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[2019] ZAGPPHC 158
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Seale and Others v Minister of Public Works and Others (62272/2017) [2019] ZAGPPHC 158 (10 May 2019)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE
NO: 62272/2017
10/5/2019
In
the matter between:
KINGSLEY
JACK WHITEAWAY SEALE
First
Applicant
ONTSPAN
BELEGGINGS (PTY)
LTD
Second
Applicant
HI
FRANK COMPONENTS (PTY)
LTD
Third
Applicant
SCHOEMANSVILLE
OEWERKLUB
Fourth
Applicant
and
MINISTER
OF PUBLIC
WORKS
First
Respondent
MINISTER
OF WATER AND
SANITAION
Second
Respondent
PREMIER
OF THE NORTH-WEST PROVINCE
Third
Respondent
TRANSVAAL
YACHT CLUB
Fourth
Respondent
REGISTRAR
OF DEEDS, PRETORIA
Fifth
Respondent
Coram:
Davis J
Contract-
Interpretation of- rights of access to Hartebeerspoort dam for
fishing and boating - personal or real right attaching
to land -
suspensive condition fulfilled or not - acquisitive prescription of
servitude - loss of through non-use.
JUDGMENT
DAVIS,J
[1]
This
is the culmination, by way of an opposed motion, of a saga spanning
more than a century. At its center, are the question of
interpretation of an agreement of sale and the question whether a
right of access for purposes of fishing and boating in and on
the
Hartebeespoort dam was meant to be a personal right of one Johan
Schoeman (son of a Boer War General and previous owner of
the land)
or a real right attached to the land itself. Additionally the issues
of acquisitive prescription of a servitude and the
loss through
non-use also feature.
[2]
The
parties
:
2.1
The
First Applicant is a certain Mr Seale. He is the owner of Erf 463,
which erf is situated in the township of Schoemansville and
which is
immediately adjacent to the foreshore of the Hartbeespoort Dam. Mr
Seale also owns another erf in Schoemansville and a
further three
erven in the nearby township of Meerhof. The townships are also
situated on the banks of the Hartbeespoort dam.
2.2
The
Second Applicant is a company of which Mr Seale is a director and
which is also the owner of an erf in Schoemansville.
2.3
The
Third Applicant is similarly a company of which Mr Seale is a
director and which owns a consolidated erf in Schoemansville.
2.4
The
fourth Applicant is the Schoemansville Oewerklub a voluntary
unincorporated association of persons established in 1982. 60%
of its
membership comprises of owners of erven in Schoemansville.
2.5
The
First, Second and Third Respondents are the Minister of Public Works,
the Minister of Water and Sanitation and the Premier of
the North
West Province (being the Province within which the Hartbeespoort Dam
is situated), all in their official capacities.
2.6
The
Fourth Respondent is the Transvaal Yacht Club (the "TYC"),
a voluntary unincorporated association which has been established
on
23 February 1923. It is the owner of consolidated erf 1113,
Schoemansville (previously erven 117, 118 and 119 Schoemansville)
which consolidated erf is situated immediately adjacent to the
foreshore of the Hartbeespoort Dam and to erf 463 belonging to Mr
Seale.
2.7
The
Fifth Respondent is the Registrar of Deeds.
[3]
As
with any sequence of events spanning such a long time, the chronology
of events contextualizes the issue. It can be culled in
the following
fashion from the parties' joint practice note and with reference to
an extensive volume of documents produced:
3.1
1899
- 1902 Anglo Boer War
3.2
1902
General Schoeman passed away shortly after the Anglo Boer War
3.3
1911
General Schoeman's land was inherited by his seven heirs, one of whom
was his son, Johan Schoeman ("Schoeman").
3.4
1914
The Union Government resolved to build the Hartbeespoort Reservoir in
terms of the then Irrigation Act. The Reservoir later
became what is
now known as the Hartbeespoort Dam. Portions of the land in question
are, probably as a result of the use of Dutch
in some of the old
title deeds, interchangeably referred to as "Hartebeestpoort",
"Hartbeestpoort" or "Hartbeespoort".
For sake of
convenience, I shall use the latter appellation, being the current
name of the dam in question.
3.5
1917
Schoeman acquired an additional portion of the South Eastern Portion
of the Farm Hartbeespoort in his own name.
3.6
25
January 1918 The Union Government purchased portions of the land that
formed part of the Northern Portion and the South Eastern
Portion of
the Farm Hartbeespoort. These were those inherited from General
Schoeman and that acquired by Schoeman himself. The
purchase from
Schoeman and his family members was in terms of a Memorandum of
Agreement in which Schoeman represented himself and
his family
members (the "1918 Agreement") referred to more fully
hereinlater.
3.7
November
1918 The purchased portions of the purchased land were transferred to
the Union Government in terms of the 1918 Agreement.
3.8
February
1922 Schoeman insists on the registration of a servitude as contained
in the 1918 Agreement.
