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[2018] ZAWCHC 163
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Quest Petroleum (Pty) Ltd v Walters and Another (16225/2017) [2018] ZAWCHC 163; [2019] 1 All SA 547 (WCC) (9 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE
NO: 16225/2017
In
the matter between:
QUEST
PETROLEUM (PTY)
LTD
Applicant
and
MARLENE
WALTERS
First
Respondent
VAN
ZYL’S GARAGE
CC
Second
Respondent
Coram:
P.A.L.Gamble, J
Date
of Hearing: 16 August 2016
Date
of Judgment: 9 November 2018
JUDGMENT
DELIVERED ON 9 NOVEMBER 2018
GAMBLE,
J:
INTRODUCTION
[1]
This matter concerns the enforcement by the
applicant, Quest Petroleum (Pty) of Port Elizabeth, of what it terms
“
a product servitude”
at
a filling station situated at 58 Main Road, Piketberg, Western Cape,
more properly described as Erf 229, Piketberg and hereinafter
referred to as “
the property
”.
[2]
In 2013 the property was owned Piet van Zyl
Beleggings BK (“
Beleggings
”)
and the business was effectively conducted by a certain Dale Gentle
utilizing the second respondent (“
Van
Zyl’s
”) as his corporate
entity. The petroleum products that were sold by Van Zyl’s on
the property were supplied to it by
Quest under an existing written
agreement (“
the 2013 agreement
”).
In March 2014 the first respondent (“
Walters
”)
bought the property from Beleggings and accepted Van Zyl’s as
her tenant, with Gentle still in charge. Quest continued
to supply
Van Zyl’s in terms of the 2013 agreement.
[3]
In 30
March 2016
[1]
a new supply agreement (“
the
2016 supply agreement
”)
was concluded between Quest and van Zyl’s which entitled Quest
to be the exclusive supplier to the service station
business for a
period of 10 years, the effective date for the commencement of that
period being the date upon which all suspensive
conditions under the
agreement had been fulfilled. One such suspensive condition provided
that if Van Zyl’s did not own the
property, a Tripartite
Agreement would have to be concluded between those parties and the
owner “
to
regulate their relationship.
”
[4]
By virtue of Walters’ ownership of
the premises she was thus invited to enter into negotiations with
Quest and Van Zyl’s
to give effect to the suspensive condition
as aforesaid. Discussions then ensued involving Gentle, Quest
(represented by its national
retail manager, Adriaan le Roux),
Walters, her husband (Willem Walters) and her attorney, James King of
Oudtshoorn.
EVENTS
PRECEDING THE REGISTRATION OF THE SERVITUDE
[5]
A relevant clause in the draft Tripartite
Agreement put up by Quest related to its demand for the registration
of a servitude over
the property in favour of Quest that only its
products would be sold from the property. In the founding affidavit,
Quest’s
marketing director, Jurgen Smith, explains that the
commercial rationale for such a servitude was the fact that Quest had
spent
a significant amount of money in placing its branding material
and pumps on site and that the registration of a servitude would
ensure that its right to supply fuel to the site was secured for a
sufficiently lengthy period of time to justify its capital
expenditure. Whether such an arrangement is truly in the nature of a
servitude is something I shall deal with later.
[6]
Smith goes on to explain the position
further.
“
[19] To
provide for the aforegoing, it is the practice of the Applicant to
reach an agreement with the relevant property owner for
the
registration of what is termed a product Servitude (sic) in terms
whereof the Applicant’s exclusive right to supply fuel
to the
premises concerned, irrespective of who the actual retailer is, is
secured and registered over the property for an extended
period.
Unless the Applicant has some interest in the property through for
example a head lease, and can sublease to a retailer,
the only way
that the Applicant can secure its interests against the possible
change in retailer at the behest of the owner for
whatever reason, is
to conclude a Servitude (sic) agreement with the owner in terms
whereof the ongoing fuel supply to the premises
is secured for the
extended period.”
[7]
On 30 May 2016 the parties as described in
para 4 above (save for Gentle) met in George and negotiated the terms
of an agreement
and draft notarial deed of servitude to provide for
the so-called “
product servitude.
”
The material terms thereof (with Walters as “
the
Owner
” and Van Zyl’s as
“
the Customer
”)
were to the following effect.
“
9.
GRANT OF NOTARIAL DEED OF
SERVITUDE
9.1
The Owner acknowledges Quest’s right to exclusively supply the
Customer or its successor in title with Petroleum Products.
9.2
The Owner acknowledges that Quest is entitled to secure its exclusive
supply of the Petroleum Products and the Owner accordingly
agrees
that a Servitude be registered over the Immovable Property in favour
of Quest substantially in accordance with the draft
Notarial Deed of
Servitude attached hereto marked ‘Schedule 1’”.
[8]
The draft Notarial Deed of Servitude in
turn (with Walters as “
the
Grantor
” and Quest as “
the
Grantee”
) made provision for
registration as follows.
“
AND
WHEREAS the Grantor has undertaken in the Tripartite Agreement to
grant to the Grantee a personal Servitude over the Property
on the
terms hereinafter set forth;
NOW THEREFORE the appearer declared
that the Property shall be subject to the following Servitude:
Without the
prior consent in writing of the Grantee-
(a)
No automotive fuel or petroleum
products shall be stored, handled, used, sold, dealt in or
distributed on, through or from the Property
or any portion thereof
except those approved by the Grantee in writing…”
[9]
It seems that at the time Walters was
unhappy with Gentle’s management of the month-to-month lease on
behalf of Van Zyl’s
(the primary problem apparently being the
irregular payment of rental) and that she was looking at other
options. At the meeting
in George the parties accordingly discussed
the possibility that Walters might enter into a head lease with Quest
which would then
enable Quest to secure a suitable operator for the
retail operation. Walters undertook to revert to Quest on that
proposal.
[10]
There was a further meeting between the
parties (also
sans
Gentle)
at King’s offices in Oudtshoorn on 17 June 2016. Walters
indicated that, notwithstanding the terms of the Tripartite
Agreement
and the draft notarial servitude, she was reluctant to proceed with
the arrangement and wanted certain amendments to
be effected. Her
primary concern was that she felt that the proposed rental from the
property was too low and she also raised queries
in relation to the
possible upgrading of the site.
THE
4c AGREEMENT
[11]
Le
Roux reverted to Walters on 5 July 2016 with a proposal which was
linked to the literage of fuel to be sold at the property.
Anticipating a turnover of about 90 000 litres per month, le
Roux proposed that Quest would pay Walters R0,04/litre which
would
equate to approximately R3600 per month. The offer was conditional
upon the continued registration of the product servitude
and a lease
for the remainder of the period of Van Zyl’s lease - 10 years.
The proposal was acceptable in principle to Walters
and the parties
(including Gentle) then proceeded to further negotiate the details.
