AJ van der Walt 'Sharing servitudes' Not to be copied, distributed or

© AJ van der Walt ‘Sharing servitudes’

Not to be copied, distributed or cited prior to publication without the author’s written

approval.

Background text, keynote paper to be delivered at the annual meeting of the Ius

Commune Research School, Edinburgh, November 2014

To be submitted to a law journal for publication

Draft 3: 6 November 2014

29427 words

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Sharing servitudes*

AJ van der Walt

B Iur et Art Hons (BA) LLB LLD (Potchefstroom) LLM (Witwatersrand)

Distinguished Professor, Stellenbosch University and South African Research Chair in Property Law**

___________________________________________________________________

1 Introduction

1.1 Dyal-Chand’s interest-outcome, sharing model

Rashmi Dyal-Chand argues that sharing, a feature of American property law, has the

potential to soften the unnecessarily harsh effect of exclusionary remedies but that

this potential is underutilised. Ownership discourse, dominated as it is by the

vocabulary, rhetoric and logic of exclusion, tends to pre-determine the outcome of

property disputes so that sharing, its conceptual opposite, is under-represented in

property remedies. Sharing remedies are marginalised because exclusion is treated

as the ‘real’ core of property law and because courts do not have the tools to fashion

non-exclusionary remedies.1 Consequently, courts are constrained in their remedial

* Extended text for a keynote paper at the annual meeting of the Ius Commune Research School, Edinburgh, 27 November 2014. Thanks to Sonja van Staden for research support and to Sonja van Staden, Zsa-Zsa Boggenpoel, Sue-Mari Viljoen, Richard Shay, Gustav Muller, Janke Strydom, Priviledge Dhliwayo, Elsabé van der Sijde, Dorothy Gruyaert, Rashmi Dyal-Chand, Kenneth Reid and Lars van Vliet for valuable comments. Remaining shortcomings are my own.

** The South African Research Chair in Property Law (SARCPL) is funded by the South African

national Department of Science and Technology (DST), administered by the National Research Foundation (NRF) and hosted by Stellenbosch University. The views expressed in this article are those of the author and should not be attributed to any of these institutions.

1 R Dyal-Chand ‘Sharing the cathedral’ (2013) 46 Connecticut LR 647-723. It is illuminting to compare

Dyal-Chand’s analysis with GS Alexander ‘Governance property’ (2012) 160 University of Pennsylvania LR 1853-1887. Alexander mentions sharing explicitly only once at 1881, but his discussion of governance property (defined at 1856 as multiple-ownership property that requires governance norms to regulate the internal relations) overlaps significantly with what Dyal-Chand

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options, even when the intentions, expectations of fairness and sense of reliance of

either or both parties point away from exclusionary outcomes.2 In the result,

judgments address problems of fairness and distributive justice far less than they

might have done if the courts were able to devise a wider range of remedies.3

Relying on examples from the medieval writ system;4 Oliver Wendell Holmes’s

outcomes-focused view of the law through the eyes of the ‘bad man’;5 and Robert

Mnookin’s negotiation theory,6 Dyal-Chand proposes her sharing-oriented, interest-

outcome approach as an alternative to the dominant exclusion model7 for deciding

‘cases where legitimate interests to disputed property exist on more than one side of

the dispute’ and where title alone should therefore not determine the outcome.8 At

the level of theory, Dyal-Chand argues, it matters a great deal whether property law

is grounded in a sharing approach or in a model that focuses on title and exclusion.9

She points out that a broader palette of sharing-focused remedial options did exist in

describes as sharing remedies. It could probably be said that all sharing remedies, in Dyal-Chand’s terminology, create governance property in Alexander’s terminology.

2 R Dyal-Chand ‘Sharing the cathedral’ (2013) 46 Connecticut LR 647-723 652.

3 R Dyal-Chand ‘Sharing the cathedral’ (2013) 46 Connecticut LR 647-723 655. At 652 Dyal-Chand

explains that a result of the ownership-exclusion focus is that courts tend to create exceptions to rights-enforcement in cases where blunt exclusion rules would produce unacceptably harsh results, instead of actively fashioning a wider range of remedies that enforce sharing in those cases.

4 R Dyal-Chand ‘Sharing the cathedral’ (2013) 46 Connecticut LR 647-723 656-663.

5 OW Holmes ‘The path of the law’ (1897) 10 Harvard LR 457-478, republished (1997) 110 Harvard

LR 991-1009. See R Dyal-Chand ‘Sharing the cathedral’ (2013) 46 Connecticut LR 647-723 672-676, 700-712.

6 RH Mnookin et al Beyond winning: negotiating to create value in deals and disputes (2000); see R

Dyal-Chand ‘Sharing the cathedral’ (2013) 46 Connecticut LR 647-723 677-678, 710.

7 For an explanation of the interest-outcome approach see R Dyal-Chand ‘Sharing the cathedral’

(2013) 46 Connecticut LR 647-723 676-683.

8 R Dyal-Chand ‘Sharing the cathedral’ (2013) 46 Connecticut LR 647-723 654. At 669 Dyal-Chand

explains that she especially focuses on what H Smith ‘Property and property rules’ (2004) 79 New York University LR 1719-1798 1756 identifies as governance property, where decision makers cannot avoid more directly regulating use conflicts. GS Alexander ‘Governance property’ (2012) 160 University of Pennsylvania LR 1853-1887 (like others) argues that governance property is more common than Smith recognises.


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the common law10 and that when it was lost, property law ‘surrendered its capacity to

directly accomplish broad distribution of uses’.11 As a pragmatic matter, she claims,

courts often display an instinct to favour sharing of property resources, but they lack

the vocabulary and remedial building blocks to devise suitable remedies.12 On the

theoretical level, there are several reasons why sharing was displaced by the

efficiency-driven, information-cost-reducing focus on ownership and exclusion.13

Dyal-Chand proposes the interest-outcome approach as an alternative

template14 in core areas of property such as adverse possession, trespass, and

implied easements, where the courts are sensitive to the possibility of devising a

wider range of remedies but apparently unable to do so.15 The interest-outcome

alternative has several benefits: it resonates with recent developments in property

theory;16 allows courts to develop outcomes in property disputes that avoid the harsh

effects of blunt exclusion remedies;17 and expands a useful middle space between

ownership positions and commons solutions.18 Furthermore, this option merely

requires a conceptual – as opposed to a substantive – adjustment of property

10

R Dyal-Chand ‘Sharing the cathedral’ (2013) 46 Connecticut LR 647-723 657-663, discussing the medieval writ system.



13 R Dyal-Chand ‘Sharing the cathedral’ (2013) 46 Connecticut LR 647-723 663-672, discussing the

shift towards outcomes brought about by G Calabresi & AD Melamed ‘Property rules, liability rules, and inalienability: one view of the cathedral’ (1972) 85 Harvard LR 1089-1128; the reasons why the binary implied by the analysis of Calabresi & Melamed was always limiting as far as remedies are concerned; and the way in which their framework was extended to focus even more on ‘bundled’ rights, i e away from sharing.



16 See especially R Dyal-Chand ‘Sharing the cathedral’ (2013) 46 Connecticut LR 647-723 676, 678-

679, 683-698, 704-705, 712-715.

17 See especially R Dyal-Chand ‘Sharing the cathedral’ (2013) 46 Connecticut LR 647-723 676-680,

704-712, 715-722.


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doctrine and theory.19 Dyal-Chand’s interest-outcome approach deliberately builds

on recent scholarship that emphasises the moral nature of human interaction with

property. She draws attention to ways in which property use – the main indicator of

interests in property and thus a principal factor in deciding upon outcomes20 –

exposes these moral connections and makes them relevant to the judicial inquiry into

remedial possibilities.21 She particularly uses the progressive property theorists’

critique22 of the moral poverty of efficiency theory as a basis from which to develop

an alternative approach that is explicitly informed by notions of morality, fairness,

and distributive justice.

1.2 Dyal-Chand’s sharing examples from American property law

Dyal-Chand illustrates her argument with examples from American case law that

show how courts are drawn to sharing remedies in core areas of property law but

‘default to a more formalistic affirmation of bundled ownership’ because they lack the

19

R Dyal-Chand ‘Sharing the cathedral’ (2013) 46 Connecticut LR 647-723 705, explained further at 705-712, 712-713.

20 R Dyal-Chand ‘Sharing the cathedral’ (2013) 46 Connecticut LR 647-723 714. R Dyal-Chand

‘Useless property’ (2011) 32 Cardozo LR 1369-1426 expands upon her proposition that the use of property should attract greater attention, see especially at 1373-1374. Compare further EM Peñalver ‘Land virtues’ (2009) 94 Cornell LR 821-888 840.


22 A group of theorists identified themselves with the notion of progressive property in GS Alexander,

EM Peñalver, JW Singer & LS Underkuffler ‘A statement of progressive property’ (2009) 94 Cornell LR 743-744, but Gregory Alexander already used the term ‘progressive property’ a decade earlier in an overview of the contribution of the critical legal studies movement to property theory, see GS Alexander ‘Critical land law’ in S Bright & J Dewar (eds) Land law: themes and perspectives (1998) 52-78. Scholars did not sign the Statement but adopted its premises; see e g JA Lovett ‘Progressive property in action: the Land Reform (Scotland) Act 2003’ (2011) 89 Nebraska LR 739-818; ET Freyfogle ‘Private ownership and human flourishing: an exploratory overview’ (2013) 24 Stellenbosch LR 430-454; R Dyal-Chand ‘Sharing the cathedral’ (2013) 46 Connecticut LR 647-723. Compare further NM Davidson ‘Property and relative status’ (2009) 107 Michigan LR 757-818; NM Davidson ‘Property’s morale’ (2011) Michigan LR 437-488.

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vocabulary and remedial tools to fashion sharing remedies.23 In nuisance law, she

cites Prah v Maretti24 as an example where the majority of the court relied on

considerations25 that relate to actual use of property as an indication of competing

interests that require a sharing outcome. However, she argues, apart from the fact

that Prah v Maretti does not represent the majority view on the question whether

property users can claim non-consensual rights to light and air beyond the

boundaries of their own land,26 even courts that do consider sharing remedies

‘effectively snap back to attention’ at the remedial stage. Evidence of this reflexive

return to orthodoxy, formalistically affirming that ownership is the ultimate right,

appears from cases where the courts award damages ‘where the “socially beneficial”

nature of the defendant’s ownerhip warrants protecting its bundled form’, instead of

granting an injunctive remedy that would enforce sharing. The court’s compensation

award to Prah is indicative of the remains of an exclusionary, ownership-dominated

approach, whereas an injunction that would have forced Maretti to move his building

a few feet so as to allow Prah continued use of his solar panels, without imposing

any significant burden on Maretti, would have signified openness for an interest-

outcome sharing approach. The exclusionary approach implied in the court’s

compensation award is based purely on Maretti’s ownership, whereas a sharing

approach would have relied on both parties’ actual use of and interest in their

23

R Dyal-Chand ‘Sharing the cathedral’ (2013) 46 Connecticut LR 647-723 688-699, 715-722.

24 321 N W 2d 182 184 (Wis 1982).

25 The ubiquity of state regulation of land use for the benefit of the general welfare; the fact that the

claimant’s use of sunlight energy was part of a new social and economic trend that contributed to economic development and welfare; and the fact that this use of the claimant’s land could be balanced against the competing right to develop on the neighbouring land free from restrictions. See R Dyal-Chand ‘Sharing the cathedral’ (2013) 46 Connecticut LR 647-723 685, 686-687.

26 R Dyal-Chand ‘Sharing the cathedral’ (2013) 46 Connecticut LR 647-723 686 fn 211 cites the

conflicting case law.

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respective land parcels, seen in a social and economic context where Prah’s energy-

conserving use of his property might have carried more weight.

In the area of adverse possession Dyal-Chand identifies a similar ownership-

inspired, all-or-nothing outcome in the case law: if the claimant successfully proves

the requirements for adverse possession she wins everything and the ‘true owner’

loses everything, but if she fails to prove the requirements (even on a technicality)

the opposite holds, in both cases regardless of the effect that this outcome has on

either party’s previous or future use of the property or on the local community. In

current adverse possession doctrine, she argues, the rich potential for sharing ‘is

utterly inchoate because, at the remedial stage, courts do the opposite of creating

opportunities to share and instead grant fully bundled ownership to either the true

owner or the adverse possessor.’27 Based on her analysis of Joseph v Whitcombe28

and Van Valkenburgh v Lutz29 Dyal-Chand concludes that adverse possession

doctrine limits the range of outcomes that should be possible and nudges courts

towards winner-takes-all bundled-rights outcomes rather than remedies that would

allow for shared or group rights; proposed uses not yet acted upon by either party; or

hybrid uses that take advantage of the sophistication of long-term land use

planning.30 In practical terms, a decision that either grants or denies an adverse

possession claim on the basis of a decision whether the possessor provided

sufficient proof to completely dislodge the true owner’s right, and which therefore

awards fully bundled ownership rights to either party while the other party loses

27

R Dyal-Chand ‘Sharing the cathedral’ (2013) 46 Connecticut LR 647-723 688.

28 719 N Y S 2d 44 45 (NY App Div 2001). See R Dyal-Chand ‘Sharing the cathedral’ (2013) 46

Connecticut LR 647-723 688-691.

29 106 N E 2d 28 28-30 (NY 1952). See R Dyal-Chand ‘Sharing the cathedral’ (2013) 46 Connecticut

LR 647-723 691-693.


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whatever use interest it had, indicates loyalty to the exclusionary, ownership-oriented

approach. An interest-outcome approach, on the other hand, would take full account

of both parties’ actual use (or non-use) of the property, in its physical, social and

economic context and with due regard for its effect on the community and society at

large, and would possibly enforce some kind of physical or temporal sharing of the

property. Significantly, an interest-outcome approach might result in unusual

outcomes, such as awarding the adverse possessor a time-limited use right or a

limited, specific-use right, while upholding the true owner’s residual right; or awarding

the true owner compensation if either ownership or a more limited right is awarded to

the adverse possessor.31 As it stands, adverse possession doctrine confirms winner-

takes-all outcomes that focus on exclusionary title and allows no room for sharing

solutions.

In the area of trespass Dyal-Chand argues that the public-interest exceptions

to trespass that emerged from State v Shack32 and other decisions in anti-

discrimination, public accommodations, and necessity cases display the courts’

inability to devise non-exclusionary, sharing remedies and their failure to take

advantage of the possibilities of equitable injunctive relief. As a result of the courts’

31

In terms of this approach it might therefore have been possible, in the English case that ended up in the final decision of the Grand Chamber of the European Court of Human Rights in JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 (GC), to award the Grahams either a time-limited or even a long-term, but use-specific right to further use the land for grazing, while upholding Pye’s ownership. Such a limited use award may or may not have been accompanied by a compensation award to Pye. The fact that the Grahams acquired full ownership even though they only ever used the property for grazing illustrates Dyal-Chand’s point about the zero-sum nature of adverse possession decisions.

32 277 A 2d 369 (NJ 1971). See R Dyal-Chand ‘Sharing the cathedral’ (2013) 46 Connecticut LR 647-

723 694-696. See further GS Alexander & EM Peñalver ‘Properties of community’ (2009) 10 Theoretical Inquiries in Law 127-160 149-154, who argue that it is difficult to justify or explain the result in Shack in economic or utilitarian terms, but easy to do so in terms of human flourishing. Compare EM Peñalver ‘Land virtues’ (2009) 94 Cornell LR 821-888 883-884. For an extensive, critical analysis of the decision in Shack see further R Dyal-Chand ‘Pragmatism and postcolonialism: protecting non-owners in property law’ forthcoming (2014) 63 American University LR (available at SSRN http://ssrn.com/abstract=2425897).

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focus on exclusion the notion of absolute ownership remains firmly in place,33 albeit

qualified by a growing list of exceptions that do not contribute substantively to the

development of more sophisticated, interest- and use-based remedies.

In the area of implied easements the courts traditionally do grant remedies

that create shared interests in property. Dyal-Chand describes decisions like Stoner

v Zucker,34 where the courts created shared interests in the form of implied

easements, as compelling and successful because they ‘seamlessly fill gaps

between the hard edges of ownership rights’ and avoid the bundling effects of either

blunt injunctions or simple damages awards, even when they also sometimes

capitulate to the formalism of ownership norms.35

1.3 The argument in this Article

In this Article I analyse examples from South African law against the backdrop of

Dyal-Chand’s interest-outcome approach and her notion of sharing as a remedial

option. This analysis serves as a platform for a broader theoretical and doctrinal

inquiry into the role that principles of democracy and fundamental freedoms play in

property law.36 I discuss examples of enforced sharing of property in two categories,

namely (private) servitude law (Part 2) and constitutional law (Part 3). Although I

restrict the detailed analysis in Part 2 to South African law, I add brief comparative

33

R Dyal-Chand ‘Sharing the cathedral’ (2013) 46 Connecticut LR 647-723 696.

34 83 P 808 809-810 (Cal 1906).


36 See the third ‘problem definition’ in the Mission of the Ius Commune Research School, available at

http://www.iuscommune.eu/school.aspx?type=M&context=DeSchool_Missie&language=English: ‘can principles of democracy and the rule of law be used as guiding principles and assessment criteria to evaluate processes of international integration (principles of democracy and rule of law as foundations of a ius commune), both on the domain of public law as well as on the domain of private law (to what extent do fundamental freedoms and constitutional rights also play a role in private law)?’

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notes on the corresponding doctrinal position in English, Scots, Dutch, Belgian and

German law. Comparable examples on enforced sharing in constitutional law are

scarce and consequently there are only a few brief comparative notes in Part 3. The

purpose of the comparative notes in both cases is to indicate where a broader

theoretical and doctrinal inquiry into the main issue (the role that principles of

democracy and fundamental freedoms play in property law) could begin outside of

South African law. I return to the theoretical and doctrinal inquiry in Part 4.

Part 2 of the Article reviews examples from South African (private) servitude

law that resemble Dyal-Chand’s analysis of American property law but, instead of

reviewing examples from property law generally, it focuses on servitudes.37 The

purpose is to consider the light that an explicitly stated interest-outcome approach

and the idea of sharing remedies can shed on well-known principles of servitude law.

The examples involve different situations where the common law enforces sharing of

property through the ex lege creation of a non-consensual servitude. In every

example I briefly review the principles that apply to the creation of the specific

servitude; the justifications taken into consideration when creating it ex lege; and

whether those principles and considerations reflect what Dyal-Chand describes as

an interest-outcome approach that might enable or justify the crafting of sharing

remedies. Part 2 concludes with a reflection on the constitutional effect and

implications of enforced sharing in servitude law, starting out from the hypothesis

that every enforced sharing of property might constitute a limitation on property that

must be justified in terms of the constitutional requirements.

