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[2012] ZASCA 118
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Royal Hotel Riversdale (Pty) Ltd v Simon NO and Another (713/11) [2012] ZASCA 118 (18 September 2012)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 713/11
In the matter between:
ROYAL HOTEL RIVERSDAL
(PTY) LTD
....................................................
APPELLANT
and
NACHLEY SIMON NO
...................................................................
FIRST
RESPONDENT
BEATRIX HELENA SIMON
NO
................................................
SECOND
RESPONDENT
Neutral citation
:
Royal Hotel v Simon NO
(713/11)
[2012] ZASCA 118
(18 September
2012)
Coram:
HEHER,
CACHALIA, MALAN, TSHIQI AND PILLAY JJA
Heard:
28 August
2012
Delivered:
18
September 2012
Updated:
Summary:
Servitude
– praedial – interpretation – entitlement to park
on servient tenement – erection of building
on substantial
portion of servitude area – breach of entitlement.
___________________________________________________________________________________
ORDER
On appeal from:
Western Cape High Court (Cape Town)
(Dlodlo, Saldanha and Desai JJ sitting as court of first instance):
1. The appeal is
dismissed with costs.
2. The order of the court
a quo is amended to read as follows:
‘
(a)
The appeal is upheld with costs.
(b)
The order of the court of first instance is set aside and replaced
with an order in the following terms:
“
(i)
An order is granted in terms of para 2.1 of the notice of motion.
(ii)
Save as aforesaid the application is dismissed with costs.”’
_______________________________________________________________________
JUDGMENT
_____________________________________________________________________
HEHER JA (CACHALIA,
MALAN, TSHIQI AND PILLAY JJA concurring):
[1] This appeal concerns
the interpretation of a servitude. The appellant who was the
applicant at first instance succeeded in the
Western Cape High Court
before Veldhuizen J. However, on appeal by the present respondents to
the Full Court (Dlodlo J, Saldanha
and Desai JJ concurring) the order
was set aside and replaced by one dismissing the application with
costs. The appellant was thereafter
granted special leave to appeal
to this Court.
[2] In September 2003 the
respondents, the trustees for the time being of the Simon Family
Trust, were the registered owners of
erf 5372, Riversdale. On 26
September 2003 they sold the northern portion of that property, in
extent 9 763 square metres, to the
appellant. The property sold
became erf 6728 on transfer on 3 December 2003. That property and the
remaining extent of Erf 5372
were referred to in the papers as
Portions A and B respectively and it will be convenient to adopt this
nomenclature. Portion B
remained the property of the respondents.
[3] The common boundary
between the portions runs west to east. Along the western boundary
lies the N2 national road to Mossel Bay.
Before transfer, access to
the undivided property was gained from a road along the northern
boundary (which remains the case in
relation to Portion A). That road
met the N2 at the north west corner of the property. It was and is
the access point for both
portions from the national road.
[4] At all material times
there has been a building on the land lying in a north-south
direction across what is now the common boundary
in a central
location. At the time of the sale it was let by the respondents to
two tenants, Ball Trading and Die Rooi Aalwyn Padstal,
and, it would
seem, the respondents themselves carried on business in the southern
section.
[5] The subject-matter of
the deed of sale consisted not only of Portion A but also the letting
business of the seller and the two
leases. Of special relevance to
the appeal, the deed also created praedial servitudes in favour of
Portion B. The relevant terms
of the contractual clauses were these:
1. The description of the
property sold (‘Die Eiendom’) was qualified as follows:
‘
Met
voorbehoud ten gunste van die Restant van Erf 5372 Riversdal
(GEDEELTE B op die Sketsplan hierby aangeheg, hierna genoem Gedeelte
B) oor die Eiendom van:
1.3.1
‘n Serwituutgebied voorgestel deur die figuur ABSDSKJA op die
Sketsplan hierby aangeheg, die serwituut voorwaardes waarvan
in
klousule 13.1 hieronder meer breedvoerig uiteengesit word.’
(The second servitude, a
road over portion A, is not relevant to these proceedings.)
2. Clause 13 (‘SPESIALE
VOORWAARDES’):
‘
13.1
Die hiernavolgende voorwaardes sal geld met betrekking tot die
serwituutgebied waarna verwys word in klousule 1.3.1 hierbo:
13.1.1
Die Eienaar van die Eiendom sal geen obstruksie plaas in die gebied
van die bestaande sementbaan nie, wat in die weg van
voertuigverkeer
na Gedeelte B mag staan, ook vir swaar verkeer indien ‘n
vulstasie moontlik in die toekoms op Gedeelte B
opgerig mag word.
13.1.2
Die parkeerarea aan die voorkant van die bestaande gebou op die
Eiendom sal gereserveer wees vir kliënte van die besighede
in
die gebou.