Ultimately, 2 agreements were concluded on
31 October 2016
[2]
:
·
A revised Tripartite Agreement; and
·
A memorandum of agreement between Quest and
Walters which expressly traversed the payment of the 04c/litre
referred to above and
which, to use the term employed by the parties,
became known as “
the 4c
Agreement
”.
[12]
The material terms of the 4c Agreement were
to the following effect.
[12.1] The
Agreement was suspended until Walters had signed all documents
necessary to enable Quest to register the product servitude
over the
property;
[12.2] Quest would
pay Walters the sum of 4c per litre of petroleum products purchased
per month by Gentle from Quest, with the
price to escalate at the
rate of 1c per litre every second year from the date of anniversary
of the agreement;
[12.3] The
Agreement would commence upon fulfilment of all suspensive conditions
and would endure for so long as Quest exclusively
supplied petroleum
products to the property;
REGISTRATION
OF THE SERVITUDE
[13]
On 17 October 2016, and at the time that
she signed each of the aforementioned agreements, Walters signed a
special power of attorney
authorizing le Roux to register the product
servitude over the property. Le Roux, in turn, signed the requisite
documentation for
the registration of the servitude before a notary
public in Port Elizabeth on 21 October 2016 and the latter procured
the registration
thereof in the Deeds Office on 7 February 2017
against the property which was termed the “
servient
tenement
.”
[14]
The material terms recorded in the
registered servitude were as follows.
[14.1] Walters was
the registered owner of the property;
[14.2] Walters (
qua
grantor) had undertaken in the Tripartite Agreement to grant Quest
(
qua
grantee)
a personal servitude over only that portion of the property where the
filling station business was conducted and the underground
fuel
storage equipment was located;
[14.3] The property
would be subject to a servitude in the following terms:
“
no
automotive fuel or petroleum product shall be stored, handled, used,
sold, dealt in or distributed on, through or from the portion
of the
immovable property where the fuel filling station business is
conducted and the underground fuel storage equipment is located
except those approved by the Grantee in writing, it being agreed that
the Servitude does not extend to other businesses of any
movable
property which do not form part of the fuel filling station
business.”
[14.4] The
servitude would endure for a period of 10 years calculated from the
date of registration thereof and would be for the
benefit of, and
would be enforceable by, Quest (or its cessionaries or assigns) and
no application for alteration, suspension or
removal of the servitude
could be made without the prior written consent of Quest.
[14.5]
Notwithstanding that Quest might become obliged by a separate
agreement to consent to the cancellation of the servitude,
it would
remain enforceable until the cancellation thereof;
[14.6] At the
instance of Quest, the servitude was to be registered against the
title deed under which Walters held the title in
the servient
tenement.
It
is common cause that, upon the registration of the servitude, all of
the suspensive conditions of both the Tripartite and 4c
Agreements
were fulfilled.
TERMINATION
OF VAN ZYL’S TENANCY
[15]
On 9 December 2016 there was a meeting at
Mossel Bay between Walters, le Roux and 2 representatives of Quest’s
agent in the
Western Cape, Messer’s Morne and Christie Coetzee.
At that meeting Walters said that she was unhappy with the way that
Gentle
was running Van Zyl’s business and indicated that she
was looking for a replacement tenant, possibly even Quest. Le Roux
responded positively on 12 December 2016 and on 11 January 2017
forwarded to Walters the draft of a proposed head lease that Quest
was willing to conclude with her.
[16]
At a further meeting on 9 February 2017,
Walters informed le Roux and Christie Coetzee that she intended
cancelling the lease with
Van Zyl’s and that she and her
husband would take over the running of the fuel station business
themselves: It appears from
the answering affidavit that Van Zyl’s
lease was terminated with effect from 31 March 2017.
[17]
Thereafter, on 2 March 2017, King’s
office sent le Roux an e-mail in which it was claimed that Walters
was reasonably entitled
to payment under the 4c Agreement with effect
from 1 November 2016. Quest was asked to furnish details of the
volumes of fuel delivered
at the property from that date to enable
Walters to calculate what was due to her under that agreement. Quest
was asked to comply
with Walters’ request within 7 days and to
immediately pay what was due to her. Quest was further advised in
terms that if
it did not adhere to Walters’ request she
reserved her right to cancel the 4c Agreement.
[18]
Le Roux replied on 8 March 2017, saying
that as far as Quest was concerned the suspensive conditions under
the 4c Agreement had
only been fulfilled on 19 December 2016 and that
that date constituted the date for calculation of the amount due. He
further informed
Walters that Quest was in the process of calculating
the volumes supplied to the filling station and undertook that these
would
be supplied to Walters the following day to enable her to
submit an invoice to Quest for payment under the 4c Agreement.
[19]
It appears that Quest did not honour le
Roux’s undertaking of 8 March 2017 to supply the figures the
following day. Accordingly,
at 10h33 on 23 March 2017, King e-mailed
le Roux informing Quest that it had not supplied the volumes required
for Walters to compile
an invoice of what was allegedly due to her.
Quest was informed that in the circumstances Walters had elected to
cancel all existing
agreements with it. King requested that, in the
event that Quest had not yet registered the notarial servitude, this
be put on
hold, and if it had been registered, that Quest consent to
the cancellation of the servitude.
[20]
At
10h52 on 23 March 2017 le Roux’s personal assistant, Melandri
van Rooyen, e-mailed the figures directly through to Walters
and
copied King in on the mail
[3]
.
An invoice was requested of Walters. 5 minutes later le Roux (who was
clearly not in office – the e-mail is recorded as
having been
sent from his cell phone) informed King’s office that the
figures had been sent and asked that an invoice be
sent so that Quest
could pay what was due.
DEVELOPMENTS
SUBSEQUENT TO CANCELLATION
[21]
T
he papers do not
reflect any further correspondence between the parties until 4 May
2017 when Quest’s legal adviser, John
Finlaison, wrote to
Walters care of King’s offices. In the interim, however, it is
common cause that both of the Coetzee’s
attended at the
property during April 2017 in an attempt to procure Walters’
compliance with the Tripartite Agreement and
the servitude. She
refused to accede to their demands.
[22]
In the letter of 4 May 2017 Finlaison
informed Walters that Quest demanded that no petroleum products be
sold at the property other
than in terms of the servitude. She was
further informed that Quest would approach the High Court, if
necessary, to enforce the
rights accruing to it from the servitude in
the event that no written undertaking was furnished within five days
confirming such
compliance by her. Walters did not provide such an
undertaking and on 15 May 2017 King informed van Rooyen by e-mail
that Walters
had “
effectively
cancelled all agreements with Quest on 23 March 2017”
and
that she “
no longer consider[ed]
herself to be bound by any agreements with Quest”
,
promising to resist any legal action instituted against her. There is
no evidence of any further communication between the parties
until 11
September 2017 when this application was served on King’s
offices.