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The examples I discuss are not conceptually or doctrinally tied together by their mutual origin in the category of servitudes, but given my current interest in servitude law I found it interesting to focus on examples that have some bearing on servitudes. (AJ van der Walt The law of servitudes (forthcoming 2015) is currently in preparation for publication as part of the series Juta’s Property Law Library). The focus on servitudes is interesting in any event because servitudes more or less always involve sharing of property.

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Part 3 of the Article expands the analysis to property conflicts where post-

1994 South African constitutional law requires sharing remedies. The examples in

this section emerge from constitutional rights and constitutionally inspired legislation

that demand enforced sharing. None of these examples necessarily amounts to the

creation of a servitude (or any right), nor does any of them involve servitude

language. However, the enforced sharing outcomes that the constitutional demands

bring about often resemble servitude-like rights to use someone else’s property.

These examples therefore link up with the preceding section, but they also extend

the discussion beyond the boundaries of (private) servitude law insofar as the

demand for the enforced sharing is not only non-consensual but specifically

constitutional in origin. In the discussion of each example I discuss the constitutional

obligation that necessitates sharing, the justifications that are forwarded for imposing

it on a property owner ex lege, and the outcome. In each case I consider whether the

process reflects what Dyal-Chand describes as an interest-outcome approach and

whether the outcome resembles what she describes as a sharing remedy. Towards

the end of Part 3 I reflect on the constitutional effect of enforced sharing in

constitutional law.

2 Enforced sharing in servitude law

2.1 Introduction: common-law servitude principles that require sharing

A one-on-one comparative discussion of Dyal-Chand’s American examples would be

unsatisfactory because their South African counterparts are not really comparable.38

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Two of the examples, namely Prah v Maretti 321 N W 2d 182 184 (Wis 1982) and Stoner v Zucker 83 P 808 809-810 (Cal 1906), do not lend themselves to a satisfactory comparative analysis because South African law does not recognise a non-consensual right to a view and has not yet developed any

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I chose to restrict the examples I discuss to servitude law because there are

interesting examples in private law of servitudes that are created by operation of law,

for reasons that are comparable to Dyal-Chand’s description of the interest-outcome

approach. In one sense, servitude law is a misleading area of private law for such an

analysis, since servitudes always involve some form of sharing property in any

event, even without the interest-outcome approach and the sharing remedial options.

However, in my view the fact that the servitudes in my examples are non-

consensual, created by operation of law, renders them suitable for analysis in Dyal-

Chand’s terms. In this Part I consider South African law on three examples where

servitudes are acquired by operation of law, namely on the basis of acquisitive

prescription, necessity and encroachment. To the extent that these examples

establish enforced sharing of property in servitude law they provide a useful basis for

a comparative discussion of Dyal-Chand’s notion of an interest-outcome approach to

property disputes and its capacity to expand the range of remedial options. Since

more or less comparable servitude institutions or principles exist in English, Scots,

German, Dutch and Belgian law, these examples also allow me to indicate where the

doctrinal and theoretical range of the analysis can extend beyond South African law.

2.2 Acquisition of a servitude by way of prescription

The law of acquisitive prescription (or adverse possession) generally confirms the

point that Dyal-Chand argues, namely that doctrinal adherence to an ownership-

dominated approach restricts remedial options that might involve sharing. In this

case law on the parallel access-to-sunlight question that came up in Prah v Maretti; South African law does not recognise implied servitudes of the kind that featured in Stoner v Zucker either. See further C Koch The right to a view: common law, legislation and the Constitution (2012); AJ van der Walt & C Koch ‘The right to protect an existing view: Ndlambe Municipality v Lester and Others (92/2011) [2012] ZAECGHC 33 (3 May 2012)’ (2013) 76 Journal for Contemporary Roman-Dutch Law (THRHR) 696-702.

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Article, I concentrate on acquisitive prescription of servitudes because sharing

solutions are not necessarily excluded by the prescriptive acquisition of servitudes,

since servitudes always involve some form of sharing. In the context of servitudes,

even adverse possession doctrine might therefore leave more room for a sharing

outcome. In South African law, the Prescription Act 18 of 1943 and the Prescription

Act 68 of 196939 provide that a servitude is acquired by prescription if the acquiror in

fact used or exercised the entitlements of a holder of a particular kind of servitude in

accordance with the requirements for acquisitive prescription,40 namely actual use or

exercise (quasi-possession) of the servitude entitlements for an uninterrupted41

period of 30 years.42 The 1969 Act describes the civil possession that is required for

acquisitive prescription in general, consisting of effective physical control over the

object and the intention to exercise control as owner,43 more pertinently as actual

39

The 1969 Act does not have retroactive effect and replaced the 1943 Act as from 1 Dec 1970. According to s 5 of the 1969 Act, the period of a prescription term that started prior to its commencement is governed by the 1943 Act, while the remainder is governed by the 1969 Act. Neither statute codifies the common law, which remains valid insofar as it has not been abolished or amended explicitly or by necessary implication: JC Sonnekus & JL Neels Sakereg vonnisbundel 2 ed (1994) 309. The owner’s remedy against anyone claiming or exercising rights with respect to the property, the rei vindicatio, does not prescribe: Staegeman v Langenhoven 2011 (5) SA 648 (WCC) para 28.

40 Registration is usually a requirement for the acquisition of real rights in land, but since acquisitive

prescription is an original method of acquisition, registration is not required for servitudes in land acquired by prescription, although registration is advised for the sake of publicity and legal certainty: Cillie v Geldenhuys 2009 (2) SA 325 (SCA) para 13.

41 Completion of the term can be prevented in either of two ways: temporarily if completion of the term

is postponed (s 3 of the 1969 Act) or permanently if the term is interrupted (s 4 of the 1969 Act). The prescription term is postponed when its completion is temporarily prevented because of the existence of a particular impediment or hindrance, for example if the owner of the servient land is temporarily legally incapable of protecting her own interests. In the case of interruption, the running of the term is permanently broken off and if prescription is still possible at all, a new term would have to start running from scratch, for example when the true owner has asserted her rights vis-à-vis the quasi-possessor by instituting eviction proceedings.

42 The principle of coniunctio temporum or accessio possessionis applies in the case of praedial

servitudes and therefore the terms during which successive users of the servitude exercised quasi-possession of the servitude entitlements are added together to calculate the prescription period; see s 6 of the Prescription Act 68 of 1969: ‘…for an uninterrupted period of thirty years or, in the case of a praedial servitude, for a period which, together with any periods for which such rights and powers were so exercised by his predecessors in title, constitutes an uninterrupted period of thirty years.’

43 Morkel’s Transport (Pty) Ltd v Melrose Foods (Pty) Ltd 1972 (2) SA 464 (W) 476F.

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exercise of the entitlements associated with a servitude of that particular kind, openly

and as of right.44

Superficially, this area of servitude law lends itself to analysis in Dyal-Chand’s

terms. In the case law dealing with prescriptive acquisition of servitudes, the courts

do not adhere to a blunt, ownership-focused exclusionary approach; they seem to

apply the requirements with due attention for the context of each case, the interests

that are involved and the desired outcome. However, these signs of what may

appear to be an interest-outcome approach are equivocal and inconsistent. For

instance, when an agent exercises control of the dominant property on the owner’s

behalf, acquisitive prescription of a servitude runs in favour of the owner of the

dominant land (in the case of praedial servitudes),45 and not in the agent’s favour.46

Similarly, there are limitations on the acquisition of a servitude by one co-owner or

for the benefit of one part of the co-owned land,47 although co-owners can acquire a

servitude by prescription in favour of the co-owned land.48 On the other hand, there

are indications that actual use (which Dyal-Chand describes as the most important

signifier of interest) plays an important part in the application of the requirements for

44

Sec 6 of the Prescription Act 68 of 1969. Sec 2(1) of the Prescription Act 18 of 1943 required that the servitude entitlements must have been exercised nec vi nec clam nec precario, usually translated as without force, stealth or permission. Under the 1943 Act the entitlements must possibly also have been exercised adversely to the rights of the landowner – the Act does not mention adverse possession as a separate requirement but this requirement was developed in case law. South African law does not require bona fides and therefore a mala fide possessor who satisfies the requirements can also acquire a servitude prescriptively.

45 It is possible in principle to acquire a personal servitude by prescription but this does not seem to

be a common occurrence: CG van der Merwe Sakereg 2 ed (1989) 533.

46 In Forellendam Bpk v Jacobsbaai Coastal Farms (Pty) Ltd 1993 (4) SA 138 (C) the claim for

prescriptive acquisition of a servitude failed because of lack of proof that one owner of the dominant land or its tenants had actually used the rights of way during a certain part of the prescription period.

47 The problems mostly relate to the principle that one co-owner cannot acquire a servitude for himself

only or for an undivided part of the dominant land only, in other words the indivisibility principle discussed by Voet 8.4.9-10, 8.6.1. The scope and application of these principles are discussed and distinguished in Mocke v Beaufort West Municipality 1939 CPD 135.

48 CG van der Merwe & MJ de Waal ‘Servitudes’ in WA Joubert & JA Faris (eds) The law of South

Africa vol 24 2 ed (2010) para 614; Mocke v Beaufort West Municipality 1939 CPD 135 140.

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acquisitive prescription. The clearest example is the fact that the courts consider the

nature of the servitude that is claimed as the principal indicator of what actual

exercise of that right should entail. If the servitude that is claimed to have been

established by prescription is a right of way, the claimant must establish that she

actually used or exercised the entitlements usually associated with a right of way

over the burdened land; she must also prove the exact nature and ambit of her use

of the claimed way.49 The use of rights of way is by definition intermittent and

therefore actual use does not have to be continuous, but there must be such a

degree of uniformity and regularity in the use of the road as to indicate to the owner

of the servient tenement that adverse rights are being exercised against him.50 In

addition to the nature of the claimed servitude, the circumstances under which the

right has been exercised also play a role in determining whether the use of the

relevant entitlements was sufficient to satisfy the exercise requirement for acquisition

of a servitude and to determine the nature, scope and conditions of exercise of the

right that is acquired.51 Moreover, the prescription requirements are applied with an

eye on broader social and public interests. In Cillie v Geldenhuys52 the Supreme

Court of Appeal pointed out that the owner’s defence of lack of knowledge of the

claimant’s possession was misplaced because the doctrine of knowledge finds no

application in the context of acquisitive prescription, which is justified at least in part

on the basis of the publicity principle and for the sake of legal certainty, both of which

49

The courts require that proof of the right that was exercised must be clear, unambiguous and objectively determinable. Merely indicating the route of a claimed right of way roughly on a map, without proper and objectively ascertainable data such as coordinates, distances and the width of the road on a surveyor’s map, is insufficient: Grobbelaar v Freund 1993 (4) SA 124 (O) 131A.

50 Head v Du Toit 1932 CPD 287; Mocke v Beaufort West Municipality 1939 CPD 135; Welgemoed v

Coetzer 1946 TPD 701 723; Briers v Wilson 1952 (3) SA 423 (C).

51 South African National Parks v Weyer-Henderson 2007 (3) SA 109 (SE) para 23; Kruger v Joles

2009 (3) SA 5 (SCA) para 14; Cillie v Geldenhuys 2009 (2) SA 325 (SCA) para 15.

52 Cillie v Geldenhuys 2009 (2) SA 325 (SCA) para 13.

15

depend largely on the appearance of actual use. Original acquisition of real rights

through prescription vests the rights in the new owner without registration and

irrespective of whether the previous owner or anybody else had knowledge of the

process or consented to it. Both the courts’ focus on the rights that were actually

exercised and their refusal to consider subjective intention suggest that the courts

follow something like an interest-outcome approach.

Comparative excursus

Acquisitive prescription of servitudes (and in general) does not play a large role in

German law; insofar as it exists it merely serves to rectify formal shortcomings in a title

that has been registered in the Grundbuch: BGB § 900(2).53

Belgian and Scots law also allow prescription in pure formalisation cases where

use of the servitude is based on an incomplete title,54 but like Dutch law they also

recognise prescriptive acquisition of a servitude that is not based on incomplete title. In

Dutch law praedial servitudes can be created by prescription according to the

requirements in BW 3:99, namely uninterrupted possession of the servitude for 10

years (bona fide possessor) or when the owner’s possessory claim extinctively

prescribes after 20 years (mala fide possessor). For uninterrupted possession of a

servitude the acquiror must prove factual circumstances and actions that support the

conclusion that the possessor had the intention to exercise the servitude as the holder

of a right: BW 3:107, 3:108.55 Belgian law recognises prescriptive acquisition of

praedial servitudes that involve visible and continuous use only (a 691 BW, read with a

53

See EJ Marais Acquisitive prescription in view of the property clause (2011) 141-144; F Baur, JF Baur & R Stürner Sachenrecht 18 ed (2009) § 6 RdNr 9; K Vieweg & A Werner Sachenrecht 4 ed (2010) § 6 RdNr 1.

54 Since a 2265 BW explicitly refers to 30 years, there is some controversy in case law and academic

literature about the question whether the shorter prescription periods for good faith acquisition (20 years) or acquisition on the basis of lawful title (10 years) also apply to servitudes. See V Sagaert Goederenrecht (Beginselen van Belgisch privaatrecht vol V) (2014) 475-476. Sec 3(1) of the Prescription and Limitation (Scotland) Act 1973 allows for the acquisition of positive servitudes over land that have been possessed openly, peaceably and without judicial interruption for a continuous period of 20 years and if that possession was founded upon and followed the execution of a deed which is sufficient in respect of its terms (expressly or by implication) to constitute the servitude. See DJ Cusine & RRM Paisley Servitudes and rights of way (1998) 321, 336-339, 344-350.

55 See CC van Dam, FHJ Mijnssen & AA van Velten Mr C Asser’s Handleiding to de beoefening van

het Nederlands burgerlijk recht vol 3.II Goederenrecht: Zakelijke rechten 14 ed (2002) 211-215; WHM Reehuis & AHT Heisterkamp with GE van Maanen & GT de Jong Pitlo Het Nederlands burgerlijk recht part 3 Goederenrecht 13 ed (2012) 465-467.

16

684(2) BW). The possession that is required for acquisitive prescription is physical

control with the intention to exercise it on one’s own behalf, which in the case of

servitudes translates into having in fact exercised the entitlements that result from the

servitude over the prescription period of 30 years.56 Section 3(2) of the the Prescription

and Limitation (Scotland) Act 1973 allows for the acquisition of a positive servitude

over land that has been possessed openly, peaceably and without judicial interruption

for a continuous period of 20 years. The possession that is required is civil possession,

which means that it must have been exercised ‘as of right’.57

Easements and profits à prendre can be acquired by prescription in English law.

The requirement is generally not just long user, but continuous user as of right in which

the servient owner has acquiesced.58

It would be ambitious to formulate expansive conclusions on such a brief and

general comparative overview, but there seems to be scope in comparative law for

56

Art 2265 BW. For the long prescription period of 30 years good faith is not required. See V Sagaert Goederenrecht (Beginselen van Belgisch privaatrecht vol V) (2014) 632-635, 638 on the possession requirement.

57 See DJ Cusine & RRM Paisley Servitudes and rights of way (1998) 321, 336-339, 344-350. Since

the reforms introduced by the Title Conditions (Scotland) Act 2003, Scots law distinguishes between servitudes, which are restricted to classic Roman use rights that allow the dominant owner some limited use of the property, and land burdens, which do not involve use entitlements and can be either positive (placing an obligation on the servient owner to do something) or negative (placing an obligation on the servient owner not to do something). See K Reid ‘Modernising land burdens: The new law in Scotland’ in S van Erp & B Akkermans (eds) Towards a unified system of land burdens? (2006) 63-79 70-72; WM Gordon & MJ de Waal ‘Servitudes and real burdens’ in R Zimmermann, D Visser & E Reid (eds) Mixed legal systems in comparative perspective: Property and obligations in Scotland and South Africa (2004) 735-757; JA Lovett ‘Creating and controlling private land use restrictions in Scotland and Louisiana: A comparative mixed jurisdiction analysis’ (2008) 19 Stell LR 231-257. Sec 79 of the Title Conditions (Scotland) Act 2003 prohibits the creation of further negative servitudes, and s 80 provides for the conversion of negative servitudes into real burdens.

58 K Gray & SF Gray Elements of land law 5 ed (2009) 665 para 5.2.55, 667 para 5.2.58; C Harpum,

S Bridge & M Dixon Megarry & Wade The law of real property 7 ed (2008) 1258 para 27-032, 1261 para 27-035. The Pye case, which was decided under the Limitation Act 1980, read with the Land Registration Act 1925, involved extinction of a landowner’s title in a situation where someone else has been in adverse possession of that land for an uninterrupted period of 12 years. See JA Pye (Oxford) Ltd v Graham [2000] Ch 676 (adverse possession proved); JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 (reversed, insufficient proof of possession); JA Pye (Oxford) Ltd v United Kingdom (2006) 43 EHRR 3 (IV) (adverse possession proved, but the common law on this point results in an uncompensated expropriation contrary to the second rule upsets the ‘fair balance’ required by Art 1 of Protocol No 1 of the European Convention 1950 and is thus conflict with Art 1); JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 (GC) (adverse possession amounts to a constitutionally valid regulation of property rights in terms of the third rule in Art 1 and not expropriation). This area of English law was amended by the Land Registration Act 2002, which now makes it more difficult to acquire land through adverse possession. See AJ van der Walt & EJ Marais ‘The Constitutionality of Adverse Possession under the European Convention 1950: JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 (GC)’ (2013) 76 HRHR 261-269.

17

something like an interest-outcome approach to prescriptive acquisition of servitudes

to the extent that the actual use that is made of someone else’s property is taken as

an important indicator to determine both whether a servitude was acquired and what

its nature and content are. The fact that prescription periods in the civil-law systems

are longer when the possessor (user) was in bad faith might also be seen as an

indication of an interest-outcome approach; to the extent that modern South African

law lost this feature of Roman law it could be said to have moved closer to a title-

dominated, exclusionary approach.

Servitudes usually involve some sharing of property, since the use of a

praedial servitude is generally not exclusive.59 It is therefore to be expected that

prescriptive acquisition of a servitude would seem to display more elements of

sharing than prescriptive acquisition generally, which tends to result in a zero-sum

game where one party acquires or retains ‘fully bundled title’ and the other ends up

with nothing. The South African courts’ approach to the requirements for prescriptive

acquisition of a servitude and the contextual manner in which they assess the proof

of prescription suggest that their methodology includes elements of an interest-

outcome approach and is not based purely on title and exclusion. The clearest sign

of that approach in the South African case law on acquisition of servitudes by

prescription is the fact that the courts grant, shape and restrict servitudes that are

acquired by prescription with direct reference to the actual use of the servient land

that the acquiror had enjoyed over the prescription period, thus echoing Dyal-

59

Johl v Nobre [2012] ZAWCHC 20 (20 March 2012) paras 18-19: a servitude of right of way gives the right of reasonable use of the road but does not permit denying the servient owners access to the public road via the servitude road. In the absence of a clear grant to the contrary, both the dominant and servient owners are entitled to use the road since the servient owner retains all the rights flowing from ownership of the servient property, provided that the exercise of those rights does not interfere with the rights of the servitude holder. See further Roeloffze NO v Bothma NO 2007 (2) SA 257 266H-267D.