13.1.3
Vragmotors en busse sal, soos dit tans die gebruik is, steeds
geregtig wees om op die bestaande gruis area naaste aan die
N2-Nasionale Pad te parkeer.’
[6] Although the
servitude was executed simultaneously with the registration of
transfer it became common cause that the terms of
its registration
did not accord with the terms embodied in the deed of sale.
[7] At the beginning of
2007 the appellant investigated the possibility of erecting a further
free-standing building within the
servitude area on that portion of
Portion A which is referred to in clause 13.1.3 as the ‘gruis
area’ (the gravel area).
The proposed structure would cover
some twenty per cent of that area and be located in the north-western
quadrant of Portion A
near the service road. It is clear from the
sketch plan annexed to the replying affidavit that it will not
obtrude on to the areas
described in clauses 13.1.1 and 13.1.2,
respectively and will not obstruct access to either or to Portion B.
[8] The appellant
instructed its attorney to discuss with the first respondent the
differences between the description of the servitude
in the deed of
sale and in the title deed of Portion A, and also its proposed
erection of the building within the servitude area.
The report that
it subsequently received was that the respondents had no interest in
any such discussion.
[9] In December 2007 the
appellant applied to the High Court for an order in the following
terms:
‘
1.
Wat verklaar dat die Applikant geregtig is om die gebou met die
posisie en spesifikasies soos beoog in Aanhangsel “E”
by
die funderende eedsverklaring aangeheg binne die gebied ABCDSKJA soos
aangedui op Aanhangsel “E” en die sketsplan
tot
Aanhangsel “C” by die funderende eedsverklaring aangeheg
op te rig aangesien dit geen inbreuk maak op enige serwituutregte
van
die Respondente nie.
2.
Alternatiewelik, en slegs indien die Agbare Hof nie bereid is om die
bevel in 1 toe te staan nie, ‘n bevel:
2.1
Wat gelas dat die serwituut soos omskryf in voorwaarde D(a) op bladsy
3 van Transportakte T113383/2003 geliasseer in die Kantoor
van die
Registrateur van Aktes (Aanhangsel “A” tot die Applikant
se Funderende Eedsverklaring), geskrap word en vervang
word met die
serwituut soos bewoord in Klousule 1.3.1 gelees met Klousule 13 van
die koopooreenkoms tussen die Applikant en die
Eerste en Tweede
Respondente gesluit soos per Aanhangsel “C” tot die
Funderende Eedsverklaring;
2.2
Wat verklaar dat die Applikant geregtig is om die gebou met die
posisie en spesifikasies soos beoog in Aanhangsel “E”
by
die funderende eedsverklaring aangeheg binne die gebied ABCDSKJA soos
aangedui op Aanhangsel “E1” en die sketsplan
tot
Aanhangsel “C” by die funderende eedsverklaring aangeheg
op te rig aangesien dit geen inbreuk maak op enige serwituutregte
van
die Respondente nie.’
[10] After service of the
application the respondents consented to an order in terms of para
2.1 of the notice of motion. Despite
this, neither of the courts
below made such an order or provided reasons for that failure. I
propose to correct that shortcoming
in the order in this appeal.
[11] The application
nevertheless proceeded in respect of para 1 of the notice. Both
parties elected to argue on the papers, eschewing
the opportunity to
resolve by evidence conflicts arising from the affidavits. This
attitude must, in accordance with the practice
in motion proceedings,
redound to the benefit of the present respondents. The relief claimed
depended upon the applicant bringing
its proposed erection of the
building within the permitted scope of the servitude without which it
could not discharge the onus
of proof.
[12] The task of the
court is to determine the intention of the parties to the agreement
that created the servitude. In so far as
the language used by them is
clear and unambiguous effect must be given to it. But even clear
expression can benefit from an appreciation
of its context in the
written agreement against the background of circumstances relevant to
its conclusion provided that the plain
meaning is not thereby
contradicted or varied.
[13] What
principles must one apply in interpreting the servitude, recognising
that it is, in essence, only a contract to achieve
a particular end?
It is unnecessary to rehash all the conflicting approaches. They are
adequately debated by my colleague Wallis
JA in his article,
What’s
in a word? Interpretation through the eyes of ordinary readers
127 SALJ (2010) 673, and do not give rise to controversy
in this appeal.
[14] It is sufficient for
present purposes to examine the combined effect of the relevant facts
present to the minds of the parties
at the time of contracting, and
the language adopted by them in the context of their contract as a
whole. These are the signposts
to their common intention and, as will
become apparent, they point to a single destination.