THE
RELIEF SOUGHT IN THE APPLICATION AND COUNTER APPLICATION
[23]
On 6 September 2017 Quest launched the
present application in which it seeks the following orders:
“
1. that
Marlene Walters (the First Respondent) is interdicted and prohibited
from allowing automotive fuel or petroleum product
to be stored,
handled, used, sold, dealt in or distributed on, through or from the
portion of the servient tenement (Erf 229, Piketberg,
in the Berg
River Local Municipality, Western Cape) where the fuel filling
station business is conducted and the underground fuel
storage
equipment is located, except where authorised by the Applicant in
writing;
2. costs of the
application on an attorney and client scale…”
The
notice of motion was drawn in the long form and provided that, in the
event that it was not opposed, the matter would be heard
in the
Motion Court on 3 October 2017.
[24]
The application was opposed by Walters who,
simultaneously with her answering affidavit which was filed on 24
October 2017, gave
notice of a “
counter-motion”
which was later amended (without
objection) shortly before the matter was heard by this court on 16
August 2018. The amended counter
application reads as follows.
“
1. that
the Court shall declare that it was a tacit term of the Tripartite
Agreement (annexure ‘D’ to the main application),
the
Memorandum of Agreement (annexure ‘JS 16, to the main
application)
[4]
,
and of the servitude (annexure ‘JS 18’ to the main
application) that in the event that any one of the agreements is
to
be void and unenforceable
alternatively
is to be lawfully cancelled or otherwise lawfully terminated, the
other agreements suffer the same fate and in any of (sic) such
events
occurring, the servitude will be of no force of (sic) effect anymore
and will be cancelled.
2. that the
Court shall declare that the Tripartite Agreement…, the
Memorandum of Agreement… and the servitude…
are void
and unenforceable
alternatively
that the agreements have been lawfully cancelled
alternatively
lawfully terminated;
3.
Alternatively
to paragraphs 1 and 2 above,
that
the Court shall declare that notarial deed of servitude no
SK402/2017S dated 21 October 2016 (annexure ‘JS 18’
to
the founding affidavit) registered against title deed no 14281/2014
in terms of which first respondent hold (sic) erf 229 Piketberg
in
the Berg River Local Municipality, Western Cape, has permanently lost
its utility and has been extinguished and is cancelled.
4. that notarial
deed of servitude no SK 402/2017S dated 21 October 2016…. be
cancelled;
5. that the
applicant be directed to give effect to the order in paragraphs 3 and
4 above to (sic) sign on demand of first respondent’s
attorneys
all documents required to have the registration of the said servitude
appearing in the deed of transfer of Erf 229 Piketberg
cancelled and
deleted, failing which the Sheriff for the district of Piketberg be
authorised and ordered on behalf of the applicant
to sign all
documents required to have the said servitude cancelled and deleted
from the deed of transfer in terms of which I (sic)
hold of (sic) erf
229 Piketberg;
6. that the
applicant be ordered to pay the costs of or incidental to the
cancellation and deletion of the said servitude from the
deed of
transfer of erf 229, Piketberg;
7. that the
applicant be ordered to pay the costs of the counter-application on
the scale of (sic) attorney and client…”
THE
CLAIM FOR ENFORCEMENT OF THE SERVITUDE
[25]
In the founding affidavit, Smith, after
setting out the factual background (little of which is in dispute)
makes the following assertions
in relation to Quest’s rights.
It bears mention at the outset, however, that Quest does not take
issue with Walters’
cancellation of the 4c Agreement which must
therefore be taken to have been lawfully terminated.
“
55. In
all the circumstances it is submitted that through the Deed of
Servitude and its registration [Quest] acquired a personal
right
against [Walters] in terms whereof [Quest] had to consent in writing
to any fuel or petroleum product to be stored, handled,
used, sold,
dealt in or distributed on, through or from the fuel filling station
and which right would endure for a period of 10
years from date of
registration.
56. Effectively
therefore, and through the Servitude, [Quest] secured the right to
exclusively supply whoever operated the fuel
filling station on the
premises with all petroleum products for a 10 year period…
68. I deny that
[Walters] had any grounds to cancel the Servitude, or that the
purported unlawful cancellation in fact, constituted
a cancellation
of the Servitude. The purported cancellation of the Memorandum of
Agreement did not result in the cancellation of
the Servitude which
was valid for a period of 10 years. I am advised that the Servitude
Agreement had its own provisions concerning
termination and that none
of these applied in this case. I submit that the remedy of [Walters]
would have been to enforce specific
performance of the Memorandum of
Agreement and that no grounds existed for the cancellation of the
Servitude…
75. As appears
clearly from [Annexure] ‘JS 25’, [Walters] has expressly
stated that she does not consider herself bound
by the terms of any
agreement with [Quest]. This, I am advised, constitutes a repudiation
of the Servitude.
76. Further to
the aforegoing [Walters] has continued to conduct the fuel filling
station and has for this purpose been supplied
with fuel, stored fuel
and sold fuel on and from the Servient Tenement, not supplied by the
applicant. [Walters] has done so and
continues to do so without the
consent of [Quest] and in breach of the Servitude. [Quest] does not
know who has and/or is, supplying
such fuel to [Walters].
77. [Quest] does
not accept [Walters’] repudiation and accordingly through an
interdict seeks specific performance of the
provisions of the
Servitude…
79. [Walters]
conducts the business of a fuel service station at the Servient
Tenement without the express written consent of [Quest].
80. [Quest] has
a clear right to an interdict prohibiting [Walters] from using the
Servient Tenement to continue storing or selling
fuel from the fuel
filling station without the consent of [Quest]. Such use by [Walters]
is in breach of the terms of the Servitude.
81. I am advised
that as [Quest] is in reality seeking specific performance in the
negative form of the non-performance of a forbidden
act, [Quest] is
not required to meet the normal requirements for an interdict.”
THE
CLAIM FOR CANCELLATION OF THE SERVITUDE
[26]
In the answering affidavit (which also
serves as the affidavit in support of the counter application),
Walters raises a number of
legal points which are claimed to serve as
a defence to the purported enforcement by Quest of the servitude and
found a basis for
the cancellation thereof. Those allegations may be
summarized as follows.
[26.1] The original
supply agreement between Quest and Van Zyl’s, the Tripartite
Agreement and the 4c Agreement “
are
inextricably linked and inter-dependent of each other”
and
as such they “
collectively form
the
causa
of the servitude registered against [the] property…i.e. these
agreements constitute the ‘servitude agreement’.”
[26.2] It is
further alleged that it was a tacit term of the Tripartite Agreement,
the 4c Agreement and the servitude that in the
event that any one of
the agreements was to be void and unenforceable or lawfully cancelled
or terminated, the other agreements
would “
suffer
the same fate”
and were liable to
be cancelled and be of no force and effect.
