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[2008] ZASCA 138
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Kruger v Joles Eiendom (Pty) Ltd and Another (400/07) [2008] ZASCA 138; 2009 (3) SA 5 (SCA) ; [2009] 1 All SA 553 (SCA) (27 November 2008)
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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 400/07
JOHAN
BLOEM KRUGER Appellant
and
JOLES
EIENDOM (PTY) LTD 1
st
Respondent
REGISTRAR
OF DEEDS (CAPE TOWN) 2
nd
Respondent
Neutral citation:
Kruger
v Joles Eiendom (Pty) Ltd
(400/07)
[2008]
ZASCA
138
(27 November
2008).
Coram:
MPATI P, MTHIYANE,
CLOETE, HEHER JJA
et
KGOMO AJ
Heard:
10
NOVEMBER 2008
Delivered:
27
NOVEMBER 2008
Summary:
Servitude-interpretation
where ambiguous.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from: High Court, Cape Town (Traverso DJP,
Griesel J and
Ndita J sitting as Full Court)
The following order is made:
1(a) The appeal succeeds, with costs.
(b) The order of the full court is set aside and the
following order substituted: 'The appeal is dismissed, with costs.'
2. The cross-appeal is dismissed, with costs.
______________________________________________________________
JUDGMENT
______________________________________________________________
CLOETE JA (MPATI P, MTHIYANE, HEHER JJA and KGOMO AJA
concurring):
[1] There is an appeal and a cross-appeal before the
court. It would be convenient to refer to the parties as they were at
first
instance. The plaintiff and the defendant own adjoining
properties in Dorp Street, Stellenbosch. The plaintiff made three
claims,
two of which remain relevant. First, the plaintiff claimed
that a servitude registered over part of his property in favour of
the
defendant's property had become extinguished by prescription.
Second, the plaintiff claimed that he had acquired part of the
defendant's
property by prescription. The trial court (Woodland AJ)
upheld both claims and the defendant appealed. The full court in Cape
Town
(Griesel J, Traverso DJP and Ndita J concurring) upheld the
appeal in respect of the first claim (extinction of the servitude)
but dismissed the appeal in respect of the second claim (acquisition
of part of the defendant's property). The parties have respectively
appealed and cross-appealed against these findings with the special
leave of this court.
[2] The judgment of the full court has been reported as
Joles Eiendom (Pty) Ltd v Kruger and Another
.
1
At the end of the judgment
2
there is a diagram to which it is convenient to refer. The
plaintiff's property is Erf 3765, on the left of the diagram. The
first
defendant's property is Erf 548, to the east. Dorp Street lies
to the south of both erven where points E and N appear. Between the
two erven there is a passage ,95 metres wide and 10,39 metres long
the middle of which extends along the common boundary from point
E to
point F. (Points G and M are directly opposite point F and point N is
directly opposite point E.) There is a servitude registered
in favour
of the plaintiff's property over that area of the defendant's
property between points EFMNE, and a servitude registered
in favour
of the defendant's property over the corresponding area of the
plaintiff's property to the west of the common boundary.
It is this
latter servitude that the plaintiff in the present appeal contends
became extinguished by prescription. The area of
the defendant's
property relevant to the defendant's cross-appeal, demarcated by
points GHJMFG, is contiguous with, and situated
to the north of, the
passage burdened with the servitudes. (The line GH represents part of
the eastern boundary of the plaintiff's
property.) It would be
convenient to refer to this area as 'the extended passage'. In 1966
the owner of the defendant's property,
a Mr Scheiffer, constructed a
wall 2,7 metres high which extended from a point about one metre to
the south of point M, to point
J (and thereafter to point K, to point
L and further north). Subsequently, between 1966 and 1968, the
plaintiff put in a door where
the passage opens on to Dorp Street.
[3] Of cardinal importance to the appeal is the proper
construction of the servitude in favour of the defendant's property.
It is
contained in a special condition in the defendant's title deed
which reads: 'The passage . . . shall be for the common use of' the
two properties in question. The relevant part of the special
condition in the plaintiff's title deed is in identical terms. The
servitudes originally provided access to the backyards of the two
properties. The trial court interpreted each servitude to be
one of
footpath.
3
The full court disagreed, holding that because the expression 'common
use' was not further described or defined in any way:
'[T]his means that the passage
may be used by both owners for any lawful purpose â having regard
to the nature and situation thereof,
namely a narrow passageway
between two adjoining commercial buildings in an urban setting â
and provided, of course, that the
servitude is exercised
civiliter
modo
. In addition to
the right of footpath (
iter
),
other permissible uses of the passage would include urban servitudes,
such as
ius
stillicidii avertendi
(the right to pass off one's rainwater onto the ground of another);
ius stillicidii
recipiendi
(the right
to receive the rainwater coming from another's land);
ius
cloacae
(the right to
have a drain lying on or coming out on the ground of another); and so
on.'