18

Chand’s argument that sharing remedies require judicial focus on interests in the

property as reflected by actual use. This focus on actual use would affect the nature

of the servitude that is acquired (e g a right of way); the kind of road that is available

and its location; the width of the road; the kind of traffic allowed on it; and the

intensity and regularity of its use. In the case of a grazing servitude, it would affect

the nature and extent of the grazing right60 and also the kind and the number of

cattle included in the grazing right. At the same time, the judicial focus on actual use

implies that the use interests of other parties, such as the servient owner, would also

have to be considered and reflected in the nature, scope and restrictions of the right

that is awarded. If the servient owner or third parties also used the same road during

the prescription period the acquiror cannot expect to acquire an exclusive right of

way. Interestingly, the prescriptive acquisition of a servitude such as a right of way

does not result in the acquiror getting an exclusive right to use a road – the right

would mostly be shared with other users such as the landowner. This creates the

impression that sharing outcomes feature more prominently in the context of

servitudes than in other adverse possession cases. However, we should not read too

much into this admittedly interesting impression.

Despite the indications of a greater focus on use-interests and on sharing

outcomes, acquisitive prescription cases in servitude law do not reflect the breadth of

remedial options that one might expect in view of Dyal-Chand’s analysis. The fact

that the courts establish the nature and scope of the acquired servitude upon the

evidence of actual use can partly be ascribed to the nature of servitudes, which

60

In South African National Parks v Weyer-Henderson 2007 (3) SA 109 (SE) para 23 the court confirmed prescriptive acquisition of a grazing right despite the fact that the fluctuating water level of the adjacent dam covered the grazing from time to time. Significantly, this suggests that in a case like the English Pye saga (see fn 57 above) a South African court might have awarded the Grahams a grazing servitude (in this case the right to crop for grazing), if it granted them anything at all, but certainly not ownership of the land.

19

involve a sharing of land by definition. To conclude that a servitude was acquired by

actual use the courts necessarily have to focus on the actual use of the property,

without them necessarily subscribing to a strong version of the interest-outcome

approach. Significantly, the South African legislation that partly regulates acquisitive

prescription does not allow for longer and shorter prescription periods, depending on

the status of the possessor; the very long prescription period that is laid down in the

legislation must be seen as a nod towards the traditional, title-oriented exclusionary

approach. More sophisticated sharing remedies such as an award of a servitude that

is restricted in time, or that grants the servient owner compensation, are currently not

available in South African law or, as far as I could establish, in other civilian or mixed

jurisdictions. There is no sign that courts are able or might be willing to consider a

compensation award in favour of the affected landowner as part of the court order

that recognises the acquisition of a servitude by prescription. Effectively, South

African courts decide acquisitive prescription claims on the basis of an on/off

switch,61 with the dominant owner winning outright and the servient owner losing

outright, even though the contextual factors considered by the courts shape the

content of the remedy on the basis of actual use (as an indicator of interests) and the

desired outcome (publicity and legal certainty) and even though the parties might in

fact subsequently have to share their use of the land. Apart from what one would

61

I use the notion of an on/off-switch approach more or less like John Lovett explains it, in contrast with the notion of a more flexible glider-switch approach. An on/off-switch approach allows only the binary option between two opposite outcomes, whereas a glider-switch approach allows for a range of options in between the two extremes. See JA Lovett ‘A bend in the road: easement relocation and pliability in the new Restatement (Third) of Property: Servitudes’ (2005) 38 Connecticut LR 1-77 5. R Dyal-Chand ‘Sharing the cathedral’ (2013) 46 Connecticut LR 647-723 664-665 also uses the switch terminology, citing A Bell & G Parchomovsky ‘Pliability rules’ (2002) 101 Michigan LR 1-79 38-39. When I argue that South African courts decide acquisitive prescription cases on the basis of an on/off switch, I do not deny that the granting of a servitude on the basis of acquisitive prescription involves elements of sharing property; I focus on the fact that the courts either grant or deny the servitude outright, with no room for ‘glider’ options in between the two extremes, such as a compensation award or subjecting the servitude to a time limit.

20

expect in servitude law in any event, this example does not seem to indicate a

particularly strong judicial impulse towards what one might describe as innovative,

interest-outcome-oriented sharing remedies.

2.3 Acquisition of a servitude on the basis of necessity

A second servitude that is acquired by operation of law and that could be indicative

of a tendency to favour interest-outcome, sharing solutions is the right of way of

necessity, which is granted to the owner of land that is cut off from the public

transport network. In South African law the acquisition of a right of way of necessity

is regulated by Roman-Dutch law as it was developed in case law.62 The servitude is

acquired originally, without the cooperation of the servient landowner, for what is

described as the socially beneficial purpose of enabling the dominant landowner to

make effective use of otherwise inaccessible land. Significantly, the non-consensual

right of way of necessity proper is distinguished from a right of way that is created on

the basis of implied consent in subdivision cases, the most obvious difference being

that the latter can in principle not be established over land that was not involved in

the subdivision.63 For purposes of this Article I therefore do not consider the

62

The case law distinguishes between a permanent right, which can only be acquired against compensation, and a temporary right, for which compensation is not required. The temporary right affords fewer use entitlements and can only be used in emergency situations. See CG van der Merwe Sakereg 2 ed (1989) 484-485; CG van der Merwe & GF Lubbe ‘Noodweg’ (1977) 40 Journal for Contemporary Roman-Dutch Law (THRHR) 113-125 114-115; PJ Badenhorst, JM Pienaar & H Mostert Silberberg and Schoeman’s The law of property 5 ed (2006) 328-329; CG van der Merwe ‘The Louisiana right to forced passage compared with the South African way of necessity’ (1999) 73 Tulane LR 1363-1413 1375-1377. The servient owner does not have a choice whether a right of way of necessity over his land would be temporary or permanent – if the requirements are satisfied she can be forced to accept the establishment of a permanent right: Van Rensburg v Coetzee 1979 (4) SA 655 (A) 672D-E; English v CJM Harmse Investments CC 2007 (3) SA 415 (N) 423G-H, 425A-C.

63 Van Leeuwen Rooms-Hollands regt 2.21.12 indicates that when blokland is created by subdivision

of land, a servitude of right of way cannot be imposed on other, third-party neighbours. It must be assumed in these instances that a servitude of right of way is established by implied consent, in favour of the subdivision that remains without access to the public road, over the subdivision that

21

subdivision-type rights of way that are based on implied consent or a similar doctrinal

construction.

The principal requirement for acquisition of a right of way of necessity is proof

of necessity. Necessity means that the affected land (the prospective dominant land)

is in fact cut off from the public transport network and that the owner needs access

for proper or effective use of the land. A landowner who deliberately caused his own

land to be cut off from the public roads is in principle precluded from demanding a

right of way of necessity to restore access. Although this matter is yet to be decided

unambiguously in the case law, the prospective dominant owner must probably also

prove that she is unable for some legitimate reason to acquire a consensual

servitude for the access that she requires.64 A right of way of necessity will not be

granted merely to shorten the route that the applicant has to travel to gain access,65

but courts have granted a way of necessity when the affected land does have access

via an existing road that is so bad or traverses such difficult terrain that it is

does have access. This rule was followed in early decisions and in Van Rensburg v Coetzee 1979 (4) SA 655 (A) 675C, 673D-674B the court decided that, despite reservations about its general applicability, the Van Leeuwen rule continues to apply to create a right of way based on implied consent in subdivision cases where implied consent makes sense, notably because the subdividing previous owner still owns a subdivision over which access is possible. In other cases of subdivision, the normal principles of the right of way of necessity apply, based on the principle that the access must go over the servient land that offers the shortest route that imposes the lightest burden.

64 In Wilhelm v Norton 1935 EDL 143 175 the court held that the dominant owner could only claim a

right of way of necessity from the court once he had unsuccesfully attempted to negotiate with the servient owner for a right of way. In Van Rensburg v Coetzee 1979 (4) SA 655 (A) 676H the court stated that the owner who needs a right of way of necessity will have to go to court if its acquisition could not be agreed upon by the landowners involved, which seems to point the same way. It is questionable whether the courts have the authority to impose a servitude by court order in circumstances where it would have been possible to obtain the same servitude by negotiation. TS Raphulu The right of way of necessity: A constitutional analysis (2013) 91-97 proposes a law-and-economics argument, based on the Coase Theorem and on Calabresi and Melamed’s distinction between property rules and liability rules (G Calabresi & AD Melamed ‘Property rules, liability rules, and inalienability: One view of the cathedral’ (1972) 85 Harvard LR 1089-1128), in support of this conclusion. See further AJ van der Walt & TN Raphulu ‘The right of way of way of necessity: A constitutional analysis’ (2014) 77 Journal for Contemporary Roman-Dutch Law (THRHR) 468-484 476-478.

65 English v C J M Harmse Investments 2007 (3) SA 415 (N) 419B; compare Aventura Ltd v Jackson

[2006] ZASCA 103 (15 September 2006) para 8.

22

practically impossible to use or insufficient for proper economic exploitation of the

dominant land.66 Van der Merwe and Lubbe conclude that a right of way of necessity

can be granted where an existing route does not satisfy the economic requirements

of reasonable use of the dominant land, but that the interests of surrounding

properties are taken into account: the negative impact that not granting a more

efficient right of access would have on the dominant owner should be more

compelling than the detrimental effect that granting such a right ex lege would have

on the use of the servient land.67 In Naudé v Ecoman Investments68 the court held

that, since a permanent right of way of necessity is granted against the will of the

servient owner and against compensation, there was no reason in principle why a

reasonable change in the economic use and exploitation of the dominant land would

not justify the granting of a right of way of necessity so as to accommodate the

economic use of the dominant land, provided that the burden would not radically

change or extinguish the use of the servient land. In Sanders NO v Edwards NO69

the court confirmed that it was sufficient if the affected land was constructively cut off

from access to the public road. In English v CJM Harmse Investments CC70 the court

66

Van Schalkwijk v Du Plessis (1900) 17 SC 454; Neilson v Mahoud 1925 EDL 26 33; CG van der Merwe ‘The Louisiana right to forced passage compared with the South African way of necessity’ (1999) 73 Tulane LR 1363-1413 1384-1385; CG van der Merwe & GF Lubbe ‘Noodweg’ (1977) 40 Journal for Contemporary Roman-Dutch Law (THRHR) 113-125 117-118.

67 CG van der Merwe & GF Lubbe ‘Noodweg’ (1977) 40 Journal for Contemporary Roman-Dutch Law

(THRHR) 113-125 118-119.

68 1994 (2) SA 95 (T) 101E-102H, relying on Van Rensburg v Coetzee 1979 (4) SA 655 (A) 675G-H.

69 2003 (5) SA 8 (C) 11E, relying on Van Rensburg v Coetzee 1979 (4) SA 655 (A) 671A. In Sanders

the right of way of necessity became necessary when the owners of the dominant land started to economically develop and exploit a previously unused part of their land that was both cut off from the public road and from the rest of their land. It remains unclear whether a right of way of necessity can be acquired over someone else’s land to get access to an inaccessible part of the dominant owner’s own land (as opposed to access to a public road). CG van der Merwe Sakereg 2 ed (1989) 487 cites the conflicting positions adopted in Trautman NO v Poole 1951 (3) SA 200 (C) 208; Natal Parks Game and Fish Preservation Board v Maritz 1958 (4) SA 545 (N).

70 2007 (3) SA 415 (N) 421I-J. See further CG van der Merwe & J Pienaar ‘Law of property (including

mortgage and pledge)’ 2007 Annual Survey of SA Law 961-1038 1028-1029; J Scott ‘The difficult

23

held that the granting of a right of way of necessity depends on the economic viability

of the proposed use of the dominant land and on striking an appropriate balance of

convenience between the interests of the servient and the dominant owners. The

courts are careful not to interfere unnecessarily with the interests of the servient

owner, particularly in view of the constitutional right not to be deprived of one’s

property arbitrarily,71 and therefore insist that such an interference must be justified

by the dictates of reasonableness and fairness (or proportionality).72 Consequently,

granting a permanent right of way of necessity does not depend entirely on the

reasonableness of the beneficiary’s reasons for requiring the right but also on the

effect that the grant would have on the servient owner.73

The right of way must follow the route that causes the least damage to and

that allows the shortest exit over the servient land.74 This means firstly that the right

process of applying easy principles: Three recent judgments on via ex necessitate’ (2008) 41 De Jure 164-174 165-168.

71 Sec 25(1) of the Constitution of the Republic of South Africa, 1996. For European Convention

purposes the corresponding constitutional constraint would derive from the so-called ‘third rule’ in Art 1 of the First Protocol, which confirms (but also limits) the authority of a member state to ‘enforce such laws as it deems necessary to control the use of property in accordance with the general interest’. In its case law the European Court of Human Rights has established that regulatory laws must establish a fair balance or ‘relationship of proportionality’ between the public interest and the private property interests affected by it, see e g Sporrong & Lönnroth v Sweden [1982] 5 EHRR 35; Lithgow v United Kingdom [1986] 8 EHRR 329; Tre Traktörer AB v Sweden [1989] ECHR Series A vol 159; Pine Valley Developments Ltd v Ireland [1991] 14 EHRR 319; Gasus Dosier- und Fördertechnik GmbH v The Netherlands [1995] ECHR Series A vol 306B.

72 English v CJM Harmse Investments CC 2007 (3) SA 415 (N) 422B-D, referring to s 25(1) of the

Constitution.

73 Given the absence of convincing proof that the servient owner would be unable to conduct viable

farming operations without such a right, while it was clear that granting the right of way would occasion significant prejudice to the servient owner, the court decided that the plaintiff was not entitled to a permanent right of way of necessity: English v CJM Harmse Investments 2007 (3) SA 415 (N) 425A-B; compare further CG van der Merwe & J Pienaar ‘Law of property (including mortgage and pledge)’ 2007 Annual Survey of SA Law 961-1038 1028-1029.

74 The Roman-Dutch expression is ‘ter minste schade ende ter naaste lage’; see CG van der Merwe

Sakereg 2 ed (1989) 488 fn 214 referring to Voet 8.3.4; Van Leeuwen Rooms-Hollands regt 2.21.7-8; Van Leeuwen Censura forensis 1.2.14.34; Van der Keessel Praelectiones ad Gr 2.35.11; Van Rensburg v Coetzee 1979 (4) SA 655 (A) 672F. In Aventura Ltd v Jackson [2006] ZASCA 103 (15 September 2006) para 10 the court merely reiterated the principles that the owner of the servient land should not be disturbed unnecessarily in its use of the land and that the owner of the landlocked

24

of way must be established over the neighbouring property that offers the shortest

viable and usable exit to the public road75 and secondly that the right of way must be

established over that part of the servient land where it will cause the least damage or

discomfort to the servient owner. In practice this means finding an equitable balance

between the interests of the dominant and the servient owner in every case.76 The

content of the right of way of necessity is determined by weighing what is reasonably

necessary for the effective use of the dominant land against what can be reasonably

imposed on the servient land,77 even when reasonable changes in the use of that

land require increasing the burden on the servient land.78

South African law requires payment of just compensation for a permanent –

but not for a temporary or precarious – right of way of necessity.79 The amount of

compensation is determined with reference to the loss of the servient owner and the

benefit of the dominant owner. If the applicant tenders a sum of compensation the

respondent must explain why it is unacceptable; in the absence of consensus the

court will determine an amount of compensation based on all the evidence before it.

property had a right of reasonable access, and left the exact route to be negotiated between the parties.

75 Van Rensburg v Coetzee 1979 (4) SA 655 (A) 675C. See further PJ Badenhorst, JM Pienaar & H

Mostert Silberberg and Schoeman’s The law of property 5 ed (2006) 329. When land lost its access because of subdivision the Van Leeuwen blokland rule applies; see fn 63 above.

76 Van Rensburg v Coetzee 1979 (4) SA 655 (A) 675E-F.

77 The content of a right of way relates to the width of the road; how often it may be used; and what

kinds of traffic are allowed to use it. See CG van der Merwe Sakereg 2 ed (1989) 489; Van Rensburg v Coetzee 1979 (4) SA 655 (A) 675F-H, citing Voet 8.3.3; Van Leeuwen Censura forensis 2.14.35; Van der Keessel Praelectiones ad Gr 2.35.5. See further See CG van der Merwe & GF Lubbe ‘Noodweg’ (1977) 40 Journal for Contemporary Roman-Dutch Law (THRHR) 113-125 124. Compare Aventura Ltd v Jackson [2006] ZASCA 103 (15 September 2006) para 10.

78 In Naudé v Ecoman Investments 1994 (2) SA 95 (T) the dominant owner changed the use of the

dominant land from agricultural to recreational (a public holiday resort); the court granted a right of way that would allow an increase in the traffic that uses the road to accommodate this change in use and amended the compensation accordingly. See English v CJM Harmse Investments CC 2007 (3) SA 415 (N) on maintaining the balance of convenience.

79 The South African position was established in Wilhelm v Norton 1935 EDL 143 176 and confirmed

in Van Rensburg v Coetzee 1979 (4) SA 655 (A) 676A-D.

25

Additional damages for loss suffered by the servient owner can be added to the

compensation.


The notion of an implied easement of necessity in cases where the land is cut off from

the public roads by subdivision is especially clear in English law, where the easement

derives from the principle against derogation from grant (the grantor who subdivides

cannot derogate from his grant and is thus forced to allow the owner of the subdivision

access over the remainder).80 In Scots law the distinction between the implied grant

that results from subdivision and a right of way of access in a situation of necessity is

unclear, although there is authority for the existence of a principle of necessity based

upon public policy or natural obligation, distinct from a servitude created on the basis

of implied grant.81 The idea that a landlocked tenement created by subdivision is

primarily entitled to a right of way of necessity over the other part of the subdivided

whole is also known in Dutch (BW 5:57(3)) and Belgian law.82

A right of way of necessity is acknowledged outside of the context of subdivision

in Dutch, Belgian and German law.83 A landowner who caused her land to be cut off

80

See K Gray & SF Gray Elements of land law 5 ed (2009) 649 para 5.2.21; C Harpum, S Bridge & M Dixon Megarry & Wade The law of real property 7 ed (2008) 1244-1246 para 28-009.