[26.3] There is a
further attack on the constitutionality of these agreements which are
severally and jointly alleged to be “
so
prejudicial, unjust, unreasonable, onerous and oppressive”
in
relation to Walters and in favour of Quest that the enforcement
thereof will allegedly violate her rights of ownership in, and
use
of, her property and her right to freely trade as enshrined in the
Constitution, 1996 and the
Consumer Protection Act, 68 of 2008
. It is
alleged in this context that the purported enforcement of the
agreements and the servitude is against public policy and
that the
agreements are thus void
ab initio
thereby rendering them unenforceable.
[26.4] In
amplification of the constitutional argument it is said further that,
to the knowledge of Quest, neither Walters nor Van
Zyl’s were
the holders of valid retail licenses as prescribed by the
Petroleum
Products Act, 120 of 1977
and the regulations promulgated thereunder.
Attached to the affidavit are, firstly, a “
Site
Licence Certificate
” issued to
Van Zyl’s Garage (Pty) Ltd in 2007 and a “
Retail
Licence Certificate”
issued to
Beleggings also in 2007.
[26.5] It is
further alleged by Walters, on the assumption that the agreements are
not void
ab
initio
,
that the 4c Agreement has in any event terminated by virtue of the
occurrence of the defined event contained in cl 5 thereof.
[5]
Walters claims that since Quest stopped delivering petroleum products
to the fuel station at the end of March 2017, the 4c Agreement
has
terminated and the
causa
for
the servitude had fallen away.
[26.6] Finally, Walters claims that
both the Tripartite Agreement and the 4c Agreement were lawfully
cancelled by King in the letter
of 23 March 2017. She goes on to
point out that the cancellation of the latter (at least) was not in
dispute and that Quest had
not made any payments to her in terms of
the 4c Agreement.
THE
NATURE OF THE “
PRODUCT SERVITUDE
“
[27]
Mr. Nepgen, who appeared on behalf of
Quest, accepted in argument that the “
product
servitude”
was not a servitude
properly so called and as recognized in our law but rather embraced a
commercial turn of phrase utilized by
Quest in its business dealings
with its clients which sought to record the terms of the parties’
consensus in a publicly
registered document.
[28]
Servitudes
may be either praedial or personal.
[6]
The former are constituted in favour of the successive owners of
landed property while the latter are construed in favour of a
particular person: the object of a praedial servitude always being
immovable property, while a personal servitude is granted in
respect
of a particular person. Accordingly, a praedial servitude will
survive the transfer of ownership of the land in question
while a
personal servitude attaches to the person in whose favour it is
granted and is incapable of alienation.
[29]
Although
they may be classified as rural or urban, there is no longer a
numerous
clausus
of
praedial servitudes. They do, however, have the following
characteristics
[7]
.
·
There must be two properties (“
tenements
”)
belonging to different owners which are in immediate or close
proximity to each other;
·
The servient tenement must be capable of
serving the dominant tenement on a permanent basis – the
requirement of so-called
“
perpetual
cause
”;
·
The servient tenement must enhance the
utility of the dominant tenement; and
·
No positive obligation may be imposed on
the owner of the servient tenement.
[30]
The more common examples of rural praedial
servitudes are rights of way (roads, tracks and footpaths) granted to
others over the
land of the grantor, the right of drawing or leading
water to one’s property over one’s neighbour’s land
or a
servitude of pasturage where a neighbour’s cattle are
permitted to graze on adjacent land. Examples of an urban praedial
servitude, on the other hand, would be the right of a neighbour to
demand that a building on an adjacent property does not exceed
a
specified height, or be restricted so that it does not interfere with
natural light reaching the other land.
[31]
A
personal servitude, on the contrary, is a limited real right pursuant
whereto a burden is imposed over the servient tenement (or
a movable
object) for the benefit of a particular person.
[8]
Importantly, a personal servitude is constituted in respect of the
holder personally and not in his/her capacity as an owner of
land.
The most common examples of personal servitudes are usufructs and
rights of
usus
and
habitatio.
In
the case of the latter, by way of further example, the holder of the
personal servitude is entitled to live in a particular building
for
the duration of the servitude. In the case of a usufruct, the holder
of the servitude is entitled, for example, to the use
and control of
a herd of cattle and is entitled to all the fruits thereof but is
obliged to return the herd to its owner upon expiry
of the period of
the usufruct.
[32]
On the basis of the aforgoing analysis, it
is clear that the so-called “
product
servitude
” could never have
qualified as a personal servitude: while the notarial deed of
servitude purports to grant Quest a personal
servitude over the
property, it is manifestly not of such a nature. And, while there was
no attempt to construe Quest’s rights
arising from the notarial
deed as a praedial servitude, it must be observed that there is
similarly no room for such a categorization
in light of the fact that
there is only one tenement involved which is neither a servient nor a
dominant tenement.
[33]
In
the result, the “
product
servitude
”
is no more than a recordal of ordinary contractual rights and
obligations whose registration in the Deeds Office serves
as notice
to the public at large of the consensual arrangement between two
parties.
[9]
It has no special status in law and falls to be interpreted, not in
accordance with the law relating to servitudes but in terms
of the
customary approach to the interpretation of written instruments which
are the product of agreement.
LINKED
AGREEMENTS
[34]
In light of the arguments advanced on
behalf of the parties it is convenient to commence by determining the
inter-relationship between
the three contracts and the extent
thereof. Mr. Nepgen readily conceded that the Tripartite Agreement,
the 4c Agreement and the
product servitude were linked but insisted
that such linkage did not preclude the latter from standing on its
own and, importantly,
being enforced by Quest in the terms sought
herein. Mr. van der Merwe, for Walters, sought to persuade the court
otherwise and
argued that the three agreements were inextricably
linked to each other, so much so that the termination of any one of
them led
inevitably to the immediate termination of the others.
[35]
The
clue to the puzzle may be found in
Cash
Converters
[10]
upon
which both counsel relied in argument. In that matter, the Supreme
Court of Appeal was called upon to determine whether an
agreement of
sale of a business and a franchise agreement concluded by the same
parties on the same day were so interlinked that
the cancellation of
the latter necessarily implied the termination of the former. Lewis
AJA held that they were, while the majority
of the court agreed with
the main judgment by Navsa JA which went the other way.
[36]
The main judgment recorded that Cash
Converters was
“
[3]…a
South African company that sells franchise
rights to persons enabling them to trade
in second-hand goods under the name and style of ‘Cash
Converters’, using a
system and method developed by an
Australian company from which it acquired the right to act as the
South African franchisor. It
also sells to others (as in the present
case), the right to act as Cash Converter sub- franchisors.