4
In the appeal before this court, the plaintiff
championed the interpretation given by the trial court, and the
defendant, that given
by the full court.
[4] Both parties sought to rely in argument before this
court on the use to which the passage had in fact been put as it
emerged
from the evidence of the witnesses who testified at the
trial. Where a servitude has been granted by agreement,
5
and where the agreement is ambiguous and evidence as to surrounding
circumstances which obtained at the date the contract was concluded
does not resolve the ambiguity,
6
evidence as to the interpretation the parties had by their conduct
put upon the grant will be admissible as an indication of their
common understanding of its meaning.
7
But here there was no evidence as to how the servitude in the present
matter came to be constituted â it may not have had its
origin in
contract, but have been imposed by the local authority; and
furthermore, none of the witnesses who testified as to how
the
servitude had in fact been used, could possibly have been the parties
to any agreement constituting it, nor could their evidence
have
related to the conduct of such parties.
[5] To my mind, the servitude means that the 'passage'
is 'for the common use of' the two properties in question as a
passage, ie
as a passageway, to pass from Dorp Street to the
properties. I am fortified in this view by the fact that the passage
is so narrow
that any other use does not readily suggest itself. It
is not necessary, however, to elaborate further as the servitude is,
at
best for the defendant, ambiguous, as its counsel readily
conceded. Evidence as to the conditions prevailing at the time the
servitude
was constituted would have been admissible to resolve the
ambiguity. The decision of this court in
Cliffside
Flats (Pty) Ltd v Bantry Rocks (Pty) Ltd
8
provides a good illustration of how this may be done. In 1941 the
appellant in that matter received transfer of land (Lots 6 and
7)
each subject to a condition that 'no more than two dwelling-houses
shall be erected on the above-described property'. It was
common
cause that the condition was a servitude in favour of Lot 3 (owned by
the respondent). Feetham JA found the condition ambiguous
in that it
could mean that only two dwelling-houses could be erected and nothing
more, or it could mean that as many structures
could be erected as
the property would permit save that of those structures, only two
could be dwelling-houses. The learned judge
said:
9
'It thus appears that the
condition which we have to consider originated in a deed of transfer
dated August, 1919, that it was imposed
in favour of a residential
property occupied by the transferor, and that the two properties
concerned were situate within a short
distance of, and within view
of, each other, in a residential area lying above the sea coast in a
neighbourhood which at the date
of the transfer was still only very
partially developed.
These facts appear to me to be
quite sufficient to justify the inference that the object of this
condition was to protect and preserve
the amenities of Lot 3 as a
residential property by barring any developments on Lots 6 and 7
which would be inconsistent with the
existing residential character
of the adjacent area, and might have the effect of diminishing such
amenities; and they thus afford
strong confirmation of the view that
the condition is to be read as having the meaning which examination
of its actual terms led
me to regard as the preferable choice between
the two alternative meanings of which I find it to be capable â
that is, that the
condition is to be read as meaning â "Nothing
more than two dwelling-houses shall be erected on the property".
. . .
I do not think it is open to any
doubt that the facts which I have taken into account, as established
by admissions and evidence,
are facts which can properly be taken
into account for the purpose of throwing light on the object and
interpretation of the condition.
I have held that the condition is
susceptible of two meanings, and these facts which relate to the
subject matter of the condition,
namely the two properties affected
by it (which may be called respectively the dominant and the servient
tenement), are relevant
for the purpose of determining which of the
two meanings should be given to it.'
[6] As support for the approach followed by him, Feetham
JA referred inter alia to the judgment of Gregorowski CJ (Esser and
Kock
JJ concurring) in
Kempenaars v Jonker,
Van der Berg and Havenga
10
where the learned Chief Justice, in dealing with the servitude of
grazing, said the following:
'It is clear that incidents
[sic: sc the incidence] and the extent of the servitude must depend
on the circumstances under which
it was created . . . I think . . .
that much must depend on the circumstances under which the servitude
was created, and on the
causa
et origo servitutis
.'
Feetham JA also referred to the decision in
Priestman
v Simonstown Licensing Board & Others
11
where Watermeyer J (Sutton J concurring) considered the state of the
liquor laws in the Cape Colony, starting with a Plakaat of
1804, in
order to interpret a prohibition on the sale of liquor inserted in
1818 in title deeds of hotels at Fish Hoek.