81 See DJ Cusine & RRM Paisley Servitudes and rights of way (1998) 363-367. In Bowers v Kennedy

2000 SC 555 para 16 the Inner House of the Court of Session concluded that the access right that allows an owner to enter and leave the land was part of the very essence of ownership of land, but did not commit itself as to whether that right could arise in circumstances other than subdivision. At para 18 the court explained that ‘the authorities do not support the view that the doctrine of implied grant or reservation should be regarded as inconsistent with the institutional writers' doctrine that the right of access is implied in the right of ownership. The fact of the matter is that the doctrine of the implied grant or reservation of servitudes, so far as applied to ways of necessity, is a means - fiction, if you will - by which the law rationalises the operation of the rule that the owner of an enclave has a right to the necessary access for the enjoyment of his property. In other words in such cases "servitudes" of this kind are in substance a manifestation of the right of access which the owner of land must have, if he is to enjoy the possession of his land, and which the law accordingly implies.’ I am indebted to Kenneth Reid for alerting me to this decision.

82 See V Sagaert Goederenrecht (Beginselen van Belgisch privaatrecht vol V) (2014) 501-512.

83 In Dutch law the owner of land that is cut off from access to the public roads and waterways can

request owners of neighbouring properties to identify a way of necessity in favour of her land, against payment or security for compensation for damage that would be caused by the way of necessity: BW 5:57(1). In German law it is possible to acquire a right of way to provide landlocked land with a necessary way out to the public road: BGB §§ 917, 918. In Belgian law the right of way of necessity (‘uitweg’) is a statutory right that protects the public order on the basis of economic necessity: a 682 § 1 BW. See CC van Dam, FHJ Mijnssen & AA van Velten Mr C Asser’s Handleiding to de beoefening van het Nederlands burgerlijk recht vol 3.II Goederenrecht: Zakelijke rechten 14 ed (2002) 175-180; WHM Reehuis & AHT Heisterkamp with GE van Maanen & GT de Jong Pitlo Het Nederlands burgerlijk recht part 3 Goederenrecht 13 ed (2012) 428-430; H Grziwotz, A Keukenschrijver & G Ring (eds) NomosKommentar BGB Sachenrecht vol 3 § 854-1296 3 ed (2013) 476-492; JF Baur & R

26

from the public roads is precluded from claiming a right of way of necessity.84 The

award and the identification of the right of way require establishing a proper balance

between the interests of the owner of the landlocked land and the owner of the

servient land.85 In Dutch law it is said that the former must acquire the shortest and

most efficient access to the public roads or waterways and the latter must be burdened

as little as possible: BW 5:57(3). It is accepted in Dutch and Belgian law that access to

the public roads and waterways serves the efficient use of the landlocked land and that

ensuring such access is not only in the interest of the dominant owner, but also in the

public interest.86 In German law, a right of way of necessity is seen as an exception to

the general principle of exclusivity, and it is not justified by the public interest in the

economic use of land but by the fact that the interest of the landlocked owner in the

efficient use of his land outweights the servient owner’s interest in exclusive use of her

land.87

Compensation is required for a right of way of necessity in Dutch, Belgian and

German law.88 In Dutch law, the compensation is determined primarily with reference

to the loss of value of the servient land resulting from the imposition of the right of

Stürner Baur Sachenrecht 18 ed (2009) 319; V Sagaert Goederenrecht (Beginselen van Belgisch privaatrecht vol V) (2014) 501-512.

84 BGB 918(1); see H Grziwotz, A Keukenschrijver & G Ring (eds) NomosKommentar BGB

Sachenrecht vol 3 § 854-1296 3 ed (2013) 476-492; JF Baur & R Stürner Baur Sachenrecht 18 ed (2009) 319.


het Nederlands burgerlijk recht vol 3.II Goederenrecht: Zakelijke rechten 14 ed (2002) 175-180; WHM Reehuis & AHT Heisterkamp with GE van Maanen & GT de Jong Pitlo Het Nederlands burgerlijk recht part 3 Goederenrecht 13 ed (2012) 428-430; H Grziwotz, A Keukenschrijver & G Ring (eds) NomosKommentar BGB Sachenrecht vol 3 § 854-1296 3 ed (2013) 476-492; JF Baur & R Stürner Baur Sachenrecht 18 ed (2009) 319; V Sagaert Goederenrecht (Beginselen van Belgisch privaatrecht vol V) (2014) 501-512.


het Nederlands burgerlijk recht vol 3.II Goederenrecht: Zakelijke rechten 14 ed (2002) 175-180; WHM Reehuis & AHT Heisterkamp with GE van Maanen & GT de Jong Pitlo Het Nederlands burgerlijk recht part 3 Goederenrecht 13 ed (2012) 428-430; V Sagaert Goederenrecht (Beginselen van Belgisch privaatrecht vol V) (2014) 501-512.

87 See H Grziwotz, A Keukenschrijver & G Ring (eds) NomosKommentar BGB Sachenrecht vol 3 §

854-1296 3 ed (2013) 476-492; JF Baur & R Stürner Baur Sachenrecht 18 ed (2009) 319.


het Nederlands burgerlijk recht vol 3.II Goederenrecht: Zakelijke rechten 14 ed (2002) 175-180; WHM Reehuis & AHT Heisterkamp with GE van Maanen & GT de Jong Pitlo Het Nederlands burgerlijk recht part 3 Goederenrecht 13 ed (2012) 428-430; H Grziwotz, A Keukenschrijver & G Ring (eds) NomosKommentar BGB Sachenrecht vol 3 § 854-1296 3 ed (2013) 476-492; JF Baur & R Stürner Baur Sachenrecht 18 ed (2009) 319; V Sagaert Goederenrecht (Beginselen van Belgisch privaatrecht vol V) (2014) 501-512.

27

way.89 In German law, the servient owner has a right to receive an annual payment of

compensation for the loss of value caused by the right of way, calculated according to

the principles that apply to the payment for encroaching buildings (which resembles a

rent payment): BGB 917(2)(2).90

The notion of a right of way of necessity that is created ex lege so as to provide

landlocked properties with access to the public transport network seems like a good

example of a sharing remedy. This is especially evident when the servitude of

necessity extends beyond the contract-based confines of implied grant in subdivision

cases, in other words where it applies to neighbouring land parcels that were not

created by subdivision. To the extent that the civil-law jurisdictions consider the

granting, location and content of a right of way of necessity contextually, weighing

the interests of both parties against each other and taking into account the effect that

non-use of landlocked would have on both its owner and the community and society

at large, it appears that the granting of this right displays many of the features of

what Dyal-Chand describes as an interest-outcome approach. The focus falls on

actual use of the land and on the interests of all parties in its use, and the aim is to

achieve an outcome that will accommodate conflicting interests other than by

exclusion. South African case law indicates that a right of way of necessity will not be

granted, even when the economic use interest of the dominant landowner has been

established, when the granting of such a road would significantly impair or destroy

the current use of the servient land. The actual use of the land by both parties is

therefore considered. The fact that not only the existence but also the nature and

scope of the non-consensual right of way that is created depends on actual use of

89

See CC van Dam, FHJ Mijnssen & AA van Velten Mr C Asser’s Handleiding to de beoefening van het Nederlands burgerlijk recht vol 3.II Goederenrecht: Zakelijke rechten 14 ed (2002) 175-180; WHM Reehuis & AHT Heisterkamp with GE van Maanen & GT de Jong Pitlo Het Nederlands burgerlijk recht part 3 Goederenrecht 13 ed (2012) 428-430.

90 See H Grziwotz, A Keukenschrijver & G Ring (eds) NomosKommentar BGB Sachenrecht vol 3 §

854-1296 3 ed (2013) 476-492; JF Baur & R Stürner Baur Sachenrecht 18 ed (2009) 319.

28

the land and on the goal of ensuring generally beneficial use of landlocked land

strengthens the impression that this is a sharing remedy based upon an interest-

outcome analysis. The compensation requirement lends further support to this

conclusion, both in South African law and in the other civilian jurisdictions.

However, to the extent that efficiency, in the form of economic viability of the

landlocked owner’s intended use of the dominant land, is emphasized as the main

reason for awarding a right of way of necessity, it is less clear whether current

practice fully reflects an interest-outcome approach of the kind that Dyal-Chand

describes. Although the case law indicates that a right of way of necessity will not be

granted if it will completely undermine or destroy the servient owner’s current use of

her land, it remains unclear whether the economic-use interest of the dominant

owner would be allowed to trump un-economic, whimsical, or highly personal use of

the servient land. Somewhat counterintuitively, if economic efficiency is so important

that it trumps the landowner’s right to exclude, the award of a right of way of

necessity might display the features of a winner-takes-all, exclusionary rather than of

an interest-outcome-oriented, sharing approach. Awarding a right of way of necessity

might in some cases soften the effect of the exclusionary approach by overriding the

landowner’s right to exclude and complementing it with enforced sharing, but in other

cases it might in fact provide the servitude acquiror with an exclusionary right that

simply overrides the landowner’s actual use interests. If the owner elects not to use

the land at all but to let nature go its own course on it, for example to attract wild

birds in a quiet and peaceful setting, should the importance of economically viable

use of the prospective dominant land be sufficient to enforce the establishment (or

even just the more frequent use) of an access road over that land in favour of the

dominant land? Or will the establishment (or frequent use) of such a way of

29

necessity constitute significant or complete denial or change of the use of the

servient land, to the extent that a court would be disinclined to grant the way of

necessity?91

While there is evidence of something like an interest-outcome approach,

based on actual use, in right of way of necessity cases, it remains unclear how far

the courts can or will go to develop creative interest-outcome remedies that enforce

sharing in these cases. The public-interest goal of ensuring economic use of the

prospective dominant land seems to play an important role in these non-consensual

servitudes. It is not clear whether the courts can or will develop creative sharing

remedies when the economic-use interests of the prospective dominant landowner

conflict with inefficient, highly personal use interests of the servient owner, especially

in situations where compensation cannot fully balance out the conflict.

2.4 Acquisition of a servitude as a result of encroachment

The South African decision in Roseveare v Katmer, Katmer v Roseveare92 suggests

that a non-consensual servitude can be created by judicial order in encroachment

disputes. At least as far as South African law is concerned, this was a one-off

91

L Katz ‘Exclusion and exclusivity in property law’ (2008) 58 University of Toronto LJ 275-315 argues that exclusivity, not exclusion, is the core of ownership and that the central concern of property law is not the exclusion of all non-owners from the property but rather the preservation of the owner's position as the ‘exclusive agenda setter’ for the property. This would suggest that, since the creation of a servitude of right of way over the land would conflict with the landowner’s agenda (establishing a low-use, bird-friendly nature area on the land), the courts should at least be hesitant to allow the servitude purely on the basis of more economic use. In certain instances, e g where economic exploitation of the land forms part of a larger project that is in the national interest, the owner’s agenda could probably be overridden; consider e g the South African Constitutional Court’s decision in Agri South Africa v Minister for Minerals and Energy 2013 (4) SA 1 (CC) para 66-68 concerning the effect of the Mineral and Petroleum Resources Development Act 28 of 2002 (terminating mineral rights holders’ right to sterilise or not to exploit minerals).

92 [2013] ZAGPJHC 18 (28 February 2013) paras 8, 11-12, 17, 21. See ZT Boggenpoel ‘Creating a

servitude to solve an encroachment dispute: a solution or creating another problem?’ (2013) 16 Potchefstroom Electronic LJ 455-486 for a discussion of the decision.

30

decision that cannot be seen as a trend. A ‘kink’ in the boundary wall between two

recently subdivided properties encroached upon the plaintiff’s land so significantly

that some courts might have been inclined simply to order it to be demolished and

rebuilt in the correct place. However, the purpose of the encroaching ‘kink’ in the wall

was to protect a cherry tree growing on the boundary between the properties, which

the respondent was loath to chop down and the plaintiff was willing to leave in place.

The respondent’s proposal was to rebuild the boundary wall so as to remove most of

its encroachment on his land, just leaving the ‘kink’ that accommodates the tree. The

plaintiff seems to have agreed to an interdict that would restrain him from removing

the tree, but the court exercised its discretion to go further and granted an order that

would enable the plaintiff, ‘in order to protect himself in the event that he sells his

property to someone else[, to] … register a servitude to cover the very small

remaining encroachment.’93 This order is interesting: it has long been clear that the

South African courts have a discretion to either order demolition of an encroaching

structure or leave it in place and order compensation, but there is no indication in the

sources that the discretion to order compensation in lieu of demolition includes the

discretion to order transfer of the affected land, or registering a servitude over it, in

favour of the encroacher.

According to South African common law principles, the default remedy is to

have building encroachments demolished.94 Exceptions were always possible in

93

Para 22 (emphasis added).

94 See Rand Waterraad v Bothma 1997 (3) SA 120 (O); CG van der Merwe Sakereg 2 ed (1989) 201-

203. The most complete analyses of the issue are Z Temmers Building encroachments and compulsory transfer of ownership (2010); ZT Boggenpoel ‘Creating a servitude to solve an encroachment dispute: a solution or creating another problem?’ (2013) 16 Potchefstroom Electronic LJ 455-486; AJ van der Walt The law of neighbours (2010) chap 4; AJ van der Walt ‘Replacing property rules with liability rules: Encroachment by building’ (2008) 125 SALJ 592-628; A Pope ‘Encroachment or accession? The importance of the extent of encroachment in light of South African constitutional principles’ (2007) 124 SALJ 537-556.

31

cases where the effects of the encroachment are minimal, but recently the courts

extended this discretion and refused to grant a demolition order, awarding

compensation instead. In the two important decisions that relied on this wider

discretion, Rand Waterraad v Bothma95 and Trustees, Brian Lackey Trust v

Annandale,96 the courts justified the move away from injunctive relief with reference

to the general reasonableness standard of neighbour law, understood as a

guarantee that enforcement of one landowner’s rights should not cause excessive

harm or loss for another neighbour. If enforcement of one owner’s right would cause

great harm or loss for a neighbour, the court held, the loss should be divided equally

between them.97 The court did not consider the fact that the reasonableness

principle progonated in the context-specific nuisance context, where there is a

reciprocal duty on neighbours not to use their land so as to cause a nuisance, nor

did it reflect upon the differences between nuisance and encroachment.

In Rand Waterraad and Trustees, Brian Lackey Trust the courts did not make

any ruling about rights in the affected land and it remained unclear whether the

encroaching builder had acquired and the affected owner had lost any rights in the

encroached-upon land as a result of the order.98 In Trustees, Brian Lackey Trust the

court awarded compensation in lieu of demolition, but it did not rule on the parties’

land rights, despite the fact that the encroachment affected 80% of the affected land.

In neither case was it established (or even considered) whether the encroacher

acquired rights in the land affected by the encroachment, nor was the question 95

1997 (3) SA 120 (O).

96 2004 (3) SA 281 (C).

97 Rand Waterraad v Bothma 1997 (3) SA 120 (O) 136D-E. See ZT Boggenpoel ‘Creating a servitude

to solve an encroachment dispute: a solution or creating another problem?’ (2013) 16 Potchefstroom Electronic LJ 455-486 461.

98 ZT Boggenpoel ‘Creating a servitude to solve an encroachment dispute: a solution or creating

another problem?’ (2013) 16 Potchefstroom Electronic LJ 455-486 456.

32

asked whether the land could or should be transferred to the encroacher by way of a

forced sale. Earlier decisions where the courts did order transfer of the affected

land99 do not establish clear support for the existence of a judicial authority to order

compulsory sale of land, since in those cases the courts did not clearly distinguish

between its discretion to grant compensation instead of demolition and the authority

to order transfer of the land. In some instances, the orders that did involve transfer of

land seem to have been based on agreement between the parties rather than the

exercise of a judicial discretion.

In this perspective, the decision in Roseveare appears novel and creative to

the extent that the court not only exercised its discretion in favour of compensatory

relief rather than the default injuctive relief, which would have resulted in the

encroaching wall being demolished and the tree felled, but went further and ensured

that there would be legal clarity about the legal status of the parties’ rights regarding

the area of land affected by the encroaching section of the wall. The encroaching

party would enjoy a servitude over the area of the neighbour’s land affected by the

encroachment, and would pay compensation to the affected neighbour for his loss of

use of that area. This decision is novel in South African law because there is no

common law authority for a court to order the creation and registration of a servitude

where the parties had clearly not agreed to it.100 Outside of established principles

such as acquisitive prescription or necessity, the courts simply do not have the

99

Such as e g Meyer v Keiser 1980 (3) SA 504 (D) 507.

100 Apart from the fact that there is no clear evidence from the facts that the parties in Roseveare had

reached consensus on the creation of a servitude, such an agreement could not have created a valid consensual servitude in any event because the servitude-creating agreement did not satisfy the requirements of the Alienation of Land Act 68 of 1981 (especially writing) or the requirements of the Deeds Registries Act 47 of 1937 (especially regarding the ways in which a praedial servitude can be created by notarial deed or reservation). See further AJ van der Walt The law of neighbours (2010) 195-202; ZT Boggenpoel ‘Compulsory transfer of encroached-upon land: a constitutional analysis’ (2013) 76 Journal for Contemporary Roman-Dutch Law (THRHR) 313-326.

33

common law authority to order the creation of a non-consensual servitude between

two neighbours. The decisions that are sometimes cited as authority for the

proposition that the courts can order transfer of encroached-upon land101 do not

provide sufficient support for the existence of such a wide discretion.102 Can the

Roseveare decision therefore be seen as an example of a court bravely creating a

sharing remedy, based on an actual-use informed interest-outcome analysis, where

there was none before?


In English law, a permanent building encroachment is treated as a continuing trespass,

for which the common law remedy is damages, although injunctive relief (such as a

demolition order) could be obtained in equity.103 Injunctive relief is seen as a better

remedy than damages for continuing trespass, but section 50 of the Supreme Court

Act 1981 allows the courts to grant compensation in lieu of demolition and this option

became popular in case law.104 In Shelfer v City of London Electric Lighting Co105 the

court established the ‘good working rule’ that courts can deviate from the principle of

injunctive relief if the injury to the affected landowner’s rights is small; if that injury is

capable of being estimated in money and can be adequately compensated by a small

money payment; and if it would be oppressive to grant a demolition order against the

encroaching builder. This decision guided the further development of English law on

encroachment and has also influenced the recent development of South African case

101

Meyer v Keiser 1980 (3) SA 504 (D) 507; see text accompanying fn 99 above. Compare further AJ van der Walt The law of neighbours (2010) 191-194.

102 In Phillips v South African Parks Board [2010] ZAECGHC 27 (22 April 2010) para 21 the court

considered ordering the affected landowner to transfer the encroached-upon land to the encroaching neighbour but decided against it; see ZT Boggenpoel ‘The discretion of courts in encroachment disputes’ (2012) 23 Stellenbosch LR 253-264; ZT Boggenpoel ‘Creating a servitude to solve an encroachment dispute: a solution or creating another problem?’ (2013) 16 Potchefstroom Electronic LJ 455-486 455; AJ van der Walt The law of neighbours (2010) 174-175, 192-193.

