THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case No: 271/2021

In the matter between:

MORGANAMBAL MANNARU                                                     FIRST APPELLANT

BODY CORPORATE OF KINGS                                               SECOND APPELLANT
AVENUE NO 1

and

ROBERT MCLENNAN-SMITH                                                    FIRST RESPONDENT

PAIGE MCLENNAN-SMITH                                                        SECOND RESPONDENT

LEITH ROSS CAWCUTT                                                             THIRD RESPONDENT

GLENDA CAWCUT                                                                      FOURTH RESPONDENT

REGISTRAR OF DEEDS
FIFTH RESPONDENT
KWAZULU-NATAL NO

Neutral Citation:
Morganambal Mannaru and another v Robert MacLennan-Smith
and others (271/2021) [2022] ZASCA 137 (24 October 2022)

Coram:
VAN DER MERWE, MOTHLE and MABINDLA-BOQWANA JJA
and MOLEFE and MASIPA AJJA

Heard:

24 August 2022

Delivered:

24 October 2022

Summary:
Property law – servitude of right of way – whether owners of
dominant tenements entitled to erect gate across servitude road – in absence of
agreement to the contrary, answer lies in application of civiliter modo principle –
reasonable balancing of rights of dominant and servient owners required – appeal
dismissed.

___________________________________________________________________

ORDER
___________________________________________________________________
On appeal from: KwaZulu-Natal Division of the High Court, Durban (Pillay J, sitting
as court of first instance):

The appeal and the cross appeal are dismissed with costs.

___________________________________________________________________

JUDGMENT
___________________________________________________________________

Mothle JA (Van der Merwe and Mabindla-Boqwana JJA and Molefe and Masipa
AJJA concurring):

[1] This is an appeal and cross appeal against an order of the KwaZulu-Natal
Division of the High Court, Durban (Pillay J). The crux of the dispute between the
appellants and respondents turns on the construction of a gate erected across a
servitude road on the property of the first appellant as the servient owner, providing
access to the properties of the respondents, the servitude holders.

[2] The parties reside in an area known as Westville, along Kings Avenue in Durban.
The first appellant is the registered owner of sections 1 and 2 of the sectional title
scheme known as King Avenue No 1 (the scheme) under sectional title deed of
transfer ST064384/07. As these sections are the only ones in the scheme, the first
appellant is, in terms of s 16(1) of the Sectional Titles Act 95 of 1986, also the owner
of the common property of the scheme. The second appellant is the Body Corporate
of the scheme, Scheme number 386/98. The first appellant is the chairperson of the
Body Corporate. The scheme is situated on the remainder of Erf 1719, Westville,
(1 Kings Avenue).

[3] The first and second respondents are the registered owners of Erf 1747,
Westville (1B and 1C Kings Avenue) held under the deed of transfer T41108/03 and
portion 1 of Erf 1746, Westville (1E Kings Avenue) held under deed of transfer
T027482/09. The third and fourth respondents are the registered owners of the
immovable property described as the remainder of Erf 1746, Westville (1D Kings
Avenue) held under deed of transfer T014244/2012.

[4] A road servitude over 1 King Avenue exists in favour of the properties of the
respondents (1B, 1C, 1E and 1D Kings Avenue). It is depicted on the approved
sectional plan of the scheme (NPQRST, measuring 10.06 by 30 meters). The road
servitude is registered against the title deeds of 1B, 1C, 1D and 1E Kings Avenue but
not against that of 1 Kings Avenue, as the servient tenement. The respondents are of
the view that this is simply due to a conveyancing oversight. The servitude provides
the only means of access to the respondents’ properties.

