal or court approval, which provides a safeguard.
3. Scots Law on Relocation of Rights of Way
3.1) The Traditional Approach
Simalarily to South Africa, Scots law originally took a rigid line. In Ewart v Cochrane, the court insisted that servitudes must be exercised exactly as granted.26 In Bowers v Kennedy, the court refused to allow a change in the location of a right of way without consent.27 And while Moncrieff v Jamieson is best known for recognising a servitude of parking, it too
emphasised the enduring and certain nature of servitude rights.28
This traditional approach gave certainty but attracted criticism for being inflexible and sometimes unfair, especially when circumstances changed.29
3.2) The Modern Approach
Reform came through the Title Conditions (Scotland) Act 2003, which allows servitudes to be varied or discharged by application to the Lands Tribunal.30 This statutory route provides clear criteria and a formal process.
Courts have also shown more flexibility. In Moncrieff v Jamieson, the House of Lords acknowledged that servitudes must adapt to modern realities.31 In Anderson v Brattisani and Compugraphics International v Nikolic, the Scottish courts confirmed that relocation can be permitted when it is fair and does not disadvantage the dominant owner.32
The Scottish model strikes a balance: relocation is possible, but only under tribunal or court supervision, which ensures fairness while preserving certainty.33
4. Comparative Analysis
Both South Africa and Scotland began with a strict rule against relocation without consent. Both later moved towards flexibility. The difference is in how the shift occurred.
In South Africa, the change came through judicial development in Linvestment. While it introduced sensible conditions, it left many questions unanswered, especially around procedure and constitutional implications. Scotland, by contrast, reformed its law through statute, providing a clear process and requiring tribunal or court approval.
The Scottish model is stronger. It combines flexibility with safeguards, ensuring that relocation does not undermine certainty or fairness such as only allowing relocation where it is fair and efficient.34 South Africa’s current position, while moving in the right direction, lacks the same clarity and security.
6. Conclusion
The Linvestment case brought much-needed flexibility to South African servitude law but left gaps in history, doctrine, and procedure. Scots law, with its statutory reform, offers a more balanced and reliable model. South Africa should follow this example to ensure that servitude law remains both fair and certain in a changing society.
Bibliography
Books
1. Badenhorst PJ, Pienaar JM & Mostert H Silberberg and Schoeman’s The Law of Property (5th ed)
2. Cusine DJ & Paisley RRM Servitudes and Rights of Way (1998)
3. Muller G, Brits R, Boggenpoel ZT, Dhliwayo P, Erlank W, Marais EJ & Slade B General Principles of South African Property Law (2024)
4. Van der Merwe CG Sakereg 2 ed (1989)
5. Van der Walt AJ The Law of Servitudes (2016)
Journal Articles
1. French S “Relocating Easements: Restatement (Third), Servitudes 4.8(3)” (2003) 38 Real Property Probate and Trust Journal 1
2. Lovett JA “A New Way: Servitude Relocation in Scotland and Louisiana” (2005) 9 Edinburgh Law Review 352
3. Reid K “Easements and Real Burdens in Scots Law” (2006) 10 Edinburgh Law Review 64
4. Van der Walt AJ “Development of the Common Law of Servitudes” (2009) 126 South African Law Journal 676
Cases
1. Anderson v Brattisani 2019 CSOH 36
2. Bowers v Kennedy 1890 17 R 1106
3. Compugraphics International v Nikolic [2020] CSIH 25
4. Ewart v Cochrane 1861 4 Macq 117
5. First National Bank of SA Ltd t/a Wesbank v Commissioner, SARS; First National Bank v Minister of Finance 2002 4 SA 768 (CC)
6. Gardens Estate Ltd v Lewis 1920 AD 144
7. Linvestment CC v Hammersley and Another 2008 (3) SA 283 (SCA) 8. Moncrieff v Jamieson 2007 UKHL 42
9. Rubidge v McCabe 1913 AD 433
10. Smit v Russouw 1913 CPD 847
11. Van Heerden v Coetzee 1914 AD 167
Legislation
1. Constitution of the Republic of South Africa, 1996
2. Deeds Registries Act 47 of 1937
3. Title Conditions (Scotland) Act 2003
1 Muller G, Brits R, Boggenpoel ZT, Dhliwayo P, Erlank W, Marais EJ & Slade B General Principles of South African Property Law (2024) 281
2 n 1 above
3 Van der Merwe Sakereg (2d ed) 459
4 Badenhorst, Pienaar & Mostert Silberberg and Schoeman’s The Law of Property (5th ed) 323 5 Gardens Estate Ltd v Lewis 1920 AD 144 at 150
6 Muller, Brits, Boggenpoel, Dhliwayo, Erlank, Marais & Slade General Principles of South African Property Law (2024) 242
7 Linvestment CC v Hammersley and Another 2008 (3) SA 283 (SCA) paragraph 35
8 n 3 above
9 Smit v Russouw 1913 CPD 847 at 852
10 Rubidge v McCabe 1913 AD 433 at 438
11 Van Heerden v Coetzee 1914 AD 167 at 173
12 Gardens Estate Ltd v Lewis 1920 AD 144 at 150 – 151
13 Deeds Registries Act 47 of 1937
14Muller G, Brits R, Boggenpoel ZT, Dhliwayo P, Erlank W, Marais EJ & Slade B General Principles of South African Property Law (2024) 115
15 Muller G, Brits R, Boggenpoel ZT, Dhliwayo P, Erlank W, Marais EJ & Slade B General Principles of South African Property Law (2024) 242
16 Linvestment CC v Hammersley and Another 2008 (3) SA 283 (SCA) paragraph 35
17 Linvestment CC v Hammersley and Another 2008 (3) SA 283 (SCA) paragraphs 23 – 31
18 Linvestment CC v Hammersley and Another 2008 (3) SA 283 (SCA) paragraph 27
19 Cusine & Paisley Servitudes and Rights of Way (1998) 387
20 Deeds Registries Act 47 of 1937
21 Van der Walt AJ Law of Servitudes (2016) 122
22 Constitution of the Republic of South Africa, 1996 s 173
23 First National Bank of SA Ltd t/a Wesbank v Commissioner, SARS; First National Bank v Minister of Finance 2002 (4) SA 768 (CC) paragraph 100
24 Van der Walt AJ “Development of the Common Law of Servitudes” (2009) 126 South African Law Journal 676 at 689
25 Lovett JA “A New Way: Servitude Relocation in Scotland and Louisiana” (2005) 9 Edinburgh Law Review 352 at 360
26 Ewart v Cochrane 1861 4 Macq 117 at 123
27 Bowers v Kennedy 1890 17 R 1106 at 1112
28 Moncrieff v Jamieson 2007 UKHL 42 paragraph 25 – 30
29 Reid K “Easements and Real Burdens in Scots Law” (2006) 10 Edinburgh Law Review 64 at 78 30 Title Conditions Act 2003 s 90
31 Moncrieff v Jamieson 2007 UKHL 42 paragraph 47
32 Anderson v Brattisani [2019] CSOH 36 paragraph 34; Compugraphics International v Nikolic [2020] CSIH 25 paragraph 22
33 Cusine & Paisley Servitudes and Rights of Way (1998) 389
34 French S “Relocating Easements: Restatement (Third), Servitudes § 4.8(3)” (2003) 38 Real Property Probate and Trust Journal 1 at 8