103 Jaggard v Sawyer [1995] 1 WLR 269 276; see Z Temmers Building encroachments and

compulsory transfer of ownership (2010) 94.

104 K Gray & SF Gray Elements of land law 5 ed (2009) 1280; Z Temmers Building encroachments

and compulsory transfer of ownership (2010) 96.

105 [1895] 1 Ch 287.

34

law.106 The English doctrine of estates, which allows for horizontal layering of interests

in land, renders it less interesting to consider whether the choice for monetary relief

results in a transfer of rights since the landowner in fee simple and the encroaching

builder can both have different bundles of rights in the same land.107

Modern Dutch law resembles the South African position: a landowner is ordinarily

entitled to have encroaching buildings removed from her land (BW 5.1.1), but an

encroachment should not be demolished when it would be disproportionally more

prejudicial to the encroacher than the disadvantage of the existing situation is for the

affected landowner (BW 5:54). The courts exercise a discretion and weigh the

interests of the parties against each other in making this decision. The exception does

not apply if the encroacher acted in bad faith or was grossly negligent when the

encroachment was built. However, unlike South African law the Dutch civil code

explicitly provides certainty regaring the status of rights in the encroached-upon land: if

the encroachment is kept in place, the encroacher can demand that a servitude be

establish to preserve the situation, in exchange for compensation, but the affected

landowner can offer to transfer ownership of the affected portion of the property to the

encroacher instead.108

In German law, the approach is almost exactly the opposite. If someone builds

across the boundary line, and provided that the encroachment was not intentional or

grossly negligent, the affected landowner must as a rule tolerate the encroachment,

unless she objects immediately: BGB § 912(1).109 Demolition of the encroachment is

the default option only when the encroachment was intentional or grossly negligent or

when the affected neighbour protested immediately and if a court considers demolition

a better option in view of all the facts. German law also provides explicitly for clarity

about rights in the encroached-upon land: if the encroachment is kept in place the

encroaching builder must pay compensation, in annual periodic payments, for as long

as the encroachment exists: BGB § 912(2), § 913. The encroaching builder has the

106

Z Temmers Building encroachments and compulsory transfer of ownership (2010) 96-105 analyses the case law.

107 K Gray & SF Gray Elements of land law 5 ed (2009) 90; Z Temmers Building encroachments and

compulsory transfer of ownership (2010) 109.

108 FHJ Mijnssen, SE Bartels & AA van Velten Mr C Assers Handleiding tot de beoefening van het

Nederlands burgerlijk recht vol 5 Zakenrecht: Eigendom en beperkte rechten 15 ed (2008) 147; Z Temmers Building encroachments and compulsory transfer of ownership (2010) 264-265.

109 F Baur, JF Baur & R Stürner Sachenrecht 18 ed (2009) 317; H Grziwotz, A Keukenschrijver & G

Ring BGB Sachenrecht Vol 3: §854-1296 2 ed (2008) 372-373, 380-381; Z Temmers Building encroachments and compulsory transfer of ownership (2010) 258-260.

35

option to demolish the encroachment rather than pay compensation. The burden

created by the encroachment, combined with the obligation to pay compensation, is

seen as a lease-like right in favour of the encroaching landowner.

The situation is Belgian law is less clear. According to case law, the encroaching

portion of a building structure becomes part of the land upon which it encroaches by

way of accession. However, although there is no authority for such a development in

the Belgian civil code, it has been suggested in the academic literature that the notion

of horizontal accession might apply in these situations, so that the encroaching part of

the building accedes horizontally to the rest of the building (especially if it forms part of

a single home) rather than vertically to the land upon which it encroaches. The

provision for compensation in articles 554-555 BW does not apply to these situations

where the encroaching part of a single home does not establish an independent

construction, and therefore the affected owner can either demand demolition (insofar

as she is not precluded by the principle of abuse of right) or, if demolition is not

possible, she is restricted to compensation for the added value brought about by

necessary improvements to her land.110

Scots law will not enforce demolition of slight encroachments that cause no injury,

especially if the affected person had not objected to the encroachment immediately. If

an encroachment is not removed the courts will in some instances award damages.

Cusine and Paisley argue that the only construction that could sensibly explain the

right to keep an encroachment in place rather than demolish it, for whatever reason, is

a servitude because of the absence of elements of any other construction (lease,

contract).111

Overall, it seems as if the creation of a non-consensual servitude (or servitude-like

use right) in encroachment cases offers a rich seam of examples that illustrate

something like Dyal-Chand’s interest-outcome approach, based on all interests in the

land as they are reflected by actual use of the land and aimed at creating a wide

range of sharing-type remedial outcomes that can accommodate issues of fairness

and equity. Interestingly, insofar as the encroaching builder’s use right in the

110

V Sagaert Goederenrecht (Beginselen van Belgisch privaatrecht vol V) (2014) 758-759.

111 See DJ Cusine & RRM Paisley Servitudes and rights of way (1998) 168-169.

36

encroached-upon land is construed as a servitude (Dutch law), it constitutes an

exclusive-use servitude that necessarily excludes the dominant owner from any

further use of the land. The German solution of creating a lease-like use right seems

to fit better, since leases are normally exclusive-use rights. Nevertheless, both the

servitude- and the –lease-type solution establish sharing solutions to the extent that

the landowner and the encroacher-acquiror share the use of the land, the difference

being that their use rights also include sharing of the shared servitude-right in one

case but not in the other.

However, two problematic issues emerge from the case law and sources. In

the first place, there is an authority issue in at least South African (and possibly

Belgian) law to the extent that the courts do not obviously have a general discretion

to award monetary compensation in lieu of demolition of an encroachment. In South

African law, it is clear that the courts do have a discretion not to grant a demolition

order – and in some instances to award compensation – in cases where the

encroachment is insignificant or small, but it is not clear that the courts can also

exercise that discretion – and balance it out with a compensation order – in

instances where the encroachment has a significant impact on the affected owner’s

use of her land. In addition to this controversy, it is not at all clear that South African

courts have the authority to order the creation of a non-consensual servitude in

encroachment cases. In Belgian law there is no explicit authority (outside of doctrine)

for the status of rights in the encroached-upon land should the encroachment be left

intact.

Secondly, disregarding the authority issues for the moment, the case law from

various jurisdictions indicates that there is a need to clarify the result of not allowing

37

injunctive relief on the status of rights in the encroached-upon portion of land. In

Dutch and German law, a clear doctrinal solution (either a servitude or a kind of rent)

is provided in the civil code; Belgian law does not provide such a clear solution in the

code but doctrine can apparently accommodate a satisfactory solution. All of these

solutions result in what can be described as creative sharing remedies, especially

insofar as the decision not to order demolition is informed by the interests of both

parties (based on actual use of the land) and compensation is required. In English

law there is no serious doctrinal problem because of the doctrine of estates. South

African law seems to prefer a solution based on the ex lege creation of a servitude,

but (as was pointed out earlier) in South African law the doctrinal authority for that

solution remains unclear. Academic authors have suggested that Scots law prefers

the same solution, but the law on this point remains unclear.

Despite these doctrinal difficulties the creation of a servitude (or another use

right) as an alternative to demolish a building encroachment seems to offer a good

example of a use-oriented, interest-outcome, sharing approach to the adjudication of

encroachment disputes where the default remedy of demolition is excessively unfair.

Allowing the affected landowner to insist on demolition, which is the default remedy

in South African law and in some other jurisdictions, is clearly informed by the

traditional ownership-oriented, exclusionary approach. To that extent, any move

away from the default remedy at least indicates a possible shift towards interest-

outcome, sharing remedies. In German law, where compensation is the default

provided for in the civil code and the courts do not exercise a discretion in creating a

use right in favour of the encroaching builder, the shift to an interest-outcome

approach is incorporated into the civil code and not left to the courts. In cases where

the courts do exercise a discretion in not ordering demolition of the encroaching

38

building and creating a compensable use right to accommodate it (Dutch, Belgian,

Scots and South African law), they focus on the actual use that both parties make of

the land, the effect that demolition might have on such use and the extent to which

compensation can provide an adequately balanced remedy. The emphasis is on the

conflicting interests in the actual use of the land and the possibility of an outcome

that is fair to both parties, judged within the broader social and physical context (as

appears from the fact that demolition of specifically residential property is frowned

upon). This impression is strengthened by the fact that bad faith on the side of the

encroaching builder, and immediate objection to the encroachment by the affected

neighbour, preclude the implementation of the sharing outcome. To that extent, the

encroachment examples seem to illustrate something similar to Dyal-Chand’s

analysis of sharing remedies.

2.5 Conclusions on enforced sharing in servitude law

The three examples of acquisition of a non-consensual servitude by operation of law

show, in different ways, how both established principles and judicial developments of

the common law of servitudes can be explained in terms of Dyal-Chand’s interest-

outcomes approach as examples of sharing remedies. The servitudes examples are

easy to explain in non-exclusionary, sharing terms, seeing that servitudes usually

involve sharing of property in some form and therefore the sharing aspect of these

examples should not be overestimated. However, the analysis nevertheless

illuminates a number of useful conclusions.

Two examples (the right of way of necessity and the servitude established in

lieu of demolishing a building encroachment) are easier to explain in interest-

39

outcome terms because they rely more clearly on the interests of the parties

(ascertained on the basis of actual use) and promote a more or less clear interest-

balancing purpose. The fact that the nature, scope and perhaps even duration of the

non-consensual servitude that is created depends on the parties’ actual use of the

land, combined with the provision for compensation, indicates that the non-

consensual, ex lege creation of these servitudes brings about a flexible remedy that

at least resembles Dyal-Chand’s notion of a sharing remedy. The fact that the ex

lege creation of these remedies in every case serves as an alternative for an

ownership-oriented, exclusionary remedy (refusal of access; demolition of the

encroachment) underlines that conclusion.

However, the third example (acquisition of a servitude by prescription) is less

amenable to such an explanation because of (at least in South African law) the long

and inflexible prescription period and the absence of compensation. Despite the

indications that the nature and scope of the acquired servitude are determined on

the basis of proof of actual use, there is little flexibility in the outcomes that the courts

can devise and the effect is a zero-sum game. What evidence there is of sharing the

use of the property (exercising a servitude over someone else’s land, possibly even

sharing that servitude with the owner) is a result of the servitude context and not of

the doctrine or practice of acquisitive prescription.

The extent to which these three examples could be said to exemplify the

development of interest-outcome-based sharing remedies seems to pivot on the

question, firstly, whether the servitude is established by a court exercising a

discretion upon consideration of the actual use interests of all parties against the

backdrop of a range of contextual factors; secondly, whether there is any flexibility in

40

creating an outcome that allows the parties to share the use of the property; and

thirdly, whether compensation is available to equalize whatever burden is imposed

on the party that makes an unusual sacrifice. Only the right of way of necessity and

encroachment examples provide material for an interest-outcome, sharing-oriented

analysis in Dyal-Chand’s terms to the extent that, in those two instances, the ex lege

(judicial) creation of non-consensual servitudes significantly avoids or moves away

from a winner-takes-all, zero-sum-game choice between the interests of the

competing parties on the basis of an inflexible, binary on/off switch. To the extent

that the acquisitive prescription example does not display these features, it remains

locked inside the exclusionary approach dominated by ownership.

2.6 Constitutional implications of enforced sharing in servitude law

From a constitutional property perspective, all three examples involve the creation of

a non-consensual servitude by operation of law on the basis of codified or well-

established common law principles. In other words, each of these examples brings

about the involuntary, forced transfer of rights from one private party to another. It

has been said that common-law inspired forced transfers of this nature are – or are

akin to – expropriation, especially in cases (such as the right of way of necessity)

where compensation is payable.112 However, to compare the compensation that is

paid for a permanent right of way of necessity (or for any similar, common-law forced

112

Van Rensburg v Coetzee 1979 (4) SA 655 (A) 676C-D, compare further English v CJM Harmse Investments CC 2007 (3) SA 415 (N) 422B-D; Sandton Town Council v Erf 89 Sandown Extension 2 (Pty) Ltd 1988 (3) SA 122 (A). A Gildenhuys Onteieningsreg 2 ed (2001) 56-57, 93 forwarded a similar claim, prior to the Constitutional Court decision in First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC), with regard to the judicial award of a right of way of necessity (citing Van Rensburg v Coetzee 1979 (4) SA 653 (A) 676C).

41

transfer of rights) to compensation for expropriation is questionable for several

reasons. At least in South African law, the creation of a servitude by operation of law,

on the basis of common law principles, cannot be expropriatory in nature since there

is no common law authority for expropriation in South African law.113 The same is

probably true for at least some forced transfers authorised by the continental civil

codes.114 Moreover, it is difficult to construe these forced transfers of property as

expropriations because they do not satisfy two standard requirements for

expropriation: they are not necessarily for a public purpose (at least in the sense that

this requirement is usually understood in expropriation law) and the compensation

that may be involved is paid by the other private party and not by the state. The

better view is probably that a forced transfer of rights in the form of a non-consensual

servitude created by operation of law is not an expropriation; functionally, it looks

much more like a state-enforced transfer aimed at settling a private property dispute.

Settling private disputes is of course one of the state’s typically regulatory functions,

113

There is no common law authority for expropriation in South African law and expropriation always requires statutory authority: A Gildenhuys Onteieningsreg 2 ed (2001) 9-10, 49, 93; AJ van der Walt Constitutional property law 3 ed (2011) 344, 452-456 and authorities cited there, especially Pretoria City Council v Modimola 1966 (3) SA 250 (A) 258; Harvey v Umhlatuze Municipality 2011 (1) SA 601 (KZP) para 81. This impression is reinforced by the fact that in instances where property is transferred ex lege on the authority of a common law principle, the property is not acquired by the state but by another private person who has an interest in it, whereas it now seems clear that state acquisition in some form is a core feature of expropriation in South African law: Agri South Africa v Minister for Minerals and Energy 2013 (4) SA 1 (CC) para 58. Furthermore, when the common law requires compensation for a forced transfer of entitlements, the compensation is paid by the beneficiary and not by the state. Finally, it would be difficult in any of the common law cases to argue that the involuntary transfer could satisfy the public purpose or public interest requirement that applies to expropriations (s 25(2) of the Constitution), since the purpose of the transfer is to settle private disputes and not to serve the kind of public purpose or public interest that is usually associated with expropriation.

114 It is certainly true for German law, where the Federal Constitutional Court has indicated that

explicit statutory authority and intent are required for any transfer of rights to qualify as expropriation and that a regulatory transfer of rights cannot be transformed into expropriation that requires compensation: BVerfGE 58, 300 (1981) 309 (Naßauskiesung); see AJ van der Walt Constitutional property law 3 ed (2011) 203. The Belgian Constitutional Court, following the European Court on Human Rights, tends to treat some regulatory interferences with property as expropriation that require compensation, but the Court of Appeals only recognizes formal expropriations as such: V Sagaert & W Verrijdt (eds) Eigendomsbeperkingen: de erfdienstbaarheid van openbaar nut (2012) 195-251 228. See in this regard in more detail K Bezuidenhout Compensation for excessive but otherwise lawful regulatory state action (2014) 193-197.

42

and in that perspective the compensation that has to be paid (by the beneficiary, not

the state) for the acquisition of these servitudes should rather be seen as

compensation for the right that was forcibly transferred and acquired. Technically,

the compensation alleviates the burden that is imposed forcibly on the servient

owner by operation of law, which prevents the regulatory limitation of her rights

caused by the ex lege creation of the servitude from being excessive or

disproportionate.115

The better view is therefore that the forcible creation of a servitude by

operation of law constitutes a regulatory limitation (or, in South African constitutional

terminology, deprivation) of property and consequently it is necessary to establish

that the deprivation is not excessive or disproportionate (or, in South African

constitutional terminology, arbitrary).116 This is probably what the court had in mind in

English v CJM Harmse Investments CC:117 the deprivation brought about by the

forced transfer of entitlements from an unwilling servient owner to the successful

acquiror of a non-consensual servitude will be justified, and therefore not arbitrary,

when the award of the servitude is reasonable under the circumstances. The

reasonableness (non-arbitrariness) of the deprivation is established with reference to

115

In English v CJM Harmse Investments CC 2007 (3) SA 415 (N) 421I-J the court described the effect of imposing a permanent right of way of necessity on the servient owner as ‘virtually identical to an expropriation of property’, but then proceeded to analyse the effect of granting a permanent right of way in the context of establishing a balance of convenience between the interests of the servient owner and the right of the dominant owner to have access to the public roads. This analysis corresponds with assessment of a non-arbitrary deprivation of property in terms of s 25(1) rather than an expropriation in terms of s 25(2). From s 25(1) of the Constitution (no one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property), read with s 36(1) (the rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the factors enumerated in s 36(1)), the court inferred that a court will always be careful not to interfere with rights of ownership until dictates of reasonableness and fairness necessitate such interference: 422C-D. This looks like the correct approach.

116 Sec 25(1) of the Constitution: no one may be deprived of property other than in terms of law of

general application and no law may authorise arbitrary deprivation.

117 2007 (3) SA 415 (N) 422A-F.

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the common-law requirements for the right, assessed from the constitutional

perspective that a deprivation of property is substantively arbitrary when there is

insufficient reason for it, considering the complexity of relationships that are

involved.118 Central amongst the relationships that have to be considered for this

purpose are the relationship between the reason for the deprivation and the means

selected to promote that purpose; the reason for the deprivation and the identity of

the affected property owner; and the reason for the deprivation, the nature of the

affected property and the extent of the deprivation.

On this basis it can probably be said that the deprivation that follows from a

court order awarding a non-consensual servitude ex lege will not be arbitrary if it is

justified by a legitimate policy rationale for the creation of such a servitude and if the

principles that regulate the award and establishment of the servitude are fair. South

African courts have not spent much time or energy on the first of these inquiries.

Generally speaking it has always been accepted reasonably easily, without

significant critical questioning or analysis, that the ex lege creation of a servitude is

justified by legal certainty (acquisitive prescription); effective, economic use of land

(right of way of necessity); or the balance of inconvenience (encroachment). To the

extent that these considerations do little more than point vaguely towards economic

expedience and efficiency, the question whether they actually embody a legitimate

ground for the ex lege, compulsory transfer of property rights from one person to

another remains unanswered. However, judging from the case law and literature it

seems highly unlikely that the ex lege creation of any of the servitudes discussed

118

First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC) para 100. The possibility of procedural arbitrariness is ignored for present purposes since the deprivation results from a court order that follows after having considered all the circumstances and having given the affected owner ample opportunity to oppose the order. See AJ van der Walt Constitutional property law 3 ed (2011) 264-270.

44

before would be subjected to a serious constitutional challenge purely on the basis of

the legitimacy of the policy reasons for creating that kind of servitude by operation of

law.