3.9
July
1922 The township of Schoemansville was originally laid out by
Schoeman. Erf 463 thereof was identified by him as a recreational
ground (in line with its location and topography).
3.10
August
1922 Attorney and notary Mr Meintjies (on behalf of Schoeman)
forwarded a draft notarial Agreement for the Minister's approval.
3.11
2
September 1922 Director of Irrigation confirmed to the Secretary for
Lands that the terms embodied in the draft Notarial Agreement
are in
order.
3.12
27
September 1922 The Union Government and Schoeman entered into
Notarial Agreement (the "1922 Agreement").
3.13
3
October 1922 The 1922 Agreement was registered m the "Register
of Miscellaneous Deeds".
3.14
19
November 1922 Schoeman advertised Schoemansville erven with right of
access to be sold by public action on 14 December 1922.
3.15
21
November 1922 Schoeman had established his pleasure boating
enterprise from the shores directly adjoining Erf 463 for boating
on
the dam.
3.16
21
November 1922 Schoeman threatened legal action if the State does not
withdraw a threatened general prohibition on boating and
fishing,
ruining his returns on the pending sales of erven m Schemansville.
3.17
24
November 1922 The Union Government published a general notice
(Government Notice 047) prohibiting boating on the Hartbeespoort
Dam.
3.18
25
November 1922 Schoeman reasserted his rights - a letter appeared in
the local newspaper confirming that "boating as normal"
shall take place, despite Government Notice 047.
3.19
27
November 1922 Meintjes approached the Union Government regarding
pending urgent relief and damages claim with regards to the
general
prohibition.
3.20
29
November 1922 Meintjes is informed in writing that the Union
Government has acceded to his claims regarding Schoeman' s rights.
3.21
5
December 1922 Secretary for Justice addressed a letter to the
Director of Irrigation in which he confirmed that the State Law
Advisors had advised that the matter has been dealt with in
consultation with Mr Herdman, the Assistant Director of Irrigation,
and the stage that has now been reached that the general prohibition
has been withdrawn, the restriction being confined to a prescribed
danger area.
3.22
1923
The township of Schoemansville was formally established by Schoeman
on portion M (as it was known at the time and which previously
formed
part of the remainder of the Northern Portion of the farm
Hartbeespoort). A certain Clause 13 was inserted as a condition
to
the establishment of the township, which stated that "all
registered erf-holders shall be entitled, in common with the
applicant, to the right of access to the dam near the south-eastern
entrance of Hartbeespoort on the eastern bank of the river
for the
purpose of boating on the said reservoir and fishing therein, subject
to the conditions of Notarial Agreement dated 27
th
September, 1922". (Subsequently Schoeman established the Meerhof
township on the South-Eastern shore of the dam with similar
conditions contained in its establishment).
3.23
8
January 1925 The Secretary of Lands confirmed the terms of a
demarcation line with regard to access area k (a) including the
consent required from Schoeman to afford the TYC use of the foreshore
directly adjoining Erven 117 and 118, last mentioned which
Schoeman
were donating to the TYC.
3.24
14
July 1925 The TYC received transfer of erven 117 and 118 by way of
donation form Schoeman.
3.25
29
July 1925 Meintjes is informed by the Secretary of the Township Board
of certain arrangements regarding "Hendrick Schoeman"
Township including a landing place on the dam to be near the "public
gardens" (later recreational ground).
3.26
11
September 1925 The Governor-General of the Union Government approved
grants in terms of the Crown Land Disposal ordinance, 1903
(Transvaal).
3.27
10
October 1925 The Executive Council of the Union Government approved
the grants and reservations per Cabinet Minute 3152.
3.28
7
April 1926 Crown Grant 67/1926 was registered, described (at the
time) as Portion No 1 of portion L of the Northern Portion of
the
Freehold farm Hartbeespoort (portion 43). In terms of this grant the
right to the free use of the foreshore immediately in
front of it and
between it, and the Hartbeespoort Dam, was granted to Schoeman and
his successors in title together with ownership
of portion 43.
3.29
10
April 1925 The Surveyor General sent a letter to Secretary of Lands
confirming that the Grants in terms of the Cabinet Minute
are over
and above those rights acquired by Schoeman in favour of, inter alia,
Schoemansville erven in terms of Clause k of the
1918 Memorandum of
Agreement and that because the foreshore in front of Erf 463 has been
utilized as a landing stage Schoeman should
be made to restrict k(a)
to that area.
3.30
2
June 1926 The Secretary of Lands responded to the Surveyor General's
letter of 10 April 1926 stating that the purpose of Minute
3152
(demarcating k(a) in a certain manner with the consent of Schoeman
and affording ownership of part of the area and exclusive
free use of
that area's foreshore) was to place the matter on a "satisfactory
basis" and that provision was made in the
terms of the 1922
Agreement for the proper registration of the retained rights (clause
k(a), (b) and (c)) as set out in the Agreement
"at a later
stage".