[37]
Navsa
JA went on to observe
[11]
that in 1997 Cash Converters and Rosebud concluded two written
agreements that were the subject matter of the appeal. The first
was
a sale agreement in terms whereof
“
[4]…Cash
Converters… sold to Rosebud…, as a going concern,
its business in the Western Cape, the
operation of which was concerned with the
selling of franchise rights to persons
to carry on business in the Western Cape under
the Cash Converters banner as dealers in
second-hand goods.”
[38]
The second agreement concluded by the
parties was a franchise agreement (entitled the ‘
Submaster
franchisor agreement’
) pursuant
whereto Rosebud, in consideration for purchasing the business through
the franchise agreement, was granted franchise
rights and the use of
Cash Converters’ intellectual property in order to enable it to
conduct the business.
“
[5]…The
franchise agreement regulated the manner in which the business
acquired in terms of the sale agreement was to be
conducted. The
franchise agreement deals with matters such as the logos to be used,
the slogans to be employed in promoting the
business, marketing and
operational manuals etc. It bound Rosebud to observe strict secrecy
in relation to information or data
incidental to the Cash Converter
business methods and systems and to intellectual property connected
therewith. It also prescribed
how fees received from subfranchisees
were to be divided between Cash Converters (the master franchisor)
and Rosebud.”
[39]
When Rosebud failed to comply with a term
of the franchise agreement that required it to open a certain number
of stores per year,
Cash Converters gave it notice of termination of
the franchise agreement. Thereafter Cash Converters applied for an
order declaring
that the franchise agreement had been validly
cancelled and sought further relief aimed at protecting its
intellectual property
rights.
[40]
Rosebud opposed the application and filed a
counter application seeking repayment of that which it had already
paid towards the
purchase price. Rosebud’s case was that
cancellation of the franchise agreement (the basis wherefore was not
in dispute)
necessarily implied the end of the sale agreement and
that it was entitled to repayment of that which it had already paid
to Cash
Converters.
[41]
Navsa JA held that since the appeal turned
upon an interpretation of the two agreements a detailed examination
of the various clauses
therein was necessary. Having done so
exhaustively, the learned Judge of Appeal found as follows.
“
[23] I
accept…that the two agreements are linked. They were both
concluded on the same day and the sale agreement clearly
served as
the basis for the conclusion of the franchise agreement and vice
versa. However, the fact is that there are two agreements,
related
but distinct, each serving a specific purpose. The purchase price for
the business as set out in the sale agreement was
intended to ensure
that Cash Converters received value for the transfer of the
franchisor rights which would be given effect to
with the conclusion
of the franchise agreement. The sale agreement thus served as a
springboard for the franchise agreement. Once
the franchise agreement
was concluded the sale agreement had served its purpose. Save for
regulating the payment of the balance
of the purchase price the sale
agreement had no further part to play. The franchise agreement
regulated the future relationship
between the parties and determined
the manner in which the franchise business was to be conducted.
[24] Each
agreement records that the document embodying it is the entire
agreement between the parties and may not be varied except
in
writing. Nowhere in the franchise or sale agreement is it recorded
that in the event of the franchise agreement being cancelled
because
of a breach on the part of either party the sale agreement would
terminate. Each agreement has its own breach provisions
and there is
no cross-referencing. The franchise agreement has been cancelled in
terms of clause 11.2. There was no cancellation
of the sale agreement
either in terms of clause 17.8 thereof or at all and it is thus still
extant. In principle, apart from the
question of prescription, there
appears to be no obstacle to Cash Converters claiming the balance of
the purchase price. In these
circumstances there can be no talk of
restitution. I agree… that the ostensible purpose behind
two
agreements was to ensure that
the failure of the franchise agreement did not impact on the sale
agreement and that in the event
of a failure of the franchise
agreement the rights of the parties are to be determined solely by
reference to that agreement.”
[42]
In the minority judgment, Lewis AJA agreed
that the two agreements were not one indivisible transaction but went
on to find, on
the basis of a tacit or implied term, that the
cancellation of the franchise agreement necessarily implied the
termination of the
sale agreement. In his separate concurring
judgment, Brand JA agreed with the reasoning of Navsa JA and dealt
with Lewis AJA’s
judgment thus.
“
[61] I
agree with both Navsa JA and Lewis AJA that the two contracts cannot
be regarded as one indivisible transaction, as was contended
for by
Rosebud. There are two separate contracts and, although interlinked,
they represented two separate transactions. Once this
is accepted,
the notion that termination of the franchise agreement (‘the
franchise’) automatically leads to the termination
of the sale,
can only be founded, as is accepted by Lewis AJA, on a tacit or
implied term. This must be so. My difficulty lies
with Lewis AJA’s
conclusion that ‘there must surely be a tacit term that if the
business sold is taken back by Cash
Converters it would be a
‘rescission and restitution’ of the purchase price. With
regard to this conclusion the complications
are threefold. First, no
such tacit term is referred to in the papers and in argument before
this Court Rosebud’s counsel
expressly disavowed any reliance
on any such term. Secondly, the hypothesis of the tacit term relied
upon by Lewis AJA for conclusion
militates against the express
provision in clause 16.4 of the sale that ‘no agreed
cancellation of this agreement shall be
of any force and effect
unless in writing and signed by the parties…’ Thirdly, I
am satisfied that the tacit term
contended for will not meet the
requirements of the so-called bystander test regularly applied by
this court. According to this
test the inference of such a term would
only be justified if, at the time when the contract were entered
into, the bystander’s
question as to what would happen to the
purchase price upon termination of the franchise, would have elicited
the prompt and unanimous
response from both parties that, in that
event, the whole of the purchase price will be repaid. I have no
doubt that, whatever
Rosebud’s response might have been, that
would not have been the response of Cash Converters.”
[43]
There is further short judgment by Schutz
JA who concurred with Navsa and Brand JJA but for present purposes it
is not necessary
to refer thereto.
INTERPRETING
THE AGREEMENTS AND THE SERVITUDE
[44]
All
of the judgments in
Cash
Converters
proceed from the premise that the two agreements were required to be
interpreted in accordance with the applicable principles relevant
to
written instruments. There is a tendency these days, in matters of
contractual interpretation, to simply resort to
Endumeni
[12]
as
the alpha and the omega. That was the approach of counsel in this
matter. While the case assuredly provides a useful compendium
of the
relevant principles and the approach to be adopted in interpreting
written agreements, the authorities go back a century
or more.
[45]
In
Smith
[13]
Wessels CJ stated that the first rule of interpretation is to look to
the language of the instrument itself.
“
It is our
first duty to see what the parties intended by the language they
used.”
[46]
And
in
Worman
[14]
Greenberg
JA explained that point of departure further.
“
It must
be borne in mind that in an action on a contract, the rule of
interpretation is to ascertain, not what the parties’
intention
was, but what the language used in the contract means i.e. what the
intention was as expressed in the contract.”
[47]
The
relevance of examining the contextual setting is nothing new either.