[7] In the present appeal the fact that the passage
extended up towards two outside lavatories, one on each property with
a common
wall separating them, suggests that the servitudes may have
been imposed by the local authority to give access to the backyards
of the properties from Dorp Street for the primary purpose of
removing what was politely called 'night soil'. But there was no
evidence in this regard or any other evidence as to the conditions
prevailing at the time the servitudes were created. The fact
mentioned by the full court, in the passage from the judgment quoted
above, that there are now commercial buildings on the properties,
is
irrelevant.
[8] In the circumstances I believe that such ambiguity
as there is should be resolved by applying the well established rule
of construction
that because a servitude is a limitation on
ownership, it must be accorded an interpretation which least
encumbers the servient
tenement. Voet,
12
in discussing the urban servitude of
tigni
immittendi
(ie the right to let a beam into a
neighbour's party wall), contrasts the position under a limited
agreement as opposed to a general
agreement and says that where the
number of beams and mode of letting in has been defined, the owner of
the dominant tenement is
not allowed either to let in more or to
alter the shape of the letting in. The reason he gives is:
'That is especially so because
the granting of a servitude receives a strict interpretation as being
an odious thing (because it
is opposed to natural freedom); and in
case of doubt there must be a declaration in favour of freedom.'
13
As authority for this proposition Voet refers to,
amongst others, Carpzovius
14
and the author of the opinion in the
Hollandsche
Consultatien
15
where the passage from Carpzovius which follows is quoted:
'. . .
servitus
ceu res odiosa restringi, ac in dubio pro libertate pronunciari
debet. Et semper servitus indefinita ita est interpretanda,
quo
fundus serviens minori afficiatur detrimento
.'
The passage may be translated as follows:
'. . . a servitude being
something odious should be interpreted restrictively and so, in case
of doubt, should be declared free
of restraint. And an imprecise
servitude must always be interpreted so that the servient tenement is
the less adversely burdened.'
[9] The restrictive approach to interpreting servitudes
has been endorsed by this court in
Pieterse v
Du Plessis
16
although in
Van Rensburg v Taute
17
the caveat was added that:
'By die toepassing van hierdie
beginsel moet egter steeds in gedagte gehou word dat die aard en
omvang van die beswaring bepaal
word na aanleiding van die betekenis
wat gegee moet word aan die ooreenkoms wat die serwituut daarstel.
Indien die betekenis daarvan
ondubbelsinnig blyk te wees, is 'n hof
nie geregtig om daarvan af te wyk ten einde 'n mindere beswaring te
bewerkstellig nie.'
18
[10] In my respectful view, the meaning given by the
full court to the servitude burdening the plaintiff's property loses
sight
of this principle of interpretation, and the conclusion reached
by that court accordingly cannot be supported. Indeed, counsel was
unable to refer to any authority where a servitude was construed as
being in such wide and imprecise terms and I have found none
either.
I therefore conclude that the servitude in question must be limited
to the use of the passage as a passageway to gain access
to the
defendant's property.
[11] The conclusion reached in the previous paragraph
renders it unnecessary, with one exception, to consider the evidence
of the
witnesses called on behalf of the defendant as to the alleged
exercise of the servitude. The exception relates to the evidence of
Mr Gideon Jacobs who was employed by a tenant of the defendant's
predecessor in title. Counsel representing the defendant submitted
that a proper reading of Jacobs' evidence showed that on occasion he
used the passage as a passageway to obtain access to the extended
passage to clear a drain on Erf 548 and also to clean away debris
which had fallen into the extended passage when he cleaned gutters
of
a building on Erf 548 which adjoined the extended passage. Therefore,
so went the argument, the passage was used as a passageway
to gain
access to the extended passage, which was part of Erf 548 (now the
defendant's property), and extinctive prescription was
accordingly
interrupted on each occasion this took place. I find the argument
contrived but it is possible to dispose of it relatively
briefly on
the facts. Jacobs never said expressly that he went into the extended
passage, but we were asked to infer that he did.
I am not prepared,
however, to accept that he was there at all because his evidence was
confusing and contradictory, and deviated
in significant respects
from what was put to the plaintiff's witnesses on this very point. In
addition he confessed to two confrontations
with the plaintiff in the
past which cast doubt on his reliability.