The background
circumstances
[15] Although the context
may at first glance appear to be two parties on an equal footing
endeavouring to regulate their future
relationship as owners of
adjoining properties who will both carry on commercial enterprises on
those properties, that summary
provides an inadequate picture. The
heart of the matter was the viability of Portion B as a separate
entity. To survive and prosper,
the evidence shows, Portion B
required user friendly access to the highway and adequate parking for
visiting business traffic including
buses and lorries. The
negotiation took place in the context of an existing situation in
which such vehicles parked freely and
indiscriminately on the gravel
area on what was to become Portion A. This benefited businesses
carried on in the building on both
sides of the proposed division of
the property. There is no suggestion in the papers that at that time
the appellant contemplated
a development of Portion A in any manner
inconsistent with the continuation of that practice. There is some
dispute as to its frequency,
but that is of little significance as it
is common cause that the parties envisaged a dynamic development of
Portion B.
[16] The evidence of
surrounding circumstances established, first, that the existing
practice was for buses and lorries visiting
the business now
conducted on Portion B to park anywhere on the gravel area and,
second, that the servitutal conditions were framed
at the instance of
the seller in the interest of the promotion and expansion of the
business to be carried on Portion B and that
the appellant was aware
of that intention.
The structure and
language employed by the parties
[17] Starting with the
written agreement it seems clear from clause 1.3.1 that the parties
contemplated only a single servitude
area. According to the ordinary
meaning it would be that area in respect of which the servient
tenement agreed to limit its rights
of ownership in favour of the
dominant tenement. In so far as clause 13.1 contains the conditions
of servitude it should, in the
absence of clear language to the
contrary, be interpreted so as to give effect to that meaning.
Approached in that way:
1. Clause 13.1.1 secures
unobstructed
access
by traffic including heavy vehicles, to
Portion B over the cement track (‘baan’), in the event of
the opening of a filling
station on Portion B in the future.
2. Clause 13.1.2 is
framed unequivocally as a limitation on the dominant tenement’s
use of the servitude area by reserving
the parking area in front of
the existing building for use by clients of the business in it.
3. Clause 13.1.3 entitles
lorries and buses to park on the gravel area nearest to the N2 ‘as
is presently the practice’.
[18] It is clause 13.1.3
upon which the dispute turns. The submission of appellant’s
counsel, which also finds a voice in
the founding affidavit, is that,
properly interpreted, as with clause 13.1.2, the entitlement is a
limitation on the breadth of
operation of the servitude in favour of
the servient tenement. I do not agree. There is an absence in clause
13.1.3 of the clear
language to be found in the preceding clause
which compels that conclusion. Without it the suggested restriction
is in conflict
with the ordinary meaning of clause 1.3.1 as
identified earlier. Moreover, the gravel area, which, as the sketch
shows, takes up
the greater part of the servitude area defined in
clause 1.3.1, only has meaningful content if clause 13.1.3 is
interpreted in
favour of the dominant tenant; absent that content
there is no identifiable servitutal use over that area, which makes
nonsense
of providing for a servitude over it at all. In law a
‘servitude’ which confers no permanent advantage present
or future
upon a supposed dominant tenement cannot be a praedial
servitude (
Voet 8.4.15
) and, in the present instance, would
provide no basis for a personal servitude either. Such a conclusion
flies in the face of the
manifest utility that the respondents
intended to derive from the agreement.
[19] Thus both the
background to the parties’ consensus and the proper
construction of the agreement conflict with the interpretation
which
the appellant seeks to attach to clause 13.1.3.
[20] The correct meaning
of that clause is that the dominant tenement is entitled to insist on
a right to have buses and lorries
visiting its premises park anywhere
on the gravel area. The entitlement does not confer an exclusive
right to park on the gravel
area in favour of such visitors but it is
such as to entitle the respondents to defend the right conferred on
Portion B against
a proposed development on the servitude area that
would detract from its reasonable use for the agreed purpose. That
such would
be the effect of the erection of a building that covers a
substantial proportion of the gravel area, as is proposed by the
appellant,
is beyond doubt. The court of first instance should
therefore have found that the appellant had fallen short of proving
that it
was entitled to the relief claimed in para 1 of the notice of
motion, as indeed the court a quo did.
[21] In the result the
following order is made:
1. The appeal is
dismissed with costs.
2. The order of the court
a quo is amended to read as follows:
‘
(a)
The appeal is upheld with costs.
(b)
The order of the court of first instance is set aside and replaced
with an order in the following terms:
“
(i)
An order is granted in terms of para 2.1 of the notice of motion.
(ii)
Save as aforesaid the application is dismissed with costs.”’
_________________
J A HEHER
JUDGE OF APPEAL
APPEARANCES
APPELLANT: N J Treurnicht
SC
W F Botha Attorney,
Stilbaai
Symington & De Kok,
Bloemfontein
RESPONDENTS: W Vos
M J Vermeulen Inc, c/o
Walkers Inc, Cape Town
Hill McHardy &
Herbst, Bloemfontein