Servitude

The facts in South African National Parks v Weyer-Henderson and Others 2007 (3) SA 109 (SEC) were as follows: The plaintiff sought to eject the defendants from its property for unlawful occupation. The defendants claimed to be in lawful occupation in terms of a registered servitude entitling their stock to graze down to and be watered from a dam on the property, up to the water's edge. After the dam had been built in the early 1920s, it had silted up and the dam wall had to be considerably raised, which led to the plaintiff's predecessors' land and in addition had caused them a fluctuating loss of some grazing rights on plaintiff's (and his predecessor's) property, depending on the level of the dam.

Jones J was asked to decide on the following three matters:

• 1. The extent of the area to which the servitude applied.
• 2. Whether the servitude had been extinguished by an order of the Water Court in 1950.
• 3. Whether the defendant had acquired the servitude by prescription.

First, as far as the extent of the servitude was concerned, the court held that since the extent of the area (to which the servitude applied) could not be determined exclusively from a study of the words used in the title deeds or other relevant documents, evidence from surrounding circumstances should be taken into account in its interpretation.

Based on the available evidence the court concluded that the defendants had the right to graze over the entire portion to which they claimed they were entitled (ie, the entire area), since they and their predecessors had done so since at least 1935 and that was how third parties (including the plaintiff and its predecessors) had always understood the defendant's rights over the years.

Secondly, as far as the possible extinction of the defendant's grazing rights were concerned, it held that these had not been extinguished by the raising of the dam wall, and that there was thus no room for a conclusion that the defendant had lost his grazing rights altogether and had been compensated for this by the Water Court.

Thirdly, the lapse of the period of 30 years necessary for acquisitive prescription had been established, in terms of either one or both of the 1943 or 1969 Prescription Acts, regardless of whether the servitude had been extinguished by the order of the Water Court.

Further, the long periods when a part of the whole of the entire area was under water did not affect the defendant's continuous exercise of his grazing rights. These grazing rights were inherent in the nature of the particular grazing right because the area varied with the water level in the dam. Absolute continuity was not required and the degree of continuity depended on the nature of the right, the property and the use.

It was thus clear that the defendant had grazed his stock on the entire area on the strength of a confident assertion that he had a legal right to do so, and the interference was thus irresistible that he had the requisite intention. Even in the absence of an existing earlier servitude, the defendant had proved all the requirements for the acquisition of a servitude to graze and water his stock over the entire area by prescription.

The plaintiff's claim was accordingly dismissed with costs.

First published by: De Rebus - The SA Attorneys Journal

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