[5] On 19 May 2012, the appellants and respondents concluded an oral agreement
at the instance and request of the respondents. In terms of the agreement, the
appellants gave consent to the respondents to erect a temporary security gate across
the servitude roughly between points P and S, at their own expense. The respondents
contended that the servitude was accessible by anyone driving or walking on
Kings Avenue. Consequently, their properties were exposed to the presence of
undesirable persons that created a security risk. It was agreed that the respondents
were to obtain the necessary building approval and to ensure that the appellants have
the use of the servitude on the respondents’ side of the gate on reasonable notice. It
was a further part of the agreement that the gate’s construction would not prejudice
the appellants’ plans to subdivide 1 Kings Avenue in the future. Further, it was agreed
between the parties that the maintenance of the temporary structure would be at the
expense of the respondents. The temporary structure was duly constructed and
remained in place at the time of the institution of the present litigation.

[6] About a year later, in March 2013, the respondents approached the appellants
with a request to construct a permanent gate, to enhance the security of their
properties. The appellants declined. The refusal led to an exchange of emails, trading
accusations and counter-accusations, in tones that led to a deterioration of the initial

cordial relationship between the parties. The respondents complained of the constant
barking of the first appellant’s dogs and reported her for operating an illegal business.
The appellants countered by demanding that the temporary gate be removed due to
the respondents having failed to obtain municipal approvals. Litigation ensued when
the respondents instituted action proceedings in the high court.

[7] In the action, the respondents sought an order interdicting and restraining the
appellants from removing, damaging, or opening the gate providing access to their
properties and a declaration of the respondents’ right to construct and maintain a
permanent gate across the road servitude leading to their properties. The respondents
also requested an order directing the appellants to register a Notarial Deed of Road
Servitude over 1 Kings Avenue in favour of the respondents. The appellants defended
the action by delivering a plea and a claim in reconvention, wherein they sought an
order compelling the respondents to remove the temporary gate, which they viewed
as an encroachment; alternatively, that the plaintiffs be ordered to take transfer of the
servitude against payment of R300 000.

[8] After having considered the oral evidence of witnesses, on 20 April 2020, the
high court granted the following order:
‘a. The plaintiffs are permitted to erect and maintain a gate on the road servitude marked on
the Surveyor General’s diagram S.G. No. D212/1998 as NPQRST, measuring 10.06 by
30 meters (approximately) (the servitude) at approximately between the points P and S,
subject to the following conditions:
(i) The plaintiffs must give the first and second defendants or anyone they authorise
unsupervised access to use the servitude;
(ii) The plaintiffs must use the appropriate technology to give effect to this order;
(iii) The cost of erecting, maintaining and securing the gate shall be for the plaintiffs account;
(iv) The plaintiffs must maintain the servitude.
b. The order in the paragraph a. above remains in force:
(i) For as long as the first or second defendant is the owner of servitude;
(ii) Until the parties agree to vary any of its terms.
c. At the plaintiffs’ expense, the defendant, as owner of the Remainder of Erf 1719 Westville
comprising the common property of the Sectional Title Scheme known as Kings Avenue
No 1 and as more fully described on Sectional Plan No. SS386/1998, is directed to sign a

Notarial Deed of Road Servitude to register the servitude over the common property in favour
of:
(i) The first and second plaintiffs as owners of:
Erf 1747 Westville (1B and 1C of Kings Avenue) held under the deed of transfer T41108/08;
and
Portion 1 of Erf 1746 Westville (1E Kings Avenue) held under deed of transfer T027482/09.
(ii) to the third and fourth plaintiffs as owners of Remainder of Erf 1746, Westville (1D Kings
Avenue) held under deed of transfer T014244/2012.
d. Each party shall pay its own costs.
e. The defendant’s claim in reconvention is adjourned indefinitely; with no order as to costs.’

[9] Aggrieved by the high court’s decision, the appellants lodged an unsuccessful
application for leave to appeal to it in July 2020. The respondent also lodged an
application for leave to cross appeal the cost order, which was not granted. The
appellants then turned to this Court with an application for leave to appeal, which
application was granted on 2 March 2021. The respondents were also granted leave
to cross appeal on costs. It is thus with leave of this Court that the matter is before us.

[10] On appeal the appellants challenged the order mainly on the grounds that it
would amount to the circumvention of the provisions of the National Building
Regulations and Building Standards Act 103 of 1977 (the Act) and to arbitrary
deprivation of property in contravention of s 25(1) of the Constitution. They also
contended that there was no justification or basis for the parts of the order obliging the
registration of the servitude over 1 King Avenue (para c.) and adjourning the claim in
reconvention indefinitely (para e.).

