Linvestment cc v hammersley and another 2008 (3) sa 283 (sca) case summary – servitudes (servient tenement, changing of route) facts: appellant’s property is subject to two registered servitudes in favour of the first respondent (both of them pertaining to a right of way.
Furthermore, in galant v mahonga it was held that the holder of a right of habitatio is entitled to recover a right relating to habitatio with the rei vindicatio this was approved in kidson and another v jimspeed enterprises cc and others.
Constitutional court supreme court of appeal competition appeal court high courts high court of south africa north gauteng pretoria high court of south africa south gauteng johannesburg linvestment cc v hammersley and another (634/06)  zasca 1 (28 january 2008) february 2008. Division: the supreme court of appeal before: howie p, mthiyane, heher, combrinck jja & kgomo aja heard: 21 november 2007 delivered: 28 february 2008 summary: land - servitudes - right of way - defined and registered - relocation at instance of owner of servient tenement - when allowed constitutional law - s 173 - development of the common law - when appropriate. On appeal from: north gauteng high court (pretoria) (raulinga j sitting as court of first instance): 1 the appeal is upheld with costs, including the costs of two counsel.
The court failed to apply mkangeli v joubert properly the supreme court of appeal (the “sca”) stated that a person in charge need not be the owner of the property to declare a person an unlawful occupier.
The issue in this appeal, simply stated, was whether the owner of a servient tenement can, of his own volition, change the route of a defined right of way registered against the title deeds of his property the answer until recently was no.