However, in the second part of the justification or non-arbitrariness inquiry the

focus falls directly on the effect that the forced transfer has on both parties; a

perspective that lends itself more obviously to constitutional challenge. This part of

the test usually involves some kind of balancing or proportionality analysis, in which

the question is whether the harm that not awarding the servitude will cause for one

party justifies the harm or loss that awarding it will cause for the other. In this part of

the analysis, it is easier to focus on actual use, use interests and the potential for

sharing. It is reasonably clear that the award of a right of way of necessity and the

resulting forced transfer of rights will generally be justified when the claimant proves

necessity; that the right of way imposes the least possible burden on the servient

land; that it does not erode or destroy the servient owner’s right to use her own land;

and that the acquiror will pay the servient owner just and equitable compensation for

use of the road. In the Roseveare case, proof that the award of a servitude over the

encroached-upon land imposes the smallest possible burden on the servient land;

preserves an interest (the cherry tree) that both parties value; creates certainty about

the legal status of the affected land; and that the beneficiary will pay just and

equitable compensation for the loss of land should have the same effect. To the

extent that these weighing-up tests for the ex lege creation of servitudes already

mirror the proportionality test that is employed for section 25(1) analysis, it seems

likely that in most instances where a non-consensual servitude is created by

operation of law the resulting deprivation of the servient owner’s property will not be

arbitrary.

45

It is not so clear that the acquisition of a servitude by prescription can be

justified quite so easily, especially in the absence of compensation. In South African

law as it stands, there is every indication that the forced transfer of rights brought

about by acquisitive prescription, especially of servitudes, should survive a

constitutional challenge.119 The probability of a successful constitutional challenge,

based on the property clause, against the ex lege creation of these servitudes is low

because the kind of test that would be applied in a constitutional property challenge

is generally already foreshadowed in the fairly shallow, economic policy-oriented

reasonableness test that is applied to decide whether or not to grant the servitude.

However, the interest-outcome, sharing-focused analysis proposed by Dyal-Chand

indicates that this constitutional assessment might be facile and that it perhaps

requires reconsideration in the case of acquisitive prescription. Of the three

examples, acquisitive prescription involves the least evidence of a proportionality

balancing of the conflicting interests of the parties, even though it is based on their

actual use (or non-use) of the land. Acquisitive prescription is also the strongest

example of zero-sum game, winner-takes-all, on/off switch decision making. It

involves actual sharing of the land only to the extent that servitudes always involve

some level of sharing of land use in any event. To the extent that the very long

prescription period and inflexible outcomes allowed for in the legislation favour the

true owner in all cases where the possessor cannot provide overwhelming proof of

adverse user, this example provides the clearest illustration of a traditional,

ownership-focused exclusionary approach to property disputes. From the interest-

outcome perspective, it should therefore in theory be the most difficult example to

justify in a constitutional challenge. Without the possibility of creative, flexible,

119

See EJ Marais Acquisitive prescription in view of the property clause (2011) 312-314.

46

sharing outcomes tempered with compensation awards, this example of ex lege

created non-consensual servitudes should perhaps be subjected to stricter

constitutional scrutiny.

The point is illustrated by the history of the infamous Pye case in English and

in European Convention law. The case, which was decided under the Limitation Act

1980, read with the Land Registration Act 1925, involved extinction of a landowner’s

title in a situation where someone else (in this case a user who initially had

permission to use the land for grazing) has been in adverse possession of that land

for an uninterrupted period of 12 years.120 When the adverse possession case was

heard by the English courts they were clearly uncomfortable with the idea that

someone should acquire ownership of land on the basis of adverse possession, after

the relatively short period of 12 years, in circumstances where the acquiror originally

used the land with permission and against payment and was always only interested

in obtaining a further use right in it.121 Once the adverse possession decision was

confirmed, the European Court of Human Rights first decided that the forced

acquisition amounted to an invalid expropriation without compensation, then

overturned its own decision and held that it was a valid regulation of civil disputes

and not an expropriation.

120

See JA Pye (Oxford) Ltd v Graham [2000] Ch 676 (adverse possession proved); JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 (reversed, insufficient proof of possession); JA Pye (Oxford) Ltd v United Kingdom (2006) 43 EHRR 3 (IV) (adverse possession proved, but the common law on this point results in an uncompensated expropriation contrary to the second rule upsets the ‘fair balance’ required by Art 1 of Protocol No 1 of the European Convention 1950 and is thus conflict with Art 1); JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 (GC) (adverse possession amounts to a constitutionally valid regulation of property rights in terms of the third rule in Art 1 and not expropriation). See fn 58 above.

121 This area of English law was amended by the Land Registration Act 2002, which now makes it

more difficult to acquire land through adverse possession. See AJ van der Walt & EJ Marais ‘The Constitutionality of Adverse Possession under the European Convention 1950: JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 (GC)’ (2013) 76 HRHR 261-269.

47

Dyal-Chand’s interest-outcome, sharing-focused analysis suggests that the

underlying problem that caused all this dissent was readily identifiable: if the courts

had the authority (and the tools) to craft a more balanced, sharing outcome, it would

have been possible to provide a remedy that would avoid the injustice of simply

denying either party’s use interest in the land. One possibility might be to

characterise the forced transfer of rights as an expropriation (or taking) and require

compensation for it, but the problem with that solution is that it seems unjustified for

the state to pay compensation so that a private person can acquire the right that the

common law awards to her. The same solution would also raise issues with the

public-purpose requirement for expropriation, indicating that the expropriation

solution might not be optimal. On the other hand, if the courts had the authority (and

the tools) they could treat the forced transfer of rights that is indicated by adverse

possession law as a regulatory adjustment of civil conflicts about land use. The tools

that would make such an outcome possible might include the authority to order that

the acquiror should pay the true owner compensation. It might also include the

authority to order the parties to share the use of the property, instead of the one

losing and the other gaining ownership. In the Pye case, a fair sharing order would

possibly have given the adverse user (the Grahams) the (possibly time-limited) right

to continue using the land for grazing (against compensation), without Pye losing its

residual ownership of the land. If properly authorised by the applicable law, such an

outcome would (and should) withstand a constitutional challenge much more easily

than the one that eventually emerged in the Pye case and in most other acquisitive

prescription cases.

Dyal-Chand’s sharing approach not only suggests alternative, more suitable

remedies for adverse possession cases but also indicates that the effects of the

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traditional, exclusionary remedies in those cases might be subjected to stricter

constitutional scrutiny, perhaps in an effort to stimulate further statutory or judicial

activity to develop the law in a more easily justifiable direction.

3 Enforced sharing in constitutional law

3.1 Introduction: enforced sharing in constitutional law

The South African Constitution of 1996 requires an entirely new method of balancing

property against other, conflicting or competing, constitutionally protected rights in a

way that might well bring about some form of sharing property. In Port Elizabeth

Municipality v Various Occupiers122 the Constitutional Court explains that ‘the judicial

function in these circumstances is not to establish a hierarchical arrangement

between the different interests involved’ but ‘to balance out and reconcile the

opposed claims in as just a manner as possible.’ The point of departure that explains

this judicial statement is the one that also informs Dyal-Chand’s analysis, namely

rejection of the way in which traditional ownership discourse, dominated by the

vocabulary, rhetoric and logic of exclusion, tends to pre-determine the outcome of

property disputes in a hierarchical manner, so that the outcome of all conflicts in

which one party can claim an exclusionary property interest is predetermined. In the

new South African constitutional order, the Constitutional Court indicates, this can no

longer be the case. Firstly, the Constitution recognizes and protects not only (or even

primarily) property but a range of non-property rights – some of which might have a

bearing on the use of land – and secondly, the courts may not allow property rights

to trump the other, non-property rights (or even interests) in the traditional,

122

2005 (1) SA 217 (CC) para 23.

49

hierarchical manner – they must be balanced out and reconciled as far as possible

so as to ‘respect, protect, promote and fulfil’ the rights in the Bill of Rights and to

realise the democratic values of human dignity, equality and freedom and the

constitutional transformation goals.123

Judging from case law, the nature and extent of protection of a particular

property right in the new constitutional order depend on the historical and social

context and vary according to two considerations, namely how important upholding

the established right is for the individual holder and how important regulating and

limiting that right is in upholding and protecting other, non-property rights. One state

function of this nature that often causes conflicts with property rights is the

prevention of homelessness in terms of sections 10 (human dignity), 25(6)

(improvement of tenure security), 26(1) (access to housing) and 26(3) (prevention of

arbitrary eviction from one’s home) of the Constitution. The decision in Port Elizabeth

Municipality indicates that the section 10 dignity right and section 26(1) access to

housing interest of even unlawful occupiers, who enjoy no property rights in terms of

the common law, is to be weighed up against the section 25 rights of affected

landowners in eviction cases. The weighing up of these conflicting interests in the

constitutional context is new to the extent that it does not take place in the customary

hierarchy of private-law rights, where stronger rights always trump weaker rights and

rights always trump no-rights. Moreover, this weighing up involves both property and

non-property rights and interests and the desired outcome, which can be described

broadly as social and economic transformation, is inspired by constitutional rather

than individual property goals. Instead of the traditional hierarchical process, a

contextual assessment of all competing or conflicting rights and interests is required

123

Secs 7(1)-(2), 39(1)-(2) of the Constitution.

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in view of the contextual and legislative matrix within which rights and obligations are

regulated under the guidance of the Constitution.

In this Part of the Article I consider three examples where constitutional

obligations might require landowners, in different ways, to share their property with

non-owners. Unlike the examples in Part 2, these obligations do not necessarily

translate into the creation of non-consensual servitudes, but the result does involve

some form of enforced sharing of property. For the sake of clarity I distinguish

between examples where the demand to share is directly embodied in

transformation-oriented, constitutionally inspired legislation; directly required by a

non-property right provision in the Constitution; and indirectly required by a set of

constitutional rights and obligations.

3.2 Constitutionally inspired statutory provisions that demand sharing

The first example involves transformation-oriented, constitutionally inspired land

reform legislation that directly embodies a constitutional demand to share property.

In response to the obligation in section 25(6) of the Constitution to improve the

tenure security of lawful non-owner occupiers of land, section 6(2) of the Extension

of Security of Tenure Act 62 of 1997 granted farm labourers a limited right to bury

their family members on the farm where they work and live. In two earlier

decisions124 it was held that the legislature did not intend to grant farm labourers the

right to bury occupiers or their family members on the farm without consent and

against the will of the landowner. The implication was that farm workers did not

124

Serole v Pienaar 2000 (1) SA 328 (LCC); Nkosi v Bührmann 2002 (1) SA 372 (SCA). Compare AJ van der Walt ‘Property rights v religious rights: Bührmann v Nkosi’ (2002) 13 Stellenbosch LR 394-414.

51

acquire the right to establish a grave ex lege; they had to obtain permission from the

farm owner. In response to these decisions the Act was amended and a new section

6(2)(dA) was inserted, which explicitly gives farm labourers the right to bury a

deceased occupier or family member on the farm, without the farm owner’s consent,

provided that the deceased person’s family was residing on the land at the time of

her death; that burial on the farm would be in accordance with the religion or cultural

beliefs of the family or group; and that an established practice to bury farm workers

on that land existed in the past.125 The provision allows for unilateral establishment

of a grave site, but also makes clear that occupiers’ burial right is to be balanced with

the rights of the owner of the land and that it is subject to reasonable conditions

imposed by the owner. In Nhlabathi v Fick126 the landowner argued that section

6(2)(dA) was in conflict with section 25 of the Constitution.

Considering the test for arbitrary deprivation of property developed in the

Constitutional Court’s FNB decision,127 the Land Claims Court first decided that

section 6(2)(dA) does not, by allowing unilateral appropriation of a grave site,

authorise arbitrary deprivation of the farm owner’s property. The court substantiated

this decision with reference to the wording of the provision and the context within

which the right is granted. Firstly, the provision makes it clear that the right to

appropriate a grave in terms of section 6(2)(dA) must be balanced with the right of

the farm owner and in certain circumstances the right of the owner could outweigh

125

The amendment and its history are discussed by the court in Nhlabathi and Others v Fick 2003 (7) BCLR 806 (LCC) paras 16-19.

126 2003 (7) BCLR 806 (LCC).

127 First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First

National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC) para 100: a deprivation of property is substantively arbitrary if there is insufficient reason for it, considering the complexity of relationships between the purpose of the deprivation, the method selected to achieve the purpose, and its effect on the property owner and the property.

52

the right to establish a grave.128 Secondly, an occupier only has the right unilaterally

to establish a grave if there is an established practice of giving permission for similar

burials in the past, which presupposes some kind of pre-existing consensus between

the landowner and the occupiers about burials on the land. Thirdly, given the

context, the establishment of the grave would in most cases constitute a relatively

minor intrusion into the landowner’s property rights. Finally, the right to bury an

occupier or a family member according to section 6(2)(dA) was enacted to fulfil the

state’s constitutional mandate to provide occupiers legally secure tenure.129

Considering the importance of the religious or cultural beliefs of many occupiers

regarding burial of family members close to their residence, depriving the landowner

of some incidents of her right is justified by the constitutional mandate to provide the

occupiers with secure tenure, including a reasonable right to family burials.130 In the

result the court dismissed the section 25(1) challenge against section 6(2)(dA).

The decision means that a regulatory limitation of the exclusivity of

landownership will be constitutionally valid even when it involves a permanent

physical invasion of private land, provided the reform-related constitutional

obligations justify the limitation and as long as the fairness-related non-arbitrariness

requirements are satisfied. The court also noted that, even if the statutory grant of a

right to establish a grave site without the landowner’s consent were to be regarded

as expropriation without compensation, the expropriation would be justified in terms

of section 25(2)-(3).131 This indicates that the permanent-physical-occupation rule of

128

Nhlabathi v Fick 2003 (7) BCLR 806 (LCC) para 31.

129 Sec 25(6) of the Constitution.

130 Nhlabathi v Fick 2003 (7) BCLR 806 (LCC) para 31.

131 Nhlabathi v Fick 2003 (7) BCLR 806 (LCC) para 32. The expropriation issue is a complicated one,

not least because it remains unclear whether expropriation takes place when the grave site is

53

US regulatory takings law (which is an embodiment of the exclusionary approach)132

does not apply in post-apartheid South African law.

However, the court did not clarify the legal nature of the right that farm

workers acquire with regard to a grave that is established in terms of section

6(2)(dA). The Act does not clarify the status of the grave site either. In a decision

decided prior to the amendment of section 6(2) the Land Claims Court argued obiter

that granting a right to appropriate a burial site without the owner’s consent would

amount to the granting of a servitude.133 If the establishment of a grave site in terms

of section 6(2)(dA) involves an ex lege creation of a servitude in favour of the farm

the workers,134 that right resembles a servitude much more closely than any other

land use right. In that sense, even though the Act does not clarify the status of the

burial right, it can perhaps be said that section 6(2)(dA) creates a statutory servitude

or servitude-like use right, in the form of a grave site, as a direct consequence of the

constitutional obligation imposed on the legislature by section 25(6) (enact legislation

established, in other words through private action. It is easier to argue that s 6(2)(dA) effected a deprivation of all farm owners’ rights because it imposes a limitation on their right to exclude, but it seems unlikely that South African courts can or will transform regulatory deprivations of property into expropriation simply because of their burdensome effect. Compare the text accompanying ffn 112-114 above, where it is argued that ex lege transfers of property from one private person to another need not be seen as expropriation but can also (depending on their purpose and function) be treated as regulatory deprivations of property that may or may not be accompanied by non-expropriatory compensation. The constitutional validity (non-arbitrariness) of such a deprivation might depend on the availability of compensation.

132 Established in Loretto v Teleprompter Manhattan CATV Corp 458 US 419 (1982).

133 Serole v Pienaar 2000 (1) SA 328 (LCC) para 16. This decision was referred to in Nhlabathi v Fick

2003 (7) BCLR 806 (LCC) paras 27, 32 without further comment.

134 In the absence of clarity in the Act and without common law authority recognition of such a transfer

of a right in land is not unproblematic. Normally, the Alienation of Land Act 68 of 1981 requires any agreement relating to the transfer of rights in land to be in writing and the Deeds Registries Act 47 of 1937 requires registration of such a right. However, an exception to these requirements is allowed for rights created ex lege in terms of the common law (and thus technically not transferred). This construction is generallyaccepted for non-consensual servitudes such as the right of way of necessity; whether a similar ex legel transfer or creation of rights can be deduced from non-explicit statutory provisions is unclear.

54

to ensure security of tenure) of the Constitution, which is the constitutional

foundation of the Extension of Security of Tenure Act 62 of 1997.

It is clear how the acquisition of this servitude-like right can be seen as a

sharing remedy in Dyal-Chand’s terminology, particularly in view of the interest-

outcome factors that clearly justify and inform its creation: consideration of both the

farm owner’s and the farm labourers’ actual use of the land; the requirement of a

prior agreement or consensus about the burial of family members on the land;

consideration of the effect of either granting or not granting the right to establish a

grave on both parties; and the constitutional obligation to secure a specific outcome

(security of tenure, which includes burial rights in view of other constitutional

obligations). Given the requirements set out in the Nhlabathi decision and the nature

of the judicial inquiry that section 6(2)(dA) requires, the obligation to allow

establishment of a grave site within the section 6(2)(dA) framework is a good

example of compulsory sharing of property in view of a direct statutory obligation that

is informed by important constitutional goals. Interestingly, there is no provision for

compensation in the Act and the Nhlabathi decision provides indirect authority for the

view that the absence of compensation is constitutionally justified in view of all the

circumstances.

The Nhlabathi decision raises (but does not decide) the question whether the

unilateral, non-consensual creation of a gravesite on private land in terms of section

6(2)(dA) brings about an expropriation of land. The decision makes it clear that the

establishment of a gravesite would pass constitutional muster regardless of whether

it is seen as a deprivation of property (section 25(1)) or an expropriation of property

without compensation (section 25(2)). In the former case, the considerations taken

55

into account by the courts would indicate that the deprivation caused by unilateral

establishment of a grave that complies with all the requirements is not arbitrary; in

the latter case they would indicate that the limitation of section 25(2) brought about

by an expropriation without compensation is justifiable.

3.3 Constitutional rights that create or uphold shared property rights

The second example involves an instance where the Constitution imposes a direct

demand to develop a sharing remedy, without the statutory intervention that

characterises the Nhlabathi example, by either creating or upholding competing

property rights. In Kidson v Jimspeed Enterprises CC135 the court had to decide

whether destruction of the relevant building terminates a personal servitude of

habitation.136 The Kidsons sold their farm but reserved a registered lifelong right of

habitation in their favour relating to a house on the farm. When they left the house

temporarily, without abandoning their right of habitation, the landowner demolished

the building and subsequently sold the land. The servitude remained registered

against the title deed. The Kidsons later wanted to return to the house but the current

owner denied any knowledge of the right of habitation and refused them access. The

question in Kidson was whether the servitude of habitation had survived demolition

of the structure and whether it could be enforced against the current landowner. The

135

2009 (5) SA 246 (GNP). See AJ van der Walt ‘Development of the common law of servitude’ (2013) 130 SALJ 721-755 for an extensive analysis of the decision.