3.31
6
August 1930 Department of Lands confirmed its commitment to uphold
its agreement with Schoeman and cancelled a lease for a water
plane
landing strip near the Swartspruit Valley.
3.32
1939
Schoeman sold his Hotel business adjoining erf 463, which includes
Portion 43, including the ferrying rights pertaining to
Portion 43,
as well as all boats that formed part of that business, by reference
to the Crown Grant as authorized in Cabinet Minute
3152 to one
Jacobs.
3.33
1958
Schoeman had a servitude registered (621/1958S) in favour of the
general public over Portion 71 (a portion of Portion 64) of
the farm
Hartbeespoort measuring about 72 morgen, which afforded the public
the right to fish, swim and boat in and on the water
which covers
this land.
3.34
1959
The TYC acquired Erf 119 which is adjacent to erven 117 and 118
previously donated to it by Schoeman.
3.35
6
November 1962 By Notarial Contract and with reference to clause k of
both the 1918 Agreement and the 1922 Agreement, Schoeman
appointed
his son, Johan Hendrik Tolstoi Schoeman and Lincoln Karel Troup
Schoeman, their heirs or assigns, as his assigns to enjoy
the rights
granted under clause k of the 1918 Sale Agreement and the 1922
Agreement.
3.36
Schoeman
passed away shortly hereafter.
3.37
Subsequent
to the aforegoing chronology, various organs of State exercised
control of over the Hartbeespoort Dam. One of the consequences
of
transfer of control lead to litigation involving the TYC and its
rights of access to boating on the Dam, all the way up to the
Supreme
Court of Appeal. The decision is reported as
Bullock
NO v Provincial Government, North West Province
2004
(5) SA 262
(SCA).
3.38
Chronologically,
to date of the application, a dispute raged from time to time
primarily between the Applicants and the TYC regarding
servitudes of
access to the "foreshore". The foreshore is the narrow
strip of land between the "buy-out line"
being a line three
feet above the "High Flood Level" and the actual water line
of the Dam from time to time. Insofar
as necessary only, reference
will be made to these disputes hereunder.
[4]
Relief
claimed
The
Applicants seek the following relief
4.1
An
order declaring that there has been fictional fulfilment of the
condition precedent in the 1922 Agreement and, if such a declaration
is made, an order directing the First Respondent, in his nominal
capacity as owner of the State-owned land, to co-operate towards
registration of praedial servitudes against the titles of the
relevant State-owned properties;
4.2
Alternatively,
the Applicants seek an order declaring that the State, as original
contracting party and as represented herein by
the First and Second
Respondents, is contractually bound to the terms of the 1918
Agreement and 1922 Agreement vis-a-vis the First
Applicant;
4.3
In
the alternative to relying on the 1918 and 1922 agreements (the
contractual claims) the Applicants seek an order, declaring that
as a
result of the owners of the adjacent land having exercised the
servitudal rights openly as if entitled to praedial servitudes
for a
continuous period of more than 30 years prior to 1971 and without
precarious consent, the servitudes vested by way of acquisitive
prescription against the State-owned land constituting the servient
tenements;
4.4
Other
extensive declaratory, consequential and interdictory relief
regarding the exercise of the servitudes mentioned above are
also
claimed. Some of them involved the Fifth Respondent who played no
role in those proceedings.
[5]
It
is clear, both from the chronology and the relief claimed, that the
Applicants traced the rights which they sought to assert,
from the
1918 Agreement and the 1922 Agreement. No reliance was placed on any
rights obtained from the Crown Grant referred to
in paragraph 3.26 -
3.29 and 3.32 above. The spur which jolted the Applicants into
launching their application, was the intention
of "the State"
to conclude new leases with third parties in respect of the
foreshore, in particular the TYC. It appeared
during argument (and
from the Heads of Argument submitted on behalf of the Applicants)
that there was no leeway for negotiation
or a sharing of these rights
and the Applicants claim exclusivity in respect of access to the
relevant parts of the foreshore.
For purposes of both the contractual
and the acquisition claims, the relevant agreements need to be
examined, which I shall do
hereunder.
[6]
The
1918 Agreement
As
aforementioned, on 25 January 1918, the Union Government entered into
an agreement of sale with the Schoemans to purchase portions
of their
land for purposes of constructing the Hartbeespoort dam. Clause 3(k)
of the agreement, also referred to in some documents
as "clause
k" or "Clause K", provided for the reservation of the
following rights in respect of the foreshore
area of the dam in
respect of boating and fishing (notably not irrigation):
"(k)
The said Johan Hendrik Schoeman, in his individual capacity or his
Assign shall retain the right of access to the said
Hartbeespoort
Reservoir on certain three places to be mutually agreed upon by the
parties to these presents
-
the
said places being situated approximately as follows: (g) near the
south eastern entrance to Hartbeespoort on the eastern bank
of the
River, (Q) near the site of the old dam on the Crocodile River built
by the now late General Schoeman, and(£) at a
suitable site in
the Zwartspruit Valley
-
for
the purpose of boating on the said reservoir and fishing therein
...
