Ewigdurende oorsaak. Die perpetua causa-vereiste by erfdiensbaarhede: behoefte van die heersende erf en geskiktheid van die dienende erf (deel 2)

At least three aspects of the perpetua causa requirement for real servitudes may be distinguished: (1) the possibility of exercising a real servitude may not be dependent on a positive act of the owner or user of the servient tenement; (2) the servient tenement must be fit on a permanent basis for the purposes of the exercise of the servitude and the subsequent owners of the dominant tenement must as such have a permanent need for exercising the servitude; and (3) a real servitude may not be established subject to a resolutive condition or dies. The first of these aspects was discussed in a previous edition of this journal. The second aspect and briefly also the third aspect are discussed in the current article. The link between the second aspect and the utilitas requirement is discussed, as well as the confusion in the common law between the concepts of causa perpetua and causa continuam. The specific classical Roman rules that flowed from the perpetua causa requirement (ie aqua viva and ex capite vel ex fonte) and their destiny in Justinian Roman law, Roman-Dutch law and South African law are discussed. The content of these rules has over the decades been changed and diluted and the rules themselves have often even been abolished. It is doubtful whether a general requirement of perpetua causa existed in Roman law. D 8 2 28 is the only text where this seems to be the case but the text is obscure and probably interpolated. The alleged requirement plays a minor role in Roman-Dutch law and South African case law. Some Roman-European authors reject the requirement expressly. The requirement has been abolished in modern Dutch law. Some South African authors still maintain a diluted perpetua causa requirement with the aid of an open-ended standard. It is argued that such a standard is inappropriate in the particular context. The requirement also does not make sense in the light of the aim of the requirements for real burdens on land, as a real servitude without perpetual cause places a much lighter onus on the land than one that has such a perpetua causa does. The requirement should also be abolished in the light of the modern social conception of ownership. The third aspect of the alleged requirement is also discussed. In classical Roman law real servitudes could not be established subject to a resolutive condition or dies. This rule has been abolished in Justinian Roman law and in Roman-Dutch law. It therefore does not form part of South African law. An attempt to reintroduce the rule in a South African case was fortunately thwarted by the legislature.