So, for instance, in
Richter
[15]
Innes CJ remarked that -
“
Every
document should, of course, be read in the light of the circumstances
existing at the time, and evidence may rightly be given
of every
material fact which will place the Court as near as may be in the
situation of the parties to the instrument.”
[48]
In
List
[16]
Diemont JA referred to the importance of context.
“
It is, in
my view, an unrewarding and misleading exercise to seize on one word
in a document, determine its more usual ordinary
meaning, and then,
having done so, to seek to interpret the document in the light of the
meaning so ascribed to that word. Apart
from the fact that to decide
on the more usual ordinary meaning of the word may be a delicate
task…it is clear that the
context
i
n which the word is used is of
prime importance.”
(Emphasis
added)
[49]
The
relevance of a businesslike approach to the interpretation of
commercial documents was taken up by Conradie JA in
Lloyds
[17]
.
“
Sophisticated
semantic analysis is not the best way of arriving at an understanding
of what the parties meant to achieve by paragraph
1 of section IV. A
better way is to look at what, from the point of view of commercial
interest, they hoped to achieve by the incorporation
provision. It is
quite clear that without the incorporation of exclusions from the
hull policy, the war policy would have left
the appellants [with]
potential liabilities they could not have intended to assume and
which the respondent could not have thought
they were assuming.”
[50]
The
more recent inclination towards a so-called “
purposive
interpretation”
is consistent with the commercial-interest approach as the judgment
of FH Grosskopf JA in
Venter
[18]
(which followed
Public
Carriers
[19]
)
illustrates.
“
The
undertaking should be construed in its context, and with a view to
what the parties intended to achieve… Insofar as the
words
used in the undertaking are capable of bearing meanings different
meanings, a ‘purposive construction’ may be
applied.”
[51]
And,
finally, in
KPMG
[20]
Harms
DP settled the arcane debate which had gone on for years around the
admissibility of evidence to interpret a document, stressing
the
importance of a contextual approach.
“…
(T)o
the extent that evidence may be admissible to contextualise the
document (since ‘
context is
everything
’) to establish
its factual matrix or purpose or for purposes of identification, one
must use it as conservatively as possible…
The time has
arrived for us to accept that there is no merit in trying to
distinguish between ‘background circumstances’
and
‘surrounding circumstances’. The distinction is
artificial and, in addition, both terms are vague and confusing.
Consequently, everything tends to be admitted. The terms ‘context’
and ‘factual matrix’ ought to suffice…”
(Emphasis added)
[52]
Recently,
in
Daikin
Air Conditioning
[21]
the Supreme Court of Appeal referred to the so-called “
speaker
meaning
”
when interpreting written contracts that were “
created
after negotiations between a defined group who participate actively
in the process.”
The
court emphasized that the resultant product should then “
easily
fit into an objectively determined shared purpose of sharing
information.”
[53]
When all is said and done, the current
approach sanctioned by the Supreme Court of Appeal comes down to the
following.
“
..
the
interpretation of language, including statutory language, is a
unitary endeavour requiring the consideration of text, context
and
purpose.”
[22]
[54]
For present purposes that approach requires
the court to establish the intended inter-relationship between the 4c
Agreement, the
Tripartite Agreement and the terms of the product
servitude with reference to the chosen language of each document, the
contextual
setting (with particular regard for the relevant factual
matrix) and the commercial rationale which motivated the parties to
do
business with each other.
THE
RELEVANT TERMS OF THE 4c AGREEMENT, THE TRIPARTITE AGREEMENT AND THE
PRODUCT SERVITUDE
[55]
It is
convenient to commence by considering the Tripartite Agreement which
regulates the relationship between the fuel supplier
(Quest), the
erstwhile customer (Van Zyl’s) and the owner of the property
(Walters). The first observation of any significance
is that this
document does not contain a sole memorial clause, which purports to
render it the parties’ exclusive recordal
of their three way
relationship. There is therefore room, for example, for the
importation of terms orally discussed and agreed
upon, provided only
that these do not run counter to the written terms contained in the
agreement itself.
[23]
[56]
Unlike the situation in
Cash
Converters
there is nothing in the
Tripartite Agreement which precludes consideration of a tacit term.
And, importantly, terms of other agreements
may also be referred to
provided they do not violate the terms of the Tripartite Agreement,
and are consistent with the factual
matrix. This seems to be
confirmed in cl.4 of the Tripartite Agreement which records the
“
Reservation of Quest’s
Rights”
in the following terms.
“
This
Agreement shall not prejudice any right Quest has, or may acquire,
against [Walters], or in any way prejudice the continued
validity of
any of the agreements subsisting between [Walters] and Quest or any
deeds registered over the Immovable Property in
Quest’s favour,
except to the extent specifically otherwise herein provided.”
[57]
It is important, I think, to bear in mind
that the point of departure for the conclusion of the Tripartite
Agreement was that the
filling station business being supplied by
Quest was not being run by the owner of the property, but was
dependent on a lease concluded
between her and the customer, hence
the cross reference therein to the 2016 supply agreement between
Quest and Van Zyl’s,
and the specific incorporation of that
existing supply agreement into the Tripartite Agreement.
[58]
But what is critical about the Tripartite
Agreement is the fact that the customer is defined only as Van Zyl’s,
and not its
successor in title. That agreement clearly did not
contemplate a scenario where Walters was the customer. Indeed cl.8,
which is
entitled “
Termination of
Right of Customer to Occupy”
provides
that –
“
8.1
[Walters] shall be entitled to elect to terminate the rights of [Van
Zyl’s] to occupy the Premises, and the said the election
shall
not be withheld unreasonably; and
8.2 in the event that [Van Zyl’s]
is ejected from the Premises, [Walters] shall be entitled to replace
[Van Zyl’s] with
an operator of their [i.e.Walters’]
choice subject to Quest’s input regarding the suitability of
the proposed operator.
8.3 in such an event [Van Zyl’s]
undertakes to sign all documents acquired by the Department of Energy
to enable the new operator
to apply for its retail licence.”
The
clause tells the reader that there was consensus that Walters was at
liberty, in future, to lease the property to whomsoever
she wished
provided she sought Quest’s “
input
”
(significantly, it must be stressed, not its approval) before
concluding such lease.
[59]
Consideration of the Tripartite Agreement
in its entirety, and in the context of what the parties’ sought
to achieve commercially,
leads one to conclude that if Van Zyl’s
was to quit the premises Walters was at liberty to put in a new
tenant after obtaining
Quest’s input and that Quest was
thereafter entitled to demand that such new tenant become its
exclusive customer. Presumably
the obligation on Walters to obtain
Quest’s input was to put Quest in a position to approach the
new tenant and conclude
a new exclusive supply agreement.