".
[7]
The
1922 Agreement
On
27 September 1922 the parties to the 1918 Agreement concluded a
Notarial Contract with each other which was subsequently registered
in the "Register of Miscellaneous Deeds". The relevant
portions thereof reads as follows:
"Whereas
it is desired to have the right so reserved in Clause K registered in
the Deeds Office, but as the government will
hold that area which
will form the submerged area of the said Hartbeespoort Reservoir
under a great many titles, some portions
of which have not yet been
acquired by the Government".
"Now
therefore, the parties hereto agree to register this Contract in the
Deeds Office in the Register known as the Register
for Diverse Acts,
whereby the rights granted to the Party of the other part, the said
Johan Hendrik Schoeman, in his individual
capacity, or his Assigns,
and more fully detailed in Clause
K
above set out in full, may
be recorded and registered in favour of the said Johan Hendrik
Schoeman, in his individual capacity,
or his Assigns, against the
said submerged area of the Hartbeespoort Reservoir subject to the
conditions that when and so soon
as the Government has acquired the
whole of the area which will form the submerged area of the
Hartbeespoort Reservoir, and has
taken out a Certificate of
Consolidated Title of such area, the parties hereto, their Successors
in Title or Assigns, bind themselves
to enter into a Contract whereby
the rights as detailed in said Clause
K
of the said Deed of
Sale, may be properly registered as servitude against the Titles of
the servient and dominant tenements respectively".
[8]
Interpretation
and evaluation
:
8.1
There
is no dispute that the 1922 Agreement made the registration of the
rights contained in the 1918 Agreement subject to a suspensive
condition. There is also no dispute about the fact that the
conditions have not yet been fulfilled, hence the Applicant's claim
for a declaration of fictional fulfillment thereof.
8.2
The
suspensive conditions provided that Schoeman would only be entitled
to the registration of the servitude granted by clause 3(k)
of the
1918 Agreement if and when the Government acquired all of the land
which would form the submerged area of the Dam and when
a Certificate
of Consolidated Title of the land so acquired has been taken out.
This was referred to by Schoeman in his purported
cession to his sons
referred to in paragraph 3.35 above and in the Applicants' papers as
being the "State's intention".
8.3
There
can be little doubt that it was an implied term of the 1922 Agreement
that the suspensive conditions had to be fulfilled within
a
reasonable time. There is no indication of what such a time period
would be. Even if one were to, for example, use the time period
of 30
years for acquisitive prescription as a yardstick of reasonableness
in the context of this case, then the period for fulfillment
had
expired somewhere in 1952. After such non fulfillment, the
agreement (and the right of enforcement of the servitude and
insistence on its registration) had lapsed.
8.4
The
Applicants' argument on fictional fulfillment of the suspensive
conditions prior to the lapsing of the agreement is tenuous.
They
bear the onus in this regard. See:
Resisto
Dairy (Pty) Ltd v Auto Protecting Insurance Co. Ltd
1963
(1) SA 632
(41) at 644H and
Lekup
Prop Co No 4 (Pty) Ltd v Wright
2012
(4) All SA 136
(SCA) at [12]. In the last mentioned judgment Cloete,
JA held that the party who wishes to rely on the doctrine of
fictional fulfillment
had to prove that the other party (in this
instance "the State" or "the Government") had by
deliberate commission
or omission prevented the condition from being
fulfilled with the intention of avoiding its obligations under the
agreement/s.
8.5
The
high-watermark of the Applicants' attempt at satisfaction of this
onus was the assertion that
"the
State, however, decided at an unknown stage not to acquire the
remaining properties and consolidate them".
8.6
On
behalf of the Applicants it was argued that the State had a "change
of intention" and, at least at date of the application,
no
longer had an intention to acquire all the remaining land (it
appeared to be satisfied with a servitude of submersion or water
storage in respect of the properties it had not yet acquired). This
"change" must have occurred sometime after 1964 or
1969 at
which time correspondence still indicated that acquisition was
foreseen "in the near future" and that no further
steps
could be taken before ("alvorens") the land had been
acquired. This alleged "change of intention" must
therefore
have occurred long after the agreement had already lapsed due to
non-fulfillment of the suspensive conditions on the
basis as set out
in paragraph 8.3 above. Even if the "reasonable period"
were to be extended to 1969, then it has surely
since lapsed. In this
construction, I gave the Applicants the most beneficial time line -
in their later stance on the papers,
they allege the "change"
only occurred as late as in 2016. Whenever such "change of
intention" may have occurred,
there is in any event no proof
that any such "change" had been with the deliberate attempt
at avoiding the contract.