[11] The first-mentioned two grounds were not pleaded. They are in any event
without merit. The appellants appear to think that the order would permit the
respondents to disregard the provisions of the Act. But that is clearly not so. Should
the permanent gate fall within the definition of ‘building’ in the Act (on which I express
no opinion), there would in due course have to be compliance with the relevant
provisions of the Act. The Constitutional Court has in various cases provided guidance
in respect of the protection against arbitrary deprivation of property under s 25(1) of

the Constitution.1 And it suffices to say that the order demonstrates that the high court
was at pains to ensure that the appellants would not unreasonably be deprived of
access to and use of the portion of 1 Kings Avenue, which is subject to the servitude.
I shall return to the remaining aforesaid contentions.

[12]    What the appellants describe as a ‘right of way’ is a servitude derived from the
common law. According to AJ van der Walt,2 a servitude is ‘a limited real right that grants
the servitude holder specified use entitlements over someone else’s property and
correspondingly reduces or burdens the servient owner’s entitlement to use and enjoy her own
property’. (Emphasis added)
In addition, this author posits that:
‘Generally, an owner who grants a servitude over her property to someone else retains her
right to also use, enjoy and exploit the property, but she can exercise these entitlements only
insofar as doing so does not interfere with the effective exercise of the servitude. This indicates
a tension between the servitude holder’s right to use the property in terms of the servitude and
the servient owner’s right to use her own property insofar as the servitude allows.’

[13] Often the relationship arising from the exercise of a servitude is fraught with
tensions that sometimes develop into disputes, for the most part, between the user
rights of the dominant owner and the rights of the servient owner. The approach
adopted by our courts in resolving such disputes is reliance on the principle of civiliter
modo.  Relying on J Scott,3 it has been pointed out that:
‘the principle of civiliter…is a particular expression of the principle of reasonableness...’ And
at 242-243 ‘in modern South African servitude law the Latin phrase civiliter modo is
consistently read as a set of adverbs that both qualify the conduct of a servitude holder, so
that a servitude holder who acts reasonably is said to be acting in a civilised (civiliter) manner
(modo).’ In modern South African servitude law the Latin phrase civiliter modo is consistently

1 First National Bank of SA Limited t/a Wesbank v Commissioner for the South African Revenue
Services and Another; First National Bank of SA Limited t/a Wesbank v Minister of Finance [2002]
ZACC 5; 2002 (4) SA 768; 2002 (7) BCLR 702. See also Mkontwana v Nelson Mandela Metropolitan
Municipality [2004] ZACC 9; 2005 (1) SA 530 (CC); 2005 (2) BCLR 150 (CC), Reflect-All 1025 CC and
Others v MEC for Public Transport, Roads and Works, Gauteng Provincial Government and Another
[2009] ZACC 24; 2009 (6) SA 391 (CC); 2010 (1) BCLR 61 (CC) and Arun Property Development (Pty)
Ltd v City of Cape Town [2014] ZACC 37; 2015 (3) BCLR 243 (CC); 2015 (2) SA 584 (CC).
2 AJ van der Walt The Law of Servitudes (2016) at 187. (Emphasis added.)
3 J Scott ‘A growing trend in source application by our courts illustrated by a recent judgment on a right
of way’ (2013) 76 THRHR at 239-251 at 242-243.

read as a set of adverbs that qualify the conduct of the servitude holder, so that a servitude
holder who acts reasonably is said to be acting in a civilised (civiliter) manner (modo).’4

[14]     In this regard, Van der Walt (p249) states:
‘According to the civiliter principle, the servitude holder must exercise the servitude so as to
impose the least possible burden on the servient owner. This implies that a balance must be
struck between the right of the servitude holder to do anything that is necessary for proper and
effective exercise of the servitude; the right of the servitude holder to exercise those
entitlements that are clearly granted in the servitude; and the residual right of the servitude
owner to use her servient property insofar as that does not interfere with legitimate exercise
and enjoyment of the servitude entitlements.’