136 South African common law recognizes a number of personal servitudes such as usufruct, use and

habitation (there is no numerus clausus). Personal servitudes are created in favour of a specific person, regardless of whether she owns land, over a designated servient property. The servitude of habitation allows the beneficiary to live in a designated structure on the servient land. The distinction was set out in Hotel De Aar v Jonordon Investment (Edms) Bpk 1972 (2) SA 400 (A) 405E-406B, adding that it must be ascertained from the grant of the servitude, judged in the context in which the servitude was created, whether the intention was to establish a praedial or a personal servitude. See further PJ Badenhorst, JM Pienaar & H Mostert Silberberg and Schoeman’s The law of property 5 ed (2006) 338-342.

56

court held that the servitude had not lapsed as a consequence of prescription,137 nor

was it cancelled138 or terminated by non-use.139 The question was therefore a

doctrinal one to be answered with reference to the Roman-Dutch authorities, namely

whether demolition of the relevant structure automatically terminates a servitude of

habitation. As it happens, the Roman-Dutch authorities are ambivalent on this point,

but the court decided, on its interpretation of the authorities, that demolition of the

building does not terminate a servitude of habitation unless rebuilding had become

impossible.140 The beneficiaries cannot force the new landowner to rebuild the

house,141 but if they restore it themselves they can once again occupy it according to

the provisions of the servitude. The court considered this outcome, which it reached

on the basis of interpretation of the common law authorities and without directly

relying on the Constitution, fair and equitable to both parties.

The matter is not regulated by legislation and on the face of it, the issue is

simply how to interpret the common law. Since the common law authorities are

ambivalent, the court seems to have opted for the interpretation that is more in

accordance with justice. This choice is justified on the basis of common-law logic

and fairness. However, in fact the outcome that the court opted for is directly

required by the Constitution. Any reading of the common law in terms of which a

servitude of habitation would be terminated by demolition of the structure would

137

Because the requirements of the Prescription Act 68 of 1969 had not been fulfilled: Kidson v Jimspeed Enterprises CC 2009 (5) SA 246 (GNP) para 5.

138 A servitude must be cancelled by notarial deed: s 68(1)-(2) of the Deeds Registries Act 47 of 1937.

See Kidson v Jimspeed Enterprises CC 2009 (5) SA 246 (GNP) para 5.

139 Para 5, citing Voet 7.8.8: ‘mere non-user of the right of dwelling does not automatically lead to the

disappearance or lapse of the right.’

140 Paras 8, 10, citing Van der Keessel Praelectiones 2.37.5, 2.39.14. The court noted that CG van

der Merwe Sakereg 2 ed (1989) 535 differs on this point.

141 Placing such a burden on the owner of the servient tenement would be in conflict with the passivity

principle, according to which the owner of the servient land cannot be forced to perform any positive act. See CG van der Merwe Sakereg 2 ed (1989) 471.

57

effectively deprive the beneficiaries of their existing access to housing because it

would deprive them of the possibility that they had, in terms of the registered

servitude of habitation, to return to the farm. Consequently, they would be rendered

homeless, which is directly in conflict with the section 26(1) right of access to

housing.142 To the extent that the common-law authorities are ambivalent on this

point, development of the common law must be considered in terms of section 39(2)

to ensure that the common law cannot be interpreted in a way that would cause

homelessness.143 Justifying the court’s decision on the basis of its interpretation of

the authorities, as a technical matter of common-law adjudication, implies that the

opposite reading remains open for another court on another day, which would be

unconstitutional. Consequently, the decision to uphold the servitude of habitation is

not – and cannot be – based on or justified by a technical interpretation of the

common law; it is a compulsory, unavoidable constitutional decision. Moreover, it is a

non-property constitutional decision because the interpretation that the court

eventually opted for is required by section 26, the housing clause of the Constitution,

and not by constitutional property law (section 25). Deciding a case like Kidson

therefore has to start, once it emerges that the common law authorities are

ambivalent, with the access to housing right in section 26 of the Constitution.

142

In Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) para 34 the Constitutional Court confirmed that s 26(1) at the very least places a negative obligation on the state and all other entities and persons to desists from preventing or impairing the right of access to adequate housing.

143 AJ van der Walt ‘Development of the common law of servitude’ (2013) 130 SALJ 721-755. In

Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) para 34 the Constitutional Court confirmed that s 26(1) at the very least places a negative obligation on the state and all other entities and persons to desists from preventing or impairing the right of access to adequate housing. See further AJ van der Walt Property and Constitution (2012) 132-139, arguing that the ‘spirit, purport and objects of the Bill of Rights’ referred to e g in s 39(2) of the Constitution includes an obligation on the legislature and the courts to avoid certain unwanted effects in the property system, such as causing or exacerbating homelessness.

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According to the emerging South African case law and literature, section 26

analysis assumes the form of a weighing up of the access to housing interests of

occupiers against the property rights of landowners.144 The goal is to establish what

the effect on the occupier would be if the occupation is terminated, and what the

effect on the landowner would be if it is not terminated, in both cases taking into

consideration the historical, social and individual context. In the Kidson case,

relevant factors to consider might include the limited lifespan of personal

servitudes;145 the limited effect that a servitude of habitation usually has on the right

of the landowner, given the general principles of servitude;146 the fact that servitudes

of habitation are often reserved upon sale of agricultural land, indicating a strong

family or personal bond between the beneficiaries and the servient land; and the

strong constitutional and social aversion to legal processes that render someone

homeless.147 The beneficiaries’ advanced age and personal circumstances and the

circumstances under which they initially left the farm would favour upholding the

servitude in this case. Furthermore, the courts adopt the view that legal rules that

bring about homelessness inevitably involve the section 10 right to human dignity,

144

See S Liebenberg Socio-economic rights adjudication under a transformative constitution (2010) chap 6; G Muller The impact of section 26 of the Constitution on the eviction of squatters in South African law (2011) 75-93 and sources cited there.

145 Personal servitudes terminate when the beneficiary dies or, in the case of a legal person, after 100

years. See further PJ Badenhorst, JM Pienaar & H Mostert Silberberg and Schoeman’s The law of property 5 ed (2006) 338-342.

146 Principles such as passivity and exercise of the servitude civiliter modo are relevant here since

they protect the interests of the servient landowner; see CG van der Merwe Sakereg 2 ed (1989) 466-467; PJ Badenhorst, JM Pienaar & H Mostert Silberberg and Schoeman’s The law of property 5 ed (2006) 338-342.

147 In this regard it is noteworthy that the rights of the elderly and the negative effect on them of

eviction from their home is taken particularly seriously by the courts when considering the significance of availability of alternative accommodation in view of s 26; see G Muller The impact of section 26 of the Constitution on the eviction of squatters in South African law (2011) 288-291; G Muller ‘On considering alternative accommodation and the rights and needs of vulnerable people’ (2014) SA Journal on Human Rights 41-62 47-50.

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which again strengthens the case for upholding the servitude.148 Against these

considerations would weigh any evidence that the servient landowner might present

regarding the negative effect that upholding the servitude would have on her, for

instance in negatively affecting a business operation on the land, or her own

residential use of the property, or her privacy.

The outcome of a case like Kidson is therefore not a matter of property law

but of broader, non-property constitutional law. Property interests (and section 25)

may well feature in a later stage of the analysis, though: once it is clear that section

26 (supported by section 10) directly obliges the courts to develop the common law

so as to avoid arbitrarily rendering someone homeless, and once it is decided that

the common law must be developed so that a personal servitude of habitation is not

terminated by demolition of the structure, the focus falls on the implications of this

development on the current landowner’s property interests. Developing the common

law under the section 26 obligation and allowing the beneficiaries to rebuild and

return to the house on the farm would no doubt have a negative effect on the

property rights of the current owner of the servient land, which means that the usual

section 25 (non-arbitrariness) analysis is required to determine whether the servient

owner’s property rights have been infringed in an unconstitutional manner. If the

current owner is the same person who participated in the registration of the servitude

and who demolished the structure, it could probably be argued that his interests

require no further section 25 protection against a judicial decision to uphold the

148

See S Liebenberg Socio-economic rights adjudication under a transformative constitution (2010) chap 6; G Muller The impact of section 26 of the Constitution on the eviction of squatters in South African law (2011) 75-93 and sources cited there. See also A Chaskalson ‘Human dignity as a foundational value of our constitutional order’ (2000) 16 SA Journal on Human Rights 193-205; A Sachs ‘The judicial enforcement of socio-economic rights’ (2003) 56 Current Legal Problems 579-601; S Liebenberg ‘The value of human dignity in interpreting socio-economic rights’ (2005) 21 SA Journal on Human Rights 1-31.

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servitude. However, in Kidson the current owner was a subsequent acquiror who

was unaware of the existence of the servitude, the existence and demolition of the

structure and the history of the Kidson’s occupation of it; while this subjective

consideration does not affect the validity of the registered servitude, it might play a

role in assessing the justifiability of the effects of upholding the servitude on the

landowner’s rights. The Kidson decision suggests149 that the deprivation of property

that would result from a development of the common law to uphold a personal

servitude of habitation upon demolition of the structure will not be arbitrary because

the contextual weighing-up of the conflicting interests that the Kidson court

conducted provides adequate justification for the deprivation for purposes of section

25(1).150

The Kidson decision and the development (or at least the interpretation) of the

common law regarding the non-extinction of personal servitudes of habitation that it

established offers a good example of a sharing remedy in Dyal-Chand’s terminology,

especially since the outcome is informed by the conflicting parties’ interests in and

actual use of the property and the constitutional obligation to reach a particular,

socially, politically and morally desirable outcome, namely to prevent any legal

process that will unnecessarily render someone homeless. The outcome in this case,

which is directly required by a non-property provision in the Constitution, involves

actual sharing of property to the extent that the parties’ respective uses of the

property are formalised in rights and described in terms of doctrinal categories

149

Since the court took the view that this outcome was predicated on an interpretation of the Roman-Dutch sources the constitutional issue was never raised. Arguably, if the common law indeed clearly prescribed that a servitude of habitation survives demolition of the relevant structure, application of that principle would not raise the s 25(1) deprivation issue since the limits of the landowner’s rights are then described, rather than changed, by the common law.

150 According to the FNB decision; see First National Bank of SA Ltd t/a Wesbank v Commissioner,

South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC) para 100 and compare fn 116 above.

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(servient owner and holder of a personal servitude of habitation). As it happens, the

occupation right of the beneficiaries in this case actually is a common-law category

of servitude.

3.4 Constitutional rights that require sharing without creating property rights

The third example concerns instances where constitutional obligations demand a

sharing-type remedy without actually creating or upholding property rights on the

non-ownership side of the property-sharing relationship. Unlike Kidson, this example

brings about sharing without involving a conflicting property right. In fact, what makes

this example interesting is that a landowner is required to share the use of her

property with someone who patently does not have any right to use it and who has

been using it unlawfully in the past.

The category of cases that feature in this example plays a large role in post-

1994 South African law because of the country’s history of inequitable land

distribution and land use and the constitutional efforts to remedy that legacy through

land reform. Unlawful occupiers – often referred to as ‘squatters’ in the pre-

constitutional era – obviously do not have any legal right to occupy the land, and

although the post-1994 law goes to great lengths to protect unlawful occupiers from

arbitrary eviction, neither the anti-eviction provision in the Constitution151 nor the

legislation enacted to give effect to it152 grants unlawful occupiers a new right to

151

Sec 26(3) provides that no one may be evicted from their home or have their home demolished without a court order, which is only to be granted after having considered all the relevant circumstances. No law may permit arbitrary evictions.

152 The principal statute that was enacted to give effect to s 26(3) is the Prevention of Illegal Eviction

from and Unlawful Occupation of Land Act 19 of 1998 (PIE), but other land reform laws also include anti-eviction provisions: compare the Extension of Security of Tenure Act 62 of 1997; Interim Protection of Informal Land Rights Act 31 of 1996; Land Reform (Labour Tenants) Act 3 of 1996;

62

occupy the relevant land. Instead, the strategy that is employed to combat arbitrary

evictions that would exacerbate the homelessness problem is to impose some due-

process and some substantive restrictions on the landowner’s right to obtain and

enforce an eviction order. It is in the space created by these restrictions that I find

examples of a sharing remedy.

The relevant case law gives effect to the instruction in Port Elizabeth

Municipality v Various Occupiers153 to ‘balance out and reconcile’ conflicting rights in

the context of eviction of unlawful occupiers. In the spirit of the Constitution and the

Port Elizabeth Municipality interpretation of the obligations it imposes, the courts go

to some lengths in enforcing the anti-eviction measures so as to promote the

constitutional goals. In two decisions, the Supreme Court of Appeal set out what it

regards as the boundary between reasonable and unreasonable restrictions that can

be imposed on landowners in giving effect to anti-eviction measures, particularly

insofar as those measures involve a delay in the execution of an eviction order. In

Modderklip,154 the court awarded constitutional damages to the landowner in lieu of

immediately enforcing and executing the eviction order that he had obtained earlier.

Rental Housing Act 50 of 1999; Restitution of Land Rights Act 22 of 1994. For an overview see AJ van der Walt ‘Exclusivity of ownership, security of tenure, and eviction orders: a model to evaluate South African land-reform legislation’ 2002 TSAR 254-289.

153 2005 (1) SA 217 (CC) para 23. See the discussion in 3.1 above.

154 Modder East Squatters v Modderklip Boerdery (Pty) Ltd; President of the Republic of South Africa

v Modderklip Boerdery (Pty) Ltd 2004 (6) SA 40 (SCA). The crucial passage appears in para 43: ‘Return of the land is not feasible. There is in any event no indication that the land, which was being used for cultivating hay, was otherwise occupied by the lessees or inhabited by anyone else. Ordering the state to pay damages to Modderklip has the advantage that the Gabon occupiers can remain where they are while Modderklip will be recompensed for that which it has lost and the state has gained by not having to provide alternative land. The state may, obviously, expropriate the land in which event Modderklip will no longer suffer any loss and compensation will not be payable (except for the past use of the land). A declaratory order to this effect ought to do justice to the case. Modderklip will not receive more than what it has lost, the state has already received value for what it has to pay and the immediate social problem is solved while the medium and long term problems can be solved as and when the state can afford it.’ The remedy awarded was confirmed by the Constitutional Court in President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 (5) SA 3 (CC) paras 43-50, 65.

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It had become impossible to enforce the eviction order in this particular case

because the state had not complied with its obligation to provide alternative

accommodation for the unlawful occupiers and it was considered both immoral and

impracticable to simply put 40 000 occupiers out on the street. Since the state had a

constitutional obligation both to provide access to housing for the unlawful occupiers

and to protect the landowner’s property, the only ‘effective relief’ that the court could

provide in this case, during the extended time that it would take for the local authority

to provide alternative accommodation for the community, was compensation to

indemnify the landowner for the loss of use of his land during the period that he had

to wait for enforcement of the eviction order. The message in this decision is that it is

unreasonable for the state to stand by and allow a private landowner to bear the

brunt of an impossible situation created by the state’s failure to provide an effective

remedy against unlawful occupation of land on the one hand, and its failure to

provide alternative accommodation for the unlawful occupiers who were to be

evicted on the other.

In Blue Moonlight, the Supreme Court of Appeal considered the limits of the

compensatory remedy it had fashioned in Modderklip. The court made it clear that

the contextual differences between the two cases are crucial: ‘Modderklip …

certainly is not authority for the proposition that constitutional damages is always

available, or ordinarily appropriate, as a remedy whenever a fundamental right has

been breached.’155 The situation in Modderklip was unique because constitutional

155

City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2011 (4) SA 337 (SCA) para 70, referring to the constitutional damages order granted in Blue Moonlight Properties 39 (Pty) Ltd v Occupiers of Saratoga Avenue [2010] ZAGPJHC 3 (4 February 2010) para 171. This decision was confirmed by the Constitutional Court in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2012 (2) SA 104 (CC) para 100, focusing on the other aspects of the decision (especially the order against the City to provide alternative accommodation) that were raised in appeal.

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damages was the only appropriate remedy in the circumstances. Firstly, the

compensation order in Modderklip was made after an eviction order had been

obtained but proved to be practically unenforceable, at least for the foreseeable

future, whereas the landowner in Blue Moonlight had every prospect of successfully

evicting the unlawful occupiers in the short term. Secondly, the compensation order

in Modderklip resulted from the state’s failure to assist the landowner in protecting its

property rights, whereas it was clear that the owner should succeed with eviction in

Blue Moonlight. Thirdly, the large number of unlawful occupiers had rendered

eviction a practical impossibility in Modderklip, whereas the relatively small number

of occupiers in Blue Moonlight could be evicted with reasonable ease. And finally, in

Modderklip the landowner was the innocent victim of a large unlawful land invasion

and he had taken all the necessary steps, in good time, to obtain an eviction,

whereas the owner in Blue Moonlight was aware of the unlawful occupiers when it

acquired the property.

The enforcement of an eviction order must be assessed in its proper historical

context and against the background of the constitutional obligation to balance the

right of access to housing against property rights, taking cognisance of the actual

use of the land by and its importance for both the landowner and the unlawful

occupiers.156 In that regard, the Constitutional Court made a significant observation:

‘Of course a property owner cannot be expected to provide free housing for the

homeless on its property for an indefinite period. But in certain circumstances an

owner may have to be somewhat patient, and accept that the right to occupation may

be temporarily restricted, as Blue Moonlight’s situation in this case has already

156

City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2012 (2) SA 104 (CC) paras 33-41.

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illustrated. An owner’s right to use and enjoy property at common law can be limited in

the process of the justice and equity enquiry mandated by PIE.’157

At the very least, this means that landowners must accept a reasonable delay in

having an eviction order enforced, allowing the responsible authorities time to ensure

that the evictees would not be rendered homeless. A property owner is entitled to an

eviction order against unlawful occupiers, but she must under certain circumstances

be somewhat patient and accept that execution of that order may be temporarily

delayed while alternative accommodation is found for the unlawful occupiers. The

justice of protecting ownership with an eviction order is mitigated by the fairness of

allowing enough time for the evictees to be accommodated elsewhere, in

accordance with their constitutional rights of dignity and access to housing. In the

small intersection where the two goals overlap, the parties are forced to share the

use of the property.