8.7
Any
reliance on the doctrine of fictional fulfillment of the suspensive
conditions must therefore fail.
[9]
Personal
or praedial servitude?
Even
if the Applicants had been able to overcome the hurdle of non
fulfillment of the suspensive conditions, i.e that the right
of
registration of the servitude had not lapsed as a result thereof as
indicated above, a further hotly contested issue in the
matter was
whether the rights acquired by Schoeman were personal or praedial in
nature:
9.1
The
above question again turns on the interpretation of the 1918 and 1922
agreements.
9.2
The
current state of our law regarding the principles of such
interpretation are the following: in interpreting any documents, the
starting point is inevitably the express language used, being the
medium through which the parties have expressed their contractual
intentions. The process of interpretation does not stop at a
perceived literal meaning of the words, but they have to be
considered
in the light of all relevant and admissible context,
including the circumstances in which the documents came into being.
See:
Dexgroup
(Pty) Ltd v Trustco Group International (Pty) Ltd and Others
2013 (6)
SA 520
SCA; Natal Joint Municipal Pension Fund v Endumeni
Municipality
2012 (4) SA 593
(SCA) and Bothma-Batho Transport (Edms)
Bpk v S. Bothma & Seun Transport (Edms) Bpk
2014 (2) SA 494
(SCA).
9.3
A
servitude is, in essence, only a contract to achieve a particular
end, and should be interpreted in the same fashion. See
Royal
Hotel Riverside
(Pty)
Ltd
v Simon No and Another (
713/11)
[2012] ZASCA.
9.4
The
Applicants relied heavily on earlier cases which placed much weight
on evidence of the interpretation which the parties may
have, by
their conduct, placed on the agreement in question, while in
Bothma-Batho
emphasis was placed on the circumstances under which the contract
came into being as follows:
"the
correspondence exchanged between the parties prior to the conclusion
of the agreement was an important part of the admissable
factual
matrix".
9.5
What
we know of the prevailing circumstances at the time of the 1918
Agreement from the historical facts produced by the parties,
are the
following:
9.5.1
During
the late 1900's the late General Hendrik Jacobus Schoeman ("General
Schoeman") was the registered owner of (inter
alia), the
Northern Portion of the farm Hartbeespoort and three other portions
of the South Eastern portions of the same farm.
9.5.2
The
Crocodile river ran through a valley on General Schoeman's Farm. His
alleged dreams of creating a town or village on the eastern
bank of
the river and an adjacent lake were halted by the outbreak of what
became known as the Anglo Boer War in 1899. Shortly
after the
conclusion of the war (so the papers say although it might have been
earlier) General Schoeman passed away.
9.5.3
After
the passing of General Schoeman, the farms m question were inherited
by seven heirs, one of which was his son, Johan Schoeman
(the
"Schoeman" already referred to earlier in this judgment).
It took some 10 years for the properties to be transferred
to the
heirs. In addition Schoeman also acquired a separate adjoining
property from a neighbour.
9.5.4
In
1914 the Government of the Union of South Africa passed the
Hartbeespoort Irrigation Scheme (Crocodile River) Act, No 32 of 1914
in order to implement an irrigation scheme in the area. This included
the construction of a dam and the storage of water therein.
9.5.5
On
5 January 1918, as part of the implementation of the scheme, the
Union Government, bought certain portions of the farms Hartbeespoort
and Cyferfontein on the eastern bank of the Crocodile river. The area
purchased would only include the land actually to be submerged.
The
demarcation thereof would be by a line three feet above "High
Flood Level" of the then proposed dam (the "buy
out
line" referred to earlier).
9.5.6
As
consideration for the abovementioned land purchased from Schoeman and
his siblings, the Union Government paid £35 000.
Of this, £12
000 was paid up front, with the balance to be paid over a two year
period. The agreement recorded that Schoeman
would use the £12
000 to pay or buy out his siblings and, if this amount would not be
enough, he would use his own funds
to buy them out, leaving him the
sole remaining contracting party.
9.5.7
The
agreement provided that Schoeman in his "individual capacity"
would "retain" a right of access to the dam
via the
foreshore for purposes of boating and fishing on the dam.
9.6
The
Applicants painted a picture of a Government desperately short of
money after the First World War, being unable to pay, not
only the
full value of the property or even lesser agreed purchase price in
full, but "hurriedly" having to implement
an irrigation
scheme after a debilitating drought after having "bought into"
General Schoeman' s "dream". The
Respondents, quite
rightly, point out that there was no primary evidence of all this.
There are also other facts to be taken into
account:
9.6.1
The
Crocodile river is not the only source of water feeding the dam.
There are various other streams leading into the dam as well
as the
Magalies river.
9.6.2
There
were various other riparian owners adjacent to these other water
sources. There were also various other properties and landowners
to
the North-West, West and South-West of the dam. It was the
Government's intention to also acquire those properties in similar
fashion as those of Schoeman.