[15] The approach of adopting a wider and relaxed interpretation of the common law
to accommodate modern day imperatives, was endorsed by this Court in Linvestment
CC v Hammersley and Another 2008 (3) SA 283 (SCA), where the common law’s strict
interpretation of the terms of the servitudes was developed in terms of s 173 of the
Constitution. In that case, the owner of the servient tenement wanted to relocate the
right of way. This Court concluded that the owner of the dominant tenement had no
acceptable reason to subject the servient tenement to the terms of the servitude as it
was registered. The circumstances had changed since the servitude had been
registered, and considerations of convenience and prejudice determined whether the
relocation should be granted. (Own emphasis)

[16] In Roeloffze NO and Another v Bothma NO and Others 2007 (2) SA 257 (C),
the court dealt with a dispute concerning the erection of a gate across a road servitude.
The roles of the parties in that case, were reversed compared to those in the case
before us. The property owner erected the gate. The court held that the mere placing
of a gate across a right of way did not per se amount to unlawful interference with the
rights of the servitude holder. Of importance, the court referred to weighing the
respective rights of the dominant owner and servitude holder. This balancing act
ensured that the respondents’ proposed electronic gate would not constitute an
unlawful interference with the rights of the servitude holder.

4 Tshilidzi Norman Raphulu ‘The Right of Way of Necessity: A Constitutional Analysis’ (2013) page 52.

[17] In respect of gates that close off a servitude road, in particular, Van der Walt
(p255) states:
‘The first question is whether either having or not having a gate is essential for effective use
of the servitude – if having a gate is essential, the effective-use principle takes precedence
and the dominant owner may install a gate. The civiliter principle will then indicate what is
necessary, in terms of providing others with access to the road by way of remote control
devices or access codes, to render use of the servitude reasonable. If not having a gate is
essential to use of the servitude, the effective-use principle prescribes that the dominant owner
can prevent the servient owner from installing one. If neither having nor not having a gate is
essential, the next question is whether either having or not having a gate was clearly foreseen
and provided in the servitude grant, in which case the consensual arrangement must be given
effect. Finally, if either having or not having a gate was neither necessary for effective use of
the servitude nor explicitly provided for in the servitude grant, any arrangement regarding the
installation and use of a gate must be decided on the basis of reasonableness (the civiliter
principle). From the side of the servitude holder, access to the servitude road is obviously
necessary for effective use and therefore the servient owner can never install a gate without
giving the servitude holder effective access to the road by way of remote control devices,
access codes and the like. From the side of the servient owner, installation of a gate by the
servitude holder will be reasonable provided it does not prevent the servient owner of
continued reasonable access and use of her land (unless exclusive use of the servitude was
foreseen in the grant).’

[18] In my view, this passage should be adopted as a correct exposition of our law
on the subject. The last-mentioned scenario reflected in the passage is applicable to
this case. In granting the order, the high court had to weigh the reasons for the refusal
of the request by the appellants against the prejudice that may befall the respondents
due to their exposure to security risks. It is clear from the judgment that in fashioning
the order, the high court performed the balancing act referred to above. The high court
found the respondents’ reasons for requiring a permanent gate compelling. The order
rightly recognised the respondents’ rights to personal safety and security. By the same
token, paras a. (i) and (ii) of the order effectively provided for reasonable access by
the appellants to the servitude area. In the result, paras a. and b. of the order cannot
be faulted.

[19] The same applies to para c. of the order. As I have said, the servitude is
registered against the title deeds of the respondents’ properties and clearly depicted
in the approved sectional plan of the scheme. Importantly, the appellants admitted the
existence and extent of the servitude in the pleadings. Therefore, para c. of the order
merely serves to confirm what in fact is common cause between the parties.

[20] The high court did not provide reasons for the indefinite adjournment of the
claim in reconvention in para e. of the order. The main claim in reconvention was for
the removal of the temporary gate. The high court correctly held that the parties had
agreed to the erection of the temporary gate. Thus, it is difficult to fathom the reasons
for this order. There is no need to dwell on this, however, because the effect of para a.
thereof is that an appeal against para e. could have no practical effect or result.

