In a case concerning a parking dispute, a recent ruling from the Western Cape High Court offers important clarity on the contours of how neighbours should exercise their rights in relation to a servitude of right of way – and why reasonableness and Ubuntu shape the law governing neighbourly disputes.
The dispute
In substance, Venter v Helfer and Others concerned a parking dispute between neighbours in the leafy suburb of Higgovale in Cape Town. The Venters (‘the applicants’) have a right of way over a neighbouring driveway. They alleged that the respondents, who own units in the neighbouring sectional title scheme over which the servitude is registered, frequently parked in a way that obstructs their garage access. Accordingly, the applicants sought to interdict and restrain the respondents from parking on the driveway.
The nature and limits of a servitude of right of way
Under South African law, a servitude of right of way grants the dominant property owner the legal right to use a defined portion of the servient property for access. In accordance with prevailing legal principles, the dominant owner must be able to make ‘effective use’ of the access and the servitude must impose the least possible burden on the servient property. In the neighbour law context, these principles ensure that the servitude fulfils its purpose by allowing unimpeded entry and exit, while avoiding unnecessary and rigid restrictions on the servient owner’s rights.
In this case, the purpose of the servitude was to allow the dominant owners to drive into and out of their garage. Specifically, the court accepted that ‘effective access’ includes the ability to enter and exit the garage safely and in a single, ordinary turning movement.
When is parking on a servitude unlawful?
While the servitude did not expressly prohibit parking by the servient property’s occupants, doing so becomes unlawful when it unreasonably interferes with the dominant owner’s access rights.
Following a site inspection, the evidence indicated that the parked vehicles frequently obstructed the driveway to the extent that the garage could not be accessed without difficulty. This parking interference went beyond minor inconvenience and undermined the essential purpose of the servitude, i.e. to enable the respondents to access their garage.
Accordingly, the court granted an order prohibiting parking that unreasonably obstructs the dominant owner’s use of the servitude. Importantly, the court refused to prohibit parking entirely as such an order would impose a burden greater than is necessary on the servient property.
Reasonableness as the guiding test
In reaching this decision, the court relied heavily on the principle of reasonableness, which operates as a substantive legal test in servitude disputes to determine whether conduct is acceptable or constitutes unlawful interference.
In applying this test, the court assessed the following considerations:
- The nature and purpose of the servitude;
- The extent of the interference;
- Whether the dominant owner’s access was materially impeded; and
- Whether a less intrusive alternative could achieve the same result.
In light of these factors, the court concluded that the respondents’ parking practices exceeded the limits of reasonable use.
Ubuntu and constitutional values in neighbour disputes
A significant feature of the judgment is its express reliance on constitutional values to interpret and develop the common law pertaining to servitudes. Indeed, the court emphasised that neighbour disputes must be approached through the lens of dignity, fairness, relational living, and mutual respect, which are core components of the principle of Ubuntu. Ubuntu, the court explained, requires neighbours to act with a spirit of accommodation rather than rigidly insisting on the enforcement of their legal rights. In this sense, litigation should be a last resort. Highlighting the importance of pursuing practical and cooperative solutions where possible, the court noted that both parties had contributed to the breakdown in neighbourly relations and had failed to apply the values of Ubuntu and reasonableness before litigating their parking dispute.
Why this judgment matters for property owners and occupants
In essence, the decision confirms that a dominant owner is entitled to unobstructed access under a servitude and that the servient owner may use the servitude area for parking purposes, but not in a way that unreasonably interferes with their garage access. The case accordingly illustrates that property rights are not absolute and do not operate in isolation. Pressingly, their exercise is shaped by fairness, proportionality, and constitutional principles, including Ubuntu, that promote a more cooperative and respectful approach to shared spaces.
If you’re facing a parking or garage access dispute, are concerned about the practical ramifications of registering a servitude right of way, or need clarity on your rights, legal guidance is available. Contact our team of property-focused and sectional title dispute attorneys at info@stbb.co.za.
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