9.6.3
The
use of the word "retain" in the agreement with Schoeman
cannot have the wide meaning attributed to it by the Applicants,
namely a retention of the pre-existing rights belonging to the
"Schoeman properties" prior to the conceptualization and
implementation of the irrigation scheme: The owners of the properties
only had the common law rights of a riparian owner at the
time. Apart
from drawing water for irrigation or watering of animals (which are
not applicable to the current dispute) these would
only have included
access for purpose of boating and fishing on the Crocodile River (and
a small private dam situated therein).
Once the Hartbeespoort Dam was
established, its area would be vast and extended over various
properties, areas and rivers to which
Schoeman never had any
pre-existing rights.
9.6.4
There
was no evidence of a general recognition of similar rights of access
of any of the other owners of the riparian properties
referred to in
paragraph 9.6.2 above or a "retention" of their rights. The
rights afforded to Schoeman appeared to have
been an exception.
9.6.5
The
alleged "sacrifice" by Schoeman in having to sell parts of
the properties to the Government, relied on by the Applicants
as a
reason for his being granted rights of access would presumably be far
overshadowed by the profits made by him by the establishment
of the
towns of Schoemansville and Meerhof and the sale of numerous
residential and commercial erven adjacent to the new dam. The
Applicants were silent about this.
9.7
Very
little is known of the prevailing facts in existence at the time of
the conclusion of the 1922 Agreement. What we do know,
is that:
9.7.1
The
parties are in agreement that the 1922 Agreement did not create new
rights, those rights that the parties (and Schoeman) had,
had been
created in the 1918 Agreement. The 1922 Agreement was meant to make
provision for the registration thereof.
9.7.2
The
1922 Agreement was drafted by Schoeman' s attorney and notary,
Meintjies.
9.7.3
It
was preceeded by some correspondence one of which was on 26 November
1918, addressed by the conveyancing attorney to the Director
of
Irrigation. Herein it was stated that the rights under clause (k) of
the 1918 Agreement could not be introduced as a servitude
into the
transfers (of the portions of land sold by Schoeman to the
Government) but that it was necessary to give Schoeman "some
other form of title", such as a Crown Grant.
9.7.4
The
second letter of which there is a record of is one written by
Meintjies addressed to the Director of Irrigation on 7 February
1922.
Therein, Meintjies, on instruction of Schoeman and after reference to
the 1918 Agreement, stated the following:
"The
rights therein set out and in particular under clause K are not
personal rights but real rights capable of registration
against the
titles of the servient and dominant tenements".
The
letter then proceeded to deal with the issue of registration of
Schoeman's rights.
9.7.5
The
next piece of evidence of facts in existence at the time is a letter
in response, being that of 22 February 1922 from the then
Secretary
of Justice to the Director of Irrigation. This letter quotes a view
of the State Law Advisor, a certain Mr Nightingale
(to whom reference
was made in certain collateral documents) as follows:
"On
further consideration of Condition 3 (k) of the Memorandum of Sale
(it) seems to be something more than a mere contractual
right, but
rather in the nature of a personal servitude in favour of Mr Schoeman
during his lifetime. It is certainly not a praedial
servitude which
requires a dominant and servient tenement. From dicta in
Van
Vuuren v Registrar o(Deeds
1907 T. Sat para 295 and
Willoughbys'
Consolidated Company Ltd v Copthall Stores Ltd
1914 AD at para
28lthere is nothing in principle to prevent the registration of a
personal servitude against the title of a servient
tenement. It would
have been competent to have incorporated the condition in the Deed of
Transfer from Schoeman to the Government
and if the Registrar is now
prepared to register it against title for what its worth, the Deeds
office will present difficulties.
If at any time it becomes necessary
to interpret the condition, we are disposed to think that any benefit
conferred will not extent
beyond Mr. Schoeman lifetime".
9.7.6
A
handwritten annotation was added to the letter presumably by the
Secretary, directed to the Director as follows (on the same day)
"I
have seen Mr Nightingale who stated that Schoeman is entitled to have
this servitude, whatever its value may be, registered.
It is
understood however that the plan indicating the spots referred to in
the deed of sale has been lost".
9.8
At
the time when Meintjies thereafter drafted the 1922 Agreement, it
must have been for purposes of making provision for the registration
of whatever rights Schoeman had acquired in terms of the 1918
Agreement. Meintjies forwarded his draft of the 1922 Agreement to
the
Director of Irrigation who forwarded the draft together with a
Special Power of Attorney to the Secretary of Lands for signature
with a note:
"The
terms embodied are those entered into with Schoeman at the time of
purchase of the farm and the matter is in order".
The
Registration of the1922 Agreement itself thereafter took place in the
Deeds Office's Miscellaneous Deeds Register.
