Eskom Fails to Prove Existence of a Servitude on Farmland
Eskom Holdings Limited v Grundy (AR380/2017) [2018] ZAKZPHC 1 (16 February 2018)
Eskom appealed against an order made by the court a quo, directing it to remove certain overhead power lines and ancillary equipment from a portion of a farm owned by Mr D J Grundy in the Kokstad area. Mr Grundy intended to use the land in question for farming purposes. Eskom claimed that it had the right to have the power lines on the farm as a result of the acquisition of a servitude, which claim was based on two averments:
- It had acquired the servitude by acquisitive prescription, on the basis that it had openly and as though it was entitled to do so, exercised the rights and powers which a person who has a right to such servitude is entitled to exercise, for an uninterrupted period of thirty years. The decisive question, as to the establishment of the servitude, was the date of erecting of the powerlines. Eskom alleged that the powerlines were erected on 21 June 1979. The court a quo approached the matter on the basis that there was no evidence on the papers as to when the power lines on Mr Grundy’s farm were erected, and that therefore Eskom had failed to establish a servitude acquired by prescription.
- Eskom claimed a right to have its lines on the farm is a so-called retrospective wayleave agreement. Once again, the court a quo refused to uphold Eskom’s contention on the grounds that the document put up by Eskom, which contains the standard conditions relating to the land in question, did not bear Mr Grundy’s signature or initial. The court held that there was no evidence from Eskom that the document was attached to or accompanied the agreement.
The appeal was accordingly dismissed with costs.
August 19, 2024