[60]
As far as Quest’s entitlement to
demand that it be the exclusive supplier of fuel to Van Zyl’s
was concerned, one must
have regard to the provisions of cl.10 of the
Tripartite Agreement, under the rubric “
Grant
of Notarial Deed of Servitude”
which
reads as follows
.
“
10.1
[Walters] acknowledges Quest’s right to supply [Van Zyl’s]
or its successor in title with Petroleum Products.
10.2 [Walters]
acknowledges that Quest is entitled to secure its exclusive supply of
the Petroleum Products and [Walters] accordingly
agrees that a
servitude be registered over the portion of the Immovable Property
where the business is operated, in favour of Quest
substantially in
accordance with the draft notarial deed of servitude attached hereto
marked
Schedule 1
.”
[61]
The clear language of the Tripartite
Agreement, to my mind, means that the three parties were in agreement
that Quest had negotiated
the right to exclusively supply its
products to Van Zyl’s (or any tenant which replaced it at the
property) and that Van
Zyl’s (or any such replacement tenant)
was precluded from selling any other company’s fuel from the
premises. But,
in light of the provisions of cl.4 thereof, this
arrangement was always going to be subject to Walters’
entitlement to the
benefits of the 4c Agreement.
[62]
In this regard, the negotiation process
between the parties in mid-2016 gives one a good idea of what Walters
in particular was
seeking to achieve from a commercial perspective:
she would only participate in the exclusivity arrangement between
Quest and Van
Zyl’s if she was guaranteed additional income
through the 4c/litre arrangement, otherwise the deal was not
financially viable
for her.
[63]
The
question that immediately springs to mind is, if Quest failed to
honour its agreement and pay her 4c/litre, what was Walters
to do?
Clearly, she was not obliged to demand specific performance and was
entitled to make an election and exercise her right
to cancel.
[24]
If Walters then elected to cancel the 4c Agreement in circumstances
where she was entitled to do so (as was the case here), what
value
was the Tripartite Agreement to her thereafter? She would suffer
on-going financial loss month after month without being
able to
recoup that loss elsewhere. Certainly, she would have no recourse
against her tenant. That is manifestly not a commercially
sound
arrangement.
[64]
And, if the tenant defaulted in its
obligations to Walters and failed to pay the rent would she not be
entitled to cancel the lease
and evict? Certainly, the terms of cl.8
of the Tripartite Agreement make provision for Walters to exercise
her ordinary common
law contractual rights
qua
lessor – once again a
commercially sensible approach.
[65]
What would the status of the Tripartite
Agreement then be in the event that Walters lawfully cancelled the
lease with her tenant?
Undoubtedly, Quest then had no party to which
it was entitled or obliged to supply fuel and it would have to
negotiate the terms
of a fresh supply agreement with a different
tenant, after providing Walters with its “
input
”
as aforesaid. Further, it is logical to infer that a new tenant would
be required by Walters to conclude a new lease with
her. What would
Quest’s position then be if Walters was able to make up the
equivalent of 4c/litre through an increase in
rental payable by the
new tenant? Could it seek to resile from the 4c Agreement on the
basis of an implied or tacit term to that
effect?
[66]
Further, would Quest be obliged to continue
paying Walters 4c/litre if she decided, not to put in a new tenant
but rather to run
the filling station business herself? In those
circumstances she would no longer have the benefit of monthly rental
income but
she would enjoy the benefit of the net profit of the
business accruing to her. In such circumstances it could be argued
that the
commercial rationale for the 4c Agreement had fallen away.
[67]
It is not in issue that Quest was in
default of its obligations to Walters under the 4c Agreement, nor is
it disputed that, having
been duly put to terms under that agreement,
it failed to remedy its default thus affording Walters the right to
elect to terminate
the 4c Agreement. That termination took place in
accordance with the relevant terms of the 4c Agreement. The issue
however is whether,
in cancelling the 4c Agreement, Walters was also
permitted to put an end to the Tripartite Agreement. To do so
lawfully, there
would, at the very least, have to be a tacit or
implied term to that effect in the Tripartite Agreement.
IMPLIED
TERM
[68]
Prior to considering whether any implied
terms are to be imported into any of the agreements, it is necessary
to examine the status
of the product servitude and to ask the
question whether it is a stand-alone document or whether it derives
its validity elsewhere.
I have already found that the product
servitude is not a servitude properly so-called is no more than the
public recordal of a
contractual arrangement conferring a personal
right on Quest. The origin of that personal right is to be found in
cl.10 of the
Tripartite Agreement which is cited in para [60] above.
In addition there is a brief reference in cl 4.1.1 of the 4c
Agreement
to the servitude – essentially recording that one of
the suspensive conditions of that agreement was the signature by
Walters
of all documents necessary to enable Quest to register the
product servitude.
[69]
The registration of the product servitude
was effected by a notary public pursuant to a special power of
attorney signed by Walters
at Oudtshoorn on 17 October 2016 in which
she authorized le Roux to appear before a notary public and to
execute a notarial deed
of servitude in the form of an identified
annexure to that special power. That annexure contains the terms of
the contemplated
servitude which Walters was prepared to grant to
Quest and, as appears from para [8] above, further contains a cross
reference
to the Tripartite Agreement as the source of Quest’s
entitlement to demand registration of the servitude.
[70]
There is no other agreement concluded by
the parties which can be regarded as the source of the product
servitude, and there is
no basis in law for Quest’s entitlement
to the registration of the product servitude other than the
Tripartite Agreement.
In the circumstances I am in agreement with Mr.
van der Merwe’s submission that the notarial deed of servitude
per se
does
not constitute the servitude agreement and therefore cannot stand on
its own. As an external, public recordal of a personal
right granted
by Walters in favour of Quest, it is entirely accessorial to the
Tripartite Agreement and if the rights and obligations
under the
latter are extinguished it is rendered unenforceable. Simply put, if
the Tripartite Agreement falls away so does the
product servitude.
[71]
On
this construction of the product servitude, it follows, in my view,
that any tacit or implied term which is found to have been
imported
into the Tripartite Agreement must also be considered to apply to the
product servitude. The importation of a tacit term
was described as
follows by Nienaber JA in
Wilkins
[25]
following the seminal judgment of Corbett JA in
Alfred
Mc Alpine
[26]
.
“
A
tacit
term, one so self-evident as to go without saying, can be actual or
imputed. It is actual if both parties thought about a
matter which is
pertinent but did not bother to declare their assent. It is imputed
if they would have assented about such a matter
if only they had
thought about it - which they did not do because they overlooked a
present fact or failed to anticipate a future
one. Being unspoken, a
tacit term is invariably a matter of inference. It is an inference as
to what both parties must or would
have had in mind. The inference
must be a necessary one, after all, if several conceivable terms are
all equally plausible, none
of them can be said to be axiomatic. The
inference can be drawn from the express terms and from admissible
evidence of surrounding
circumstances. The
onus
to prove the material from which the inference is to be drawn rests
on the party seeking to rely on the tacit term. The practical
test
for determining what the parties would necessarily have agreed on the
issue in dispute is the celebrated bystander test. Since
one may
assume that the parties to a commercial contract are intent on
concluding a contract which functions efficiently, a term
will be
readily be imported into a contract if it is necessary to ensure its
business efficacy: conversely, it is unlikely that
the parties would
have been unanimous on both the need for the content of the term, not
expressed, when such a term is not necessary
to render the contract
fully functional.”