9.9
Despite
the apparent divergence of views on the nature of the rights of
Schoeman contained in the 1918 Agreement (and as expressed
by the
Director of Irrigation, the State law advisor and Schoeman and his
attorney) none of the parties before me at any stage
contended that
the 1918 agreement was void or unenforceable due to a lack of
consensus. They all, during the ensuing years and
certainly during
the litigation, contended for their respective interpretations to be
placed on the agreement.
9.10
Much
was made on behalf of the Applicants that "Schoeman did not part
with these rights and the Government did not pay for
them" but
it is clear from the documents that neither party placed any value on
these rights anyhow. They also appear to have
been of recreational
and not commercial value only.
9.11
Much
stock was also placed by the Applicants on the parties' conduct
subsequent to the 1922 Agreement. Each indication by various
officials regarding the registration of the rights against the
properties previously owned by Schoeman was pounced on. The inclusion
of the wordings of the 1918 and 1822 Agreements in the title deeds of
all the erven in the Schoemansville and Meerhof township
was also
seized upon as an alleged admission of those erven as all dominant
tenements. In my view these aspects are not conclusive.
In regard to
the Schoemansville and Meerhof title deeds, the inclusions were done
unilaterally at the behest of Schoeman. At best
they go no further
than the inclusion of a reference to the wording of the two
agreements. Such inclusion cannot, of itself, create
any rights,
praedial or otherwise. Apart from this, the conduct of the parties
and various successive organs of state or officials
thereof (evidence
of which were either hearsay or secondary) were neither unequivocal
nor uniform. They should therefore carry
far less weight than the
circumstances prevailing at the time as set out above.
9.12
If
the intention of the parties to the 1918 Agreement had been that the
remaining portions of the properties not purchased by the
State would
have been entitled (in perpetuity) to a servitude over the property
of the state (the foreshore), such right would
have been easy to
formulate. From the unique (and contrary) formulation of the right,
by, for example referring to Schoeman "individually",
it
must follow that something else than a praedial right in favour of
the properties had been intended. The argument by the Applicants
that
the use of the word "individually" was used to denote that
Schoeman's siblings would not have any rights (seeing
that Schoeman
was about to buy them out) does not assist the Applicants: if
Schoeman ("individually") was singled out
from other
persons,
it
means that he was the
only
person
(of
seven possible persons or landowners) who would be the holder of the
right in question as opposed to any landowner of a dominant
tenement
becoming the holder of rights.
9.13
The
words "or his Assign" are also not conclusive nor indicate
a praedial right. In my view, in the context of schoeman's
rights, it
simply means that he, or whoever he may authorize to do so, on his
behalf, may exercise his rights. The intentions of
the State at the
time and certainly before the registerability of whatever rights
Schoeman had, were merely confirmed in the 1922
Agreement.
9.14
Apart
from all these indications of the rights being personal, presumptions
of law must also be considered when interpreting a contract.
In the
present instance, that means considering the strong presumption in
favour of the least burdensome interpretation attached
to the grant
of a right over a property. A praedial servitude is perpetual in
nature and imposes a heavier burden on a servient
tenement that a
personal servitude. A servitude will therefore be presumed to be
personal rather than praedial in the event of
doubt or ambiguity. See
Kruger
v Joles Evendomme (Pty) Ltd
2009
(3) SA 5
(SCA) at [8] and the list of cases mentioned in footnote 16
of that judgment. The caveat mentioned in paragraph [9] of that
judgment
with reference to
Van
Rensburg & Andere v
Taute
en A
nd
ere
1975(1) SA 279 (A) is not applicable here as there was no unequivocal
and clear description of a praedial servitude. Such a
restrictive
interpretation will also accord with clause (i) of the 1918 agreement
which envisioned the removal of restrictions
(such as bonds or
servitudes) on those portions of the properties purchased by the
Government.
9.15
I
have earlier in paragraph 9.6.3 dealt with the use of the word
"retain" used in the 1918 agreement. To recap, owners
of
the remaining portions of the properties, as erstwhile riparian
properties to the Crocodile River, did not have any right to
the
subsequently created new dam (which extended, not only over the
western bank of the river, but well beyond and over the banks
of
other rivers and properties). Nothing of a praedial nature could be
"retained" by all these properties in respect
of the dam.
Rather, a personal right of access to that novel object, being the
dam / reservoir could be created and this is what
had been granted to
Schoeman. In similar vein, the insertion of references to dominant
and servient tenements by Mentjies, should
be interpreted to have
only been an expression of his view and would have been limited to
the registration of Schoeman's personal
rights against the titles of
the portions purchased from him by the Government (or, as suggested
by the current State respondents,
against those properties
constituting "the submerged area of the Hartbeespoort
Reservoir").
