Abstract
LL.M.
Chapter 1 investigates the requirement of praedia utilitas. The continuing
existence of this requirement is considered desirable and therefore the broad
interpretation thereof by van Oven and others is rejected. Their approach
involves a disregard of the benefit requirement. Attention is drawn to the
fact that in South African law (unlike Roman law), not only is the natural
condition of the dominant tenement taken into account, but also its
arrangement. in deciding whether the benefit requirement is complied with.
Several criteria for the benefit requirement (from common law, Dutch and South
African authors and cases) are discussed. The conclusion is reached that no
decisive criterium has yet been found nor is it probable that one will be
found. The different criteria have to be weighed up against each other. One
has to accept that economic, social and historical considerations, apart from
these criteria. can play a part in the decision whether or not an alleged
praedial servitude satisfies the benefit requirement. Some of these are
briefly discussed. In a supplement Dutch cases on the requirement of praedia
utilitas are discussed.
Chapter 2 investigates the requirement of perpetua causa. Three different
aspects of this requirement are considered. Some authors deduct from the
first part of D 8 2 28 the principle that the possibility of exercising a
praedial servitude may not be dependent on an act by the owner or user of the
servient tenement. This aspect of the requirement is rejected as there is almost no authority for it in South African law and because it is undesirable
in terms of legal policy. The second aspect of the requirement demands the
eternal capability of the servient tenement to provide a benefit to the
dominant tenement, whilst the dominant tenement must have a corresponding
eternal need in this regard. Different author's views on the relationship
between this aspect of the requirement of perpetua causa and the requirement
of praedia utilitas, are discussed. The confusion of others concerning the
difference between a causa perpetua and a causa continuam is indicated. It
is pointed out that the requirement of perpetua causa is not properly founded
in common law. In Roman law a causa perpetua was only required for
servitudes concerning water, which had to be aqua viva to satisfy this
requirement. In South African law aqua viva is not required and therefore the
requirement of perpetua causa became obsolete. The position in modern Dutch
law is researched. On grounds of legal policy the perpetua causa-requirement
is considered undesirable, as it constitutes an arbitrary restriction on
socially beneficial real burdens. The abolishment of the requirement will be
in accordance with the recent attempts by South African jurists to adopt a
more social definition of the concept of ownership. The third aspect of the
requirement (that a praedial servitude may not be constituted under a
resolutive condition or period fixture), has been abolished long ago.
Chapter 3 investigates the requirement of vicinitas. The view is taken that
a great distance between the dominant and servient tenements is not per se in
conflict with this requirement. The requirement is seen merely as a
manifestation of the utilitas-requirement with regard to the distance between
the tenements. Support for this viewpoint is found in common law, modern Dutch, English and South African law. The dominant and servient tenements may
be any distance apart, provided the servient tenement can properly benefit the
dominant tenement. According to D 8 3 7 1, de a 1 i ng with rura 1 servitudes, an
intermediate tenement must be subject to an appropriate servitude. The
validity of this rule in common law, modern Dutch and South African law is
investigated. The position of the owner of the dominant tenement who has the
competence to use the intermediate tenement precario, is discussed with
reference to English and Dutch cases. The conclusion is reached, on authority
and grounds of policy, that the rule in Q 8 3 7 1 should not be followed in
South African law. The existence of a praedial servitude is admissible if
the servitude, having regard to the factual situation, will probably benefit
the dominant tenement, notwithstanding the presence of any unburdened
intermediate tenements.