[21] The cross appeal is against the order that each party shall pay its own costs
(para d.). It is trite that a costs order is made in the exercise of a strict or true discretion,
that may only in limited circumstances be interfered with on appeal. The respondents
were unable to point to any misdirection in respect of the costs order. Consequently,
both the appeal and the cross appeal falls to be dismissed with costs.

[22] In the result, I make the following order:

The appeal and the cross appeal are dismissed with costs.

_______________________
SP MOTHLE
JUDGE OF APPEAL

APPEARANCES
For appellants:

RBG Choudree SC (with RR Kisten)
Instructed by:

Gosai and Company, Durban

Honey Attorneys, Bloemfontein

For the respondents:

HA De Beer SC
Instructed by:

NSG Attorneys, Durban

Webbers Attorneys, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

24 OCTOBER  2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
Morganambal Mannaru and another v Robert MacLennan-Smith and others (271/2021) [2022] ZASCA
137 (24 October 2022)
Today the Supreme Court of Appeal (SCA) handed down judgment and dismissed an appeal and cross-
appeal with costs against the decision of the KwaZulu-Natal Division of the High Court of South Africa,
Durban (the high court).
On 19 May 2012, the appellants and respondents concluded an oral agreement at the instance and
request of the respondents. In terms of the agreement, the appellants gave consent to the respondents
to erect a temporary security gate across the servitude at their own expense. The respondents
contended that the servitude was accessible by anyone driving or walking on Kings Avenue.
Consequently, their properties were exposed to the presence of undesirable persons that created a
security risk. It was agreed that the respondents were to obtain the necessary building approval and to
ensure that the appellants have the use of the servitude on the respondents’ side of the gate on
reasonable notice. It was a further part of the agreement that the gate’s construction would not prejudice
the appellants’ plans to subdivide 1 Kings Avenue in the future. Further, it was agreed between the
parties that the maintenance of the temporary structure would be at the expense of the respondents.
The temporary structure was duly constructed and remained in place at the time of the institution of the
present litigation. About a year later, in March 2013, the respondents approached the appellants with a
request to construct a permanent gate, to enhance the security of their properties. The appellants
declined. The refusal led to an exchange of emails, trading accusations and counter-accusations, in
tones that led to a deterioration of the initial cordial relationship between the parties. The appellants
countered by demanding that the temporary gate be removed due to the respondents having failed to
obtain municipal approvals. Litigation ensued when the respondents instituted action proceedings in
the high court. The high court ruled in the respondent’s favour.
On appeal the SCA dismissed the appeal and cross-appeal and upheld the high court order. In doing
so, the SCA held that:
The first question was whether either having or not having a gate was essential for effective use of the
servitude – if having a gate was essential, the effective-use principle took precedence and the dominant
owner may install a gate. The civiliter principle would then indicate what was necessary, in terms of
providing others with access to the road by way of remote control devices or access codes, to render
use of the servitude reasonable. If not having a gate was essential to use of the servitude, the effective-
use principle prescribes that the dominant owner could prevent the servient owner from installing one.
If neither having nor not having a gate was essential, the next question was whether either having or
not having a gate was clearly foreseen and provided in the servitude grant, in which case the consensual
arrangement must be given effect. Finally, if either having or not having a gate was neither necessary
for effective use of the servitude nor explicitly provided for in the servitude grant, any arrangement
regarding the installation and use of a gate must be decided on the basis of reasonableness (the civiliter
principle). From the side of the servitude holder, access to the servitude road was obviously necessary

for effective use and therefore the servient owner can never install a gate without giving the servitude
holder effective access to the road by way of remote control devices, access codes and the like. From
the side of the servient owner, installation of a gate by the servitude holder will be reasonable provided
it did not prevent the servient owner of continued reasonable access and use of her land (unless
exclusive use of the servitude was foreseen in the grant).

~~~~ends~~~~