9.16
To
sum up:
9.16.1
The
1918 Agreement was the agreement in which whatever rights Schoeman
would have acquired in respect of access to the reservoir
(the
Hartbeespoort dam) had been recorded;
9.16.2
The
1922 Agreement was intended to deal with the registerability of those
rights;
9.16.3
Despite
the divergent views of the parties (and apparent lack of consensus)
on the nature of the rights contained in clause 3 (k)
of the 1918
agreement, no party contended or sought to have the agreement
declared null and void or unenforceable as a result thereof;
9.16.4
The
interpretation I place on the rights which Schoeman had acquired in
terms of the 1918 Agreement, is that they were personal
and not
praedial in nature and had therefore lapsed on his passing away
(irrespective of his attempts to cede or assign it to his
children or
any of the erven in the Schoemansville or Meerhof townships).
[10]
Prescription
10.1
In
an alternative to their contractual claims, the Applicants argued
that they have acquired praedial rights of access for purposes
of
boating and fishing over state properties by way of acquisitive
prescription. They alleged that these rights had been exercised
by
successive owners of land (including theirs) adjacent to the Dam
without force, openly, without precarious consent and adverse
to the
ownership of the land from the date that the reservoir
I
dam
had been completed for an uninterrupted period of more than 30 years
thereafter.
10.2
For
the Applicants to have acquired the alleged rights, acquisition must
have been completed by 28 June 1971. This is so because
the
State
Land Disposal Act 48 of 1961
prescribed that, after the expiry of a
period of 10 years after the date of commencement of the said act (on
28 June 1961), state
land would not be capable of being acquired by
prescription.
10.3
As
part of their case, the Applicants dealt with the period prior to the
Prescription Act, 18 of 1943 coming into operation, the
period of
operation of that act and the period since the coming into effect of
the Prescription Act, 68 of 1969 (effective from
1 December 1970).
10.4
I
need not deal with the facts alleged by Mr Seale in support of the
above issue as, even if the alleged rights had been acquired
prior to
1971, they have been extinguished by prescription thereafter because,
so the Respondents contended, the rights have not
been exercised for
an uninterrupted period of thirty years.
10.5
In
support of the above contention, the TYC pointed out that it had
started leasing (and occupying) the foreshore in front of Erf
463
from the State since 1969 in terms of various agreements from time to
time. It had even constructed a fence on the northern
side of the
foreshore, being the southern boundary of Erf 463. The continued
occupation by the TYC up to (at least) 31 July 2001
has previously
been accepted as a fact by our courts. See:
Bullock
No v
Provincial
Government,
North West Province,
2004 (5) SA 262
(SCA) at [3] and [4]. Nothing on the present papers
also detract from these facts.
10.6
In
terms of
section 7
of the
Prescription Act, 68 of 1969
, a servitude
shall be extinguished by prescription if it has not been exercised
for an uninterrupted period of 30 years. This is
clearly the case in
respect of the property of Mr Seale.
10.7
There
are insufficient facts indicating that any of the similar rights have
been acquired by acquisitive prescription by any of
the other
Applicants or, if they had, that those rights have not similarly been
extinguished. See:
Kruger
v Joles Eiendomme (Pty) Ltd & Another
2009 (3) SA 5
(SCA) at [12].
10.8
It
further clearly appears from the papers that Mr Seale's attack,
irrespective of which Applicant he represents, was primarily
directed
at his neighbour, the TYC, in similar fashion as he had done in
Seale
v Van Rooyen NO and Others, Provincial Government, North West
Province v Van Rooyen NO and Others
2008 (4) SA 43
(SCA).
10.9
I
conclude that the Applicants' alternative causes of action based on
acquisitive prescription must also fail.
[11]
Final
conclusion and costs
The
Applicants have approached the court in 2017, seeking to enforce
rights which have been granted to Schoeman in 1918 and 1922
and which
rights have, by all accounts lapsed. I find, on these papers no
cogent reason why costs should not follow the event.
[12]
Order
1.
The
Applicants' application is dismissed.
2.
The
Applicants are, jointly and severally, ordered to pay the
Respondents' costs including the costs of senior and junior counsel,
where so employed.
N
DAVIS
Judge
of the High Court
Gauteng
Division, Pretoria
Date
of Hearing: 11 and 12 February 2019
Judgment
delivered: 10 May 2019
APPEARANCES:
For
the Applicants:
Adv. EC
Labuschagne SC (together with
Adv
J L Gildenhuys and Adv W C
Meyer)
Attorney
for Applicants: Couzyn
Hertzog & Horak
Attorneys, Pretoria
For
the 1
st
and 2
nd
Respondents:
Adv. M C Erasmus SC
(together with Adv H.
Mpshe)
Attorney
for Respondent:
The State Attorney, Pretoria
For
the 4
th
Respondent:
Adv. W Trengove SC
(together with Adv K
Hofmeyr)
Attorney
for Respondent:
Bowman Gilfillan Inc., Johannesburg
c/o Boshoff Attorneys
Inc., Pretoria