[12] The trial court found it to be clear on the
evidence that the defendant and its predecessors in title had not
exercised the
right of way through the passage since at least 1966,
when the wall was built by Scheiffer; that after the wall was built,
it was
no longer possible to obtain access to Erf 548 by means of the
passage; and that the position did not change until 2001, when the
defendant built a door which opened on to the passage. I agree with
these conclusions. It follows that the requirements of s 7(1)
of
the Prescription Act,
19
which provide that:
'A servitude shall be
extinguished by prescription if it has not been exercised for an
uninterrupted period of thirty years',
have been satisfied. The argument set out in paragraphs
35 and 36 of the judgment of the full court was â in my view,
correctly
â abandoned on appeal and it is therefore not necessary
to consider it. In my view the appeal should be upheld.
[13] I turn to consider the cross-appeal. The plaintiff
occupied Erf 3765 as owner after he acquired it in 1967 (although he
only
obtained transfer in 1976, the delay being due to litigation
with his father from whom he acquired it). After the wall was built
by Scheiffer in 1966 the extended passage effectively became part of
the plaintiff's backyard. A year or two thereafter, as I have
said,
the plaintiff erected the door, at the Dorp Street entrance to the
passage, to which he and his tenants had a key. The door
was kept
locked most of the time thereafter. He accordingly controlled access
to the passage and the extended passage. In addition
in 1968 the
plaintiff effected improvements to his property: he built a wall
which encroached slightly on the extended passage
between points G
and H; he constructed a drain which ran from and under the extended
passage to Dorp Street; and he paved the passage
and the extended
passage. On these facts there is no doubt in my mind that the trial
court and the full court were correct in finding
that the plaintiff
had both the intention to possess the extended passage as owner, and
that he exercised physical control over
it. The requirements of that
part of s 1 of the Prescription Act,
which provide that
'a person shall by prescription
become the owner of a thing which he has possessed openly and as if
he were the owner thereof for
an uninterrupted period of thirty
years',
were accordingly satisfied. It follows that the
cross-appeal falls to be dismissed.
[14] The following order is made:
1(a) The appeal succeeds, with costs.
(b) The order of the full court is set aside and the
following order substituted: 'The appeal is dismissed, with costs.'
2. The cross-appeal is dismissed, with costs.
_______________
T D CLOETE
JUDGE OF APPEAL
Appearances:
Counsel for Appellant: J H Roux SC
Instructed by
Morkel & De Villiers, Somerset West
Matsepes, Bloemfontein
Counsel for Respondent: Ms M Ipser
Instructed by
Schliemann Incorporated, Somerset West
Naudes, Bloemfontein
1
2007 (5) SA 222
(C).
2
Page 235.
3
See para 12 of the judgment of the full court, n
1 above.
4
Para 15.
5
As eg in
Van
Rensburg v Taute
1975 (1) SA 279
(A).
6
Haviland Estates (Pty) Ltd v McMaster
1969 (2) SA 312
(A) at 322B-C.
7
See eg
Breed v Van
den Berg
1932 AD 283
at 291-3;
Shacklock v Shacklock
1949 (1) SA 91
(A) at 101
in fine
;
MTK Saagmeule (Pty) Ltd v Killyman
Estates (Pty) Ltd
1980 (3) SA 1
(A) at
12F-13C.
8
1944 AD 106.
9
At 115-116 and 117.
10
1898 5 OR 223
at 227-8.
11
1929 CPD 263.
12
Commentarius ad Pandectas
8.2.2.
13
Gane's translation vol 2 p 440.
To the same
effect, as regards the general principle, is Schorer in his
supplementary notes to Grotius 2.32, Austen's translation
p 303.
14
Jurisprudentia Forensis Romano-Saxonica
2.41.4.
15
Opinion
146.
16
1972 (2) SA 597
(A) at 599G-
in
fine
; see also
Willoughby's
Consolidated Co Ltd v Copthall Stores Ltd
1918 AD 1
at 16 and
Union Government
(Minister of Railways and Harbours) v Marais
1920 AD 240
at 271 per Maasdorp JA; and see the decisions of Corbett
J in
Stuttaford v Kruger
1965 (4) SA 505
(C) (appendix) and
Jonordon
Investment (Pty) Ltd v De Aar Drankwinkel (Edms) Bpk
1969 (2) SA 117
(C) at 125H-126B.
17
Above n 5, at 301G-
in
fine
.
18
In applying this principle it must, however, be
borne in mind that the nature and extent of the encumbrance is
determined with
reference to the meaning that must be given to the
agreement that constitutes the servitude. If the meaning is
unambiguous, a
court is not entitled to depart therefrom in order to
achieve a lesser encumbrance. (My translation.)
19
68 of 1969.