[72]
Applying that approach to the facts at hand
it is, in my considered view, axiomatic that if, during their
deliberations leading
up to the conclusion of the Tripartite
Agreement, Quest and Walters were asked by the notional innocent
bystander whether either
of them would be entitled to exercise the
right to cancel that agreement in the event that either of them had
lawfully cancelled
the 4c Agreement, the answer would have been a
resounding “yes”. That response is not only not
inconsistent with the
express terms of the Tripartite Agreement (nor
for that matter the 4c Agreement), it is a necessary response to
ensure the business
efficacy of their commercial arrangement for the
reasons already referred to.
[73]
In the result I am satisfied that Walters
has established the tacit term as contended for in prayer 1 of the
counter application
and that the Tripartite Agreement was lawfully
cancelled by King in the e-mail sent at 10h33 on 23 March 2017. In
the circumstances,
it follows that the product servitude was no
longer capable of enforcement by Quest either and was lawfully
cancelled in the same
e-mail.
CONCLUSIONS
[74]
In light of the findings that both the
Tripartite Agreement and the 4c Agreement have been lawfully
cancelled and that the product
servitude is no longer capable of
enforcement, it follows that Quest has not established the requisite
right entitling it to the
interdictory relief sought in prayer 1 of
its notice of motion. The application accordingly falls to be
dismissed with costs.
[75]
Walters, on the other hand, has been
successful in establishing the grounds for the relief sought in her
counter application which
should succeed on the basis set forth
hereunder. No purpose will be served by granting a declaration in
relation to the establishment
of a tacit term of the Tripartite
Agreement. The fact that Walters has proved the existence of such a
term and the fulfilment thereof
affords her the basis for the lawful
cancellation of the agreement. She is therefore entitled to a
declaratory order that the two
agreements were lawfully cancelled and
that the product servitude falls to be cancelled together with the
consequential relief
which flows from the cancellation of that
servitude.
[76]
As far as costs are concerned, each party
asked for an award of attorney – client costs in the respective
notice of motion
and counter application. However, neither counsel
pressed in argument for such an order. There is no basis for the
granting of
a punitive costs order in this matter and costs on the
party and party scale should follow the result.
ORDER
OF COURT
IN
THE RESULT THE FOLLOWING ORDERS ARE MADE:
A.
The applicant’s application is
dismissed with costs.
B.
The first respondent’s counter
application succeeds with costs.
C.
It is declared that the Tripartite
Agreement (Annexure “D” to the main application), the
Memorandum of Agreement (Annexure
“JS 16” to the main
application) and the Product Servitude (Annexure “JS 18”
to the main application) have
been lawfully cancelled.
D.
It is directed that the notarial deed of
servitude no SK 402/2017S dated 21 October 2016 (Annexure “JS
18” to the main
application) registered against title deed no
14281/2014 in terms of which the first respondent holds Erf 229
Piketberg, in the
Berg River Local Municipality, Western Cape, be
cancelled forthwith.
E.
The applicant is directed to give effect to
the order in D above and to sign on demand by the first respondent’s
attorneys
all documents required to have the registration of the said
servitude appearing in the deed of transfer of Erf 229 Piketberg
cancelled
and deleted, failing which the Sheriff for the District of
Piketberg is hereby authorised and ordered on behalf of the applicant
to sign all documents required to have the said servitude cancelled
and deleted from the deed of transfer in terms whereof the
first
respondent holds Erf 229 Piketberg.
F.
The applicant is ordered to pay the costs
of, or incidental to, the cancellation and deletion of the said
servitude from the deed
of transfer of Erf 229 Piketberg.
__________________
GAMBLE, J
[1]
Date of last signature.
[2]
Once again date of last signature.
[3]
The fuel volumes were recorded therein with effect from 20 December
2016.
[4]
i.e. The 4c Agreement
[5]
“
5. COMMENCEMENT AND
DURATION
This
Agreement shall commence on the effective date endure (sic) for as
long as Quest exclusively supplies Petroleum Products
to the
Premises.”
[6]
LAWSA, 2
nd
ed Vol 24 at p457 para 541
[7]
LAWSA
op cit
at
p461 para 546
[8]
LAWSA
op cit
p485
para 579
[9]
For the sake of convenience, however, the document will further be
referred to as “the Product Servitude”.
[10]
Cash Converters Southern
Africa (Pty) Ltd v Rosebud, Western Province Franchise (Pty) Ltd
2002 (5) SA 494 (SCA)
[11]
At [4]
[12]
Natal Joint Municipal
Pension Fund v Endumeni Municipality
2012 (4) SA 593 (SCA)
[13]
Union Government v Smith
1935 AD 232
at 241
[14]
Worman v Hughes
1948 (3) SA 495
(A) at 505
[15]
Richter v Bloemfontein Town
Council
1922 AD 57
at 69
[16]
List v Jungers
1979 (3) SA 106
(A) at 118
[17]
Lloyds
of London Underwriting Syndicates 969,48,1183 and 2183 v Skibya
Property Investments (Pty) Ltd
[2004] 1 All SA 386
(SCA) at 391
[18]
Venter
and Others v Credit Guarantee Insurance Corporation of Africa Ltd
and Another
[1996] ZASCA 50
;
1996 (3) SA 966
(A) at 973C-E
[19]
Public Carriers Association
and Others v Toll Road Concessionaries (Pty) Ltd and Others
1990 (1) SA 925
(A) at 942I-944A
[20]
KPMG Chartered Accountants
(SA) v Securefin Ltd and Another
2009 (4) SA 399
(SCA) at [39]
[21]
CSARS
v Daikin Air Conditioning
[2018] ZASCA 66
(25 May 2018) at [30] – [33] and in particular
footnotes 1 and 2.
[22]
Betterbridge (Pty) Ltd v
Masilo and Others
2015 (2)
SA 396
(GP) at [8]
[23]
Johnston v Leal
1980
(3) SA 927
(A) at 943D-945E
[24]
Frost v Leslie
1923 AD 276
at 279.
[25]
Wilkins NO v Voges
[1994] ZASCA 53
;
1994 (3) SA 130
(A) at 136I – 137C
[26]
Alfred Mc Alpine & Son
(Pty) ltd v Transvaal Provincial Administration
1974
(3) SA 506
(A) at 531E
et
seq.