In Blue Moonlight, the landowner admitted that an eviction may be delayed for

equitable grounds but argued that an indefinite delay would amount to an arbitrary

deprivation of property in conflict with section 25(1) of the Constitution.158 This very

argument formed the basis of the compensation award in Modderklip: an indefinite

delay in obtaining an efficient remedy to protect property against unlawful occupation

would constitute an unconstitutional deprivation of property. The question is when a

delay in enforcing an eviction order is reasonable (Blue Moonlight) and when it

becomes unreasonable (Modderklip). Judging from the two decisions, a landowner

who has a reasonable prospect of successfully evicting unlawful occupiers within a

157

City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2012 (2) SA 104 (CC) para 40.

158 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2012 (2)

SA 104 (CC) para 31.

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reasonable time has to exercise a measure of patience until the eviction is possible,

without compensation, whereas an indefinite delay with no real prospect of success

might justify a compensation order to indemnify the landowner for the indefinite loss

of use of her land.

Both the temporary and the indefinite delay in obtaining an eviction can be

seen as examples of enforced sharing of property, as an indirect result of the

constitutional demand to respect and protect section 26(1) (access to housing) and

section 10 (human dignity) rights. This indirect constitutional demand to share the

use of one’s property with unlawful occupiers, without creating competing property

rights for them, is once again not the result of property rules but an indirect effect of

the constitutional protection of non-property rights. Interestingly, compared to the

earlier examples this form of sharing does not involve the creation of a competing

property right, but it does involve actual sharing of the use of property, albeit

temporarily. It is also interesting that the demand to share does not necessarily

involve compensation, although one level of constitutionally required patience,

resulting from an indefinite delay in obtaining an eviction, can render compensation

necessary in certain circumstances.


Because of the more or less unique features of the South African social and

historical context and the constitutionally mandated land reform programme it is

difficult to find examples of constitutionally inspired sharing remedies from case law in

other civilian or mixed jurisdictions that lend themselves to sensible comparative

analysis with the examples discussed in this Part. However, although the context and

the technical detail are very different from the South African cases discussed before, it

is possible to draw some interesting parallels from two recent sets of constitutional

case law on housing. The point of this comparative excursus is to find examples,

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particularly in the housing sphere. where sharing of property was enforced on the

basis of strong constitutional objectives.

The first example comes from German constitutional property law. Since the Basic

Law was adopted in 1950, the German Federal Constitutional Court has confirmed, in

a range of housing-related cases, that the statutory imposition of limitations on

landowners’ property rights is constitutionally legitimate, given that the limitations serve

the important constitutional purpose of protecting the personal and family lives of

tenants and provided that the effect of these limitations on the landowner is not

disproportionate. This broad principle has been confirmed in the landlord-tenant

context with regard to regulatory measures that limit residential landlords’ entitlement

to cancel a lease and to raise the rent,159 and also in the context of the so-called

allotment gardens established during World War II.160 There is no general housing

rights provision in the Basic Law, but the personal and family interests of tenants that

were considered sufficient to justify limiting landowners’ rights were construed on the

basis of human dignity or personal freedom.

The second example comes from decisions in English courts and in the European

Court of Human Rights. The English courts initially resisted the idea that a provision of

the European Charter on Human Rights (which was incorporated into English law by

the Human Rights Act 1998) could have a substantive limiting effect on landlords’ right

to recover residential property by way of cancellation of a lease and eviction of the

tenants.161 However, the European Court of Human Rights made it clear in a series of

decisions that, in view of Article 8 of the Convention, any person who was at risk that

recovery of possession proceedings might interfere with his home should be able to

have the proportionality of the recovery measure assessed by an independent

tribunal.162 Eventually, the English Supreme Court, departing from earlier decisions of

the House of Lords, acknowledged that the Convention right indeed has a substantive

limiting effect on the common law rights of landowners to the extent that, at least where

a local authority is seeking recovery of possession of a person’s home, the court has

159

The most important decisions dealing with cancellation and rent levels are BVerfGE 37, 132; BVerfGE 38, 248; BVerfGE 68, 361; BVerfGE 79, 292; BVerfGE 89, 1; BVerfGE 89, 237. See further AJ van der Walt Constitutional property law (3 ed 2011) 132-135, 309.

160 The most important decisions dealing with allotment gardens are BVerfGE 52, 1; BVerfGE 87, 114.

See further AJ van der Walt Constitutional property law (3 ed 2011) 131-132.

161 See especially Harrow LBC v Qazi [2003] UKHL 43.

162 See especially McCann v United Kingdom (2008) 47 EHRR 40 par 50.

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the power to assess the proportionality of the recovery order.163 It remains unclear

whether this change of direction will eventually prove powerful enough to also affect

recovery cases brought by private landlords, but the latest decisions already show that

private-law rights can be limited by constitutional or constitutionally-inspired regulatory

arrangements that are intended to protect housing rights of non-owners, thereby

effectively enforcing sharing upon residential landlords.

3.5 Conclusions on enforced sharing in constitutional law

The involvement of non-property constitutional rights such as human dignity and

access to housing significantly complicates the examples discussed in this Part.

Whereas the examples in Part 2 involved common law principles that allow for the

creation of servitudes by operation of law, mostly for economic policy considerations

inspired by the notion that property law should encourage and support efficient use

of land, the examples in Part 3 deal with the creation of servitude-like sharing

obligations that arise from non-property constitutional obligations. In these examples,

property owners are expected to accept that their property rights are limited for the

sake of promoting non-property constitutional rights or goals. The examples in Part 3

also distinguish themselves from those in Part 2 to the extent that the constitutional

examples do not necessarily cast the non-owners’ sharing interests in the form of

servitudes or property rights of any kind. At the same time, the non-exclusion

limitations that are imposed on ownership in these examples often at least resemble

the effects of servitude-like use rights.

The first example, the burial right that is created in favour of farm workers by

section 6(2)(dA) of the Extension of Security of Tenure Act 62 of 1997, resembles

163

See especially Manchester CC v Pinnock [2010] UKSC 45 paras 46, 50.

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the private-law examples to the extent that it looks as if the Act creates a servitude,

or something very like a servitude, in favour of the farm workers. In the second

example, the Kidson decision shows how a non-property constitutional right (the right

of access to housing in section 26(1)) can create a constitutional obligation to

develop the common law in such a way that it does not result in arbitrary deprivation

of someone’s existing access to housing. This example involves the obligation not to

terminate a servitude, rather than creating a servitude by operation of law. The final

example, deriving from the Modderklip and Blue Moonlight decisions, is further

removed from the servitude examples insofar as it does not involve the creation of a

servitude or any other right to use land, but the statutory obligations deriving from

non-property constitutional rights nevertheless force landowners to share the use of

their land, albeit in principle only temporarily, with unlawful occupiers who have

nowhere else to go.

Despite the fact that they do not necessarily result in the creation of

identifiable property rights, these constitutional examples arguably fit the interest-

outcome, non-exclusionary, sharing-oriented structure of Dyal-Chand’s model even

better than the private-law servitude examples did. The reason for this fit is probably

that the constitutional examples share a feature that the private-law servitude

examples (and, to some extent, Dyal-Chand’s examples from American law) do not,

namely a very strong and clear constitutionally desirable (or prescribed) outcome

that frames the judicial evaluation of the parties’ interests in the property (as

indicated by their actual use of it) and that explicitly and authoritatively points

towards a non-exclusionary, sharing remedy on the basis of the constitutional

obligation to promote that desired outcome. The Constitution, together with

legislation enacted to give effect to its transformative and reform-oriented goals,

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indicates that protecting, fulfilling, promoting and respecting the constitutional rights

(section 7(2)) must be aimed at certain desired constitutional outcomes (such as

security of tenure and access to housing) and at avoiding certain constitutionally

unwanted outcomes (such as arbitrary deprivation of property and homelessness).164

The existence of specific, prescribed or strongly desired constitutional and statutory

outcomes in these cases makes a big difference. The examples in Part 3

demonstrate how the constitutionally and statutorily prescribed outcomes hold

together the courts’ assessment of conflicting interests (not always in the form of

legally recognised rights) in the use of land and how that assessment is directed

towards non-exclusionary, sharing remedies that promote the constitutional goals. In

that perspective, the constitutional examples in Part 3 perhaps illustrate the value

and weight of Dyal-Chand’s interest-outcome approach even more strikingly than the

private-law examples do. A point that cannot be explored more fully here but that

opens up further avenues for exploring in view of Dyal-Chand’s model, at least for

post-1994 South African law, emerges from The Constitutional Court’s decision in

Pharmaceutical Manufacturers:

‘There is only one system of law. It is shaped by the Constitution which is the supreme

law, and all law, including the common law, derives its force from the Constitution and

is subject to constitutional control.’165

164

For a more detailed analysis of these desired and unwanted constitutioinal goals see AJ van der Walt Property and Constitution (2012) 132-168, relating these outcomes to the notion in s 39(2) that legislation must be interpreted and the common law developed so as to promote the spirit, purport and objects of the Bill of Rights.

165 Ex Parte President of the Republic of South Africa: In re Pharmaceutical Manufacturers

Association of South Africa 2000 (2) SA 674 (CC) para 44. On the single-system-of-law issue see further F Michelman ‘The rule of law, legality and the supremacy of the Constitution’ in S Woolman, T Roux & M Bishop (eds) Constitutional law of South Africa 2 ed (OS 2003) chap 11 34-44 39; DM Davis & K Klare ‘Transformative constitutionalism and the common and customary law’ (2010) 26 SA Journal on Human Rights 403-509 430.

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This dictum indicates that there might be some form of systemic, constitutionally

inspired pressure to consider or develop sharing remedies in cases where sharing

options might serve a given non-property, systemic constitutional goal or purpose

(such as preventing or not aggravating homelessness) better than the traditional

exclusionary remedies do.

3.6 Constitutional implications of enforced sharing in constitutional law

As was the case with the private-law principles that allow for the creation of a

servitude by operation of law (Part 2), it is necessary to subject the constitutional or

statutory rules that prescribe or require the creation of servitude-like rights or similar

limitations on the right of landowners (Part 3) to constitutional scrutiny to make sure

that they do not authorise arbitrary and therefore unconstitutional deprivation of the

affected owner’s property. As the discussion of the Kidson decision shows, the

constitutional analysis might look very different in the examples from constitutional

law than they do in the private-law servitude cases. An important characteristic of the

constitutional examples in Part 3 is that they are authorised, more or less directly, by

constitutional (or constitutionally inspired statutory) rights and obligations that

promote non-property rights such as human dignity, the right of access to housing

and the right not to be evicted from one’s home arbitrarily. The examples in Part 2

are generally inspired by the promotion of efficient-use goals and the protection of

private property interests, whereas the examples in Part 3 generally feature conflicts

between constitutional non-property goals and private property interests. This is a

significant observation, since the non-property rights that feature in Part 3 (equality,

human dignity, access to housing) would generally enjoy preference in a direct

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constitutional conflict, with the result that the initial justification of the sharing

outcome, which inevitably limits ownership, is either a foregone conclusion or at least

relatively straightforward, whereas (as I suggested before) the efficiency and other

policy considerations that justify the private-law transfers might be questionable in

some instances. Decisions like Nhlabathi, Modderklip and Blue Moonlight indicate

the trend: when limitations are imposed on ownership in the form of non-

exclusionary, sharing remedies that promote constitutional goals such as preventing

homelessness or protecting human dignity, the mere fact of the limitation and the

deprivation of property that it brings about is justified reasonably easily; the only

property-related issue is to ensure (in a second stage of constitutional scrutiny) that

the deprivation is not arbitrary. As long as the reasons for the deprivation are

adequate and provided it is not imposed in a procedurally unfair manner, it should

pass the section 25 test. The constitutional protection of property requires nothing

further than that.166 By contrast, the deprivations of private property brought about by

non-exclusionary sharing remedies in the private-law examples in Part 2 are not

always that easily justified, since the efficient-use motivation for them does not

necessarily outweigh the affected private property interests.

4 Conclusions

On a descriptive level, the analysis in Part 2 and Part 3 of this Article shows that

South African law provides many examples of courts providing non-exclusionary,

166

It is unnecessary to multiply examples, but the same conclusion has been reached in constitutional law in other jurisdictions. The German Federal Constitutional Court has established, in a long line of case law, that the constitutional protection of property in terms of Art 14 of the Basic Law does not insulate extant property holdings against regulatory limitations, even in private law, that are intended to secure other constitutional rights such as human dignity or secure housing; see e g AJ van der Walt Constitutional property law 3 ed (2011) 309.

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sharing remedies on the basis of something similar to the interest-outcome approach

proposed by Dyal-Chand. The private-law examples in Part 2 indicate that South

African courts tend towards sharing remedies in straightforward private conflicts

about the use of property when considerations of justice and fairness or economic

use of land indicate that blunt enforcement of exclusion remedies would be

unsuitable and that a viable sharing option is available. Interestingly, there are signs

that South African courts do not instinctively return to doctrinal orthodoxy at the

remedial stage, as the courts in some of American examples cited by Dyal-Chand

did. The South African examples dealing with the right of way of necessity and

encroachment suggest that, when fairness considerations indicate that exclusionary

remedies will be unacceptable, the courts either apply the common law requirements

more leniently to facilitate a sharing remedial option or even go directly against

doctrinal orthodoxy to fashion a sharing remedy.

Having said that, the South African private-law examples do not go quite as

far in developing sharing remedies as one might expect from a fully developed

interest-outcome approach. Although the sharing remedies granted by the South

African courts are sometimes complemented by compensation awards, there is little

evidence in the private-law examples of really inventive sharing options such as

time-limited or specific-use sharing. In some cases the parties end up actually

physically sharing the use of the property, but in fact that is often simply a result of

the sharing option adopting the format of a servitude, which mostly involves actual

physical sharing in any event. In the final analysis, the private-law examples amount

to little more than either granting or not granting an ex lege servitude. Consequently,

one has to conclude that the private-law servitude examples offer little evidence of

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remedial innovation in the sense of servitudes that involve time-limited or specific-

use sharing of property.

The South African examples from constitutional law are more interesting.

Firstly, these examples show that sharing remedies do not have to be inspired by

fairness considerations relating to conflicting private interests in the use of property;

they can also emerge from the promotion of non-property constitutional rights and

goals such as equality, dignity or access to housing. Secondly, in these cases the

demand to share property can sometimes favour beneficiaries who have no legal

right to use the property. Thirdly, while compensation seems to be an important

feature of sharing remedies generally, is not a necessary element of sharing in the

constitutional context. Finally, sharing does not have to take the form of creating or

recognising a competing property right in favour of the beneficiary – in some

instances it is sufficient to limit the exclusion right of the property owner in such a

way that the beneficiary is allowed to use the property for a specified purpose and

possibly for a limited time. To that extent, these outcomes do represent remedial

innovations that involve sharing.

The most interesting conclusion from the constitutional examples in Part 3 is

that the impulse to create non-exclusionary, sharing remedies is probably stronger in

the constitutional sphere than in the private-law examples discussed in Part 2

because the sharing outcome that is promoted by non-exclusionary remedies in the

constitutional cases is inspired by a strong and clearly defined constitutional

obligation, such as protecting human dignity or preventing homelessness.

Furthermore, it seems as if the deprivation of property that results from an enforced

sharing remedy of this kind is significantly easier to justify in the constitutional cases

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than in the private-law cases because the constitutional purpose (such as promoting

human dignity) provides a stronger constitutional justification for limiting ownership. It

could therefore be concluded that the South African examples in Part 3 tend toward

sharing remedies (resulting from an interest-outcome approach) because of a

constitutional norm that holds the seemingly conflicting interests together. The

constitutional obligation to transform, which places a duty on courts to balance

property rights with access to housing rights (as explained in Port Elizabeth

Municipality), creates a normative pull that strengthens the tendency towards sharing

remedies, especially in cases where strong constitutional rights and values such as

human dignity or access to housing are at stake.

The result supports Alexander’s argument that governance property – and all

sharing solutions arguably create governance property – uniquely (in comparison to

the values associated with exclusion property) promotes values that are associated

with what he describes as property’s moral foundation, namely human flourishing.

The values that are uniquely associated with the pluralistic moral value of human

flourishing, in Alexander’s understanding, include social welfare, community and

sharing. One does not have to share Alexander’s starting point in neo-Aristotelian

virtue ethics or his theory of human flourishing to agree that the South African

Constitution, seen in its historical, social and political context, promotes a set of

values that include social welfare and greater equity in the use of limited resources

such as land. However, this conclusion is not restricted to the unique setting of South

African land-reform law: similar constitutional values and obligations might have a

comparable effect in other constitutional contexts. To the extent that social welfare

requires non-exclusionary remedies, including enforced sharing of the various types

that emerge from the examples, it could be said that constitutional values create a

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normative pull that strengthens the tendency towards sharing remedies. Instead of

human flourishing, one could explain the normative force of the constitutional

obligations that require sharing in the examples discussed in Part 3 from the

perspective of Singer, who describes property as the law of democracy in the sense

that the prerequisites for the kind of life who chose to live in, namely a democracy

that is characterised by freedom, equality and human dignity, necessarily

predetermine and circumscribe the possibilities for the law to allow and regulate the

acquisition, holding and protection of property interests.167 In that context, an

important conclusion of the Article is that principles of democracy and fundamental

freedoms play a fundamental role in property law, both in ex ante defining the

democratic and constitutional space within which exclusive property holding is

possible and in providing the tools to be used ex post to assess the legitimacy and

proportionality of limitations being imposed on property rights.

This conclusion is interesting for the link between the private-law, economic or

efficiency examples in Part 2 and the constitutional examples in Part 3. The

differences between the two sets of examples are obvious: in Part 2, constitutional

analysis only features in the form of ex post section 25(1) analysis to ensure that

enforced sharing remedies do not authorise arbitrary deprivation of property. The

constitutional examples in Part 3, on the other hand, start out with ex ante

constitutional analysis (for example section 26 obligations) that renders a sharing

remedy necessary and involve section 25 analysis as an ex post non-arbitrariness

check on the effects of the enforced sharing remedy. This observation has significant

implications for the methodology of private property law, because it indicates that in

167

JW Singer ‘Property as the law of democracy’ (2014) 63 Duke LJ 1287-1335. See further AJ van der Walt ‘The modest systemic status of property’ (2014) 1 Journal for Law, Poperty and Society (forthcoming).

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a systemic, normatively driven approach to property disputes two discrete kinds of

constitutional analysis are fundamentally involved in property analysis. That

conclusion goes some way towards answering the question that I raised in the

Introduction to this Article: principles of democracy and fundamental freedoms

clearly play a significant role in property law. It might also suggest a partial answer to

an important question that Dyal-Chand raises in her article: insofar as courts lack the

vocabulary and the remedial tools to fashion sharing remedies when both the

circumstances and their own instincts point away from exclusionary outcomes, part

of the solution might be to look at non-property law, especially the fundamental

principles of democracy nd of fundamental, non-property constitutional rights, for

what may be a more suitable and inspiring sharing vocabulary and remedial toolbox.

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