SCHEDULE 2
PROCEDURAL MATTERS REGARDING SERVITUDES
[Sections 127(4) and 129(2)]
| (1) |
A person who intends to claim a servitude or an amendment of a servitude under the Act must give the owner of the land which will be subject to the servitude written notice of his or her claim. |
| (2) |
Where a claimant is not the owner of the land in favour of which the servitude is claimed, the claimant must give the owner written notice of the claimant's claim. |
| (3) |
The notice must include details of at least the following, where relevant: |
| (a) |
the entitlement of the claimant to the use of the water; |
| (b) |
a description of the land which will be subject to the servitude; |
| (c) |
whether the servitude claimed is a personal or a praedial servitude; |
| (d) |
in the case of a personal servitude, the name, identity number or registration number (if applicable) of the person in whose favour the servitude is claimed; |
| (e) |
in the case of a praedial servitude, a description of the land in favour of which the servitude is claimed; |
| (f) |
the likely impact of the servitude on the land or its use; |
| (g) |
in the case of a servitude of aqueduct, the route along which the water is to be led over the land which will be subject to the servitude and other affected land; |
| (h) |
in the case of a servitude of submersion, where the water will be stored and the area that will be submerged; |
| (i) |
the nature and locality of any proposed waterwork, including any road or other structure, which will reduce the loss and inconvenience to the owner or occupier of the land which will be subject to the servitude, as a result of the servitude; |
| (j) |
how and when maintenance of the proposed waterwork is likely to be carried out; |
| (k) |
the nature, quantity and situation of any materials required from the land which will be subject to the servitude for the purpose of constructing any proposed waterwork; |
| (l) |
the land reasonably required during the construction period for— |
(i) construction camps;
(ii) accommodating people;
(iii) workshops; or
(iv) storage purposes;
| (m) |
the extent and location of any land reasonably required for construction, operating and maintaining a proposed waterwork on the land which will be subject to the servitude; and |
(n) the compensation offered.
| (4) |
A plan depicting the location of the proposed waterworks on the land which will be subject to the servitude must be attached to the notice. |
| (5) |
When a person gives a notice of a claim for a servitude or for an amendment of a servitude, that person must also send, by registered post, a copy of the notice to— |
| (a) |
the lessee of the land; |
| (b) |
the national, provincial or local government authority responsible for controlling, maintaining or repairing a road across which the claimant intends constructing a waterwork in terms of the servitude or amendment; and |
| (c) |
every person who, from a perusal of— |
| (i) |
the title deeds of the land; |
| (ii) |
the records of the Registrar of Mining Titles; or |
| (iii) |
the records of any other government office which records prospecting or mining rights, |
appears to have any interest in the land which may be negatively affected by the servitude, if the whereabouts of the person can be readily ascertained.
| (6) |
A notice under item 1 or 2 may be amended as a result of— |
| (a) |
the claimant exercising his or her rights under section 128 of the Act; or |
| (b) |
objections to the notice by the owner of the land subject to the servitude or the owner of the land in favour of which the servitude is claimed. |
| (7) |
An amended notice must be dealt with in the same way as the original notice. |
| (8) |
A claimant may, not earlier than 14 days and not later than 90 days after the notices required in terms of this Schedule have been given, apply to the High Court for the award of a servitude claimed in terms of the procedure set out in this Schedule and the High Court may make such order as it deems fit. |
Protection of Businesses Act, 1978
