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[2008] ZAWCHC 262
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Eskom Holdings Ltd v Dorfling NO and Others (10487/2008) [2008] ZAWCHC 262 (8 September 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE NO
:
10487/2008
DATE:
8
SEPTEMBER 2008
In
the matter between:
ESKOM
HOLDINGS LIMITED
APPLICANT
versus
LEONARDO
DORFLING N.O.
1
st
RESPONDENT
ABRAHAM
SWERSKY N.O.
2
nd
RESPONDENT
GISELA
WEINMANN 3
rd
RESPONDENT
JUDGMENT
BOZALEK
J
For
many years the applicant herein, Eskom Holdings Limited, has run a
power line or power lines across a certain property in
the George
Municipality known as the Remainder of the Farm Plattekloof No. 131.
Its rights to do so have been secured by a series
of servitudes over
the property, the last one having been registered in July 2005
following an agreement reached between the
registered owner of the
property and the applicant.
The
present owner of the property is the Leon Dorfling Family Trust.
First and Second Respondents were, at the material time,
the
trustees of the trust and were cited in that capacity.
Third
Respondent represents the other respondents and manages the affairs
of the trust.
Since
2005 applicant has, from time to time, performed work on the
property either directly or through its contractors with a
view to
erecting a new power line or lines to replace an existing power line
which applicant states has been inadequate for applicant's
purposes
and which has also physically degraded. Over this period, however,
at least two major disputes have arisen between the
present
registered owner and the applicant regarding the extent of
applicant's rights under the servitude and the manner in which
it
has exercised these rights. Both disputes have led to litigation,
namely the present matter, and earlier application proceedings
in
2006 which were dealt with by
Davis
J
in a series of judgments.
In
May and June this year, applicant's servants and contractors
intensified their work in erecting a new power line at the property.
However, disputes again arose between it and the owner on a variety
of issues, but principally on the scope of applicant's servitudinal
rights and thus the work that it was permitted to do on the
property. Despite meetings and much correspondence being exchanged,
these disputes could not be resolved and on several occasions
applicant's employees and/or its contractors were prevented by
the
owner from entering onto the property to pursue their work.
Accordingly, in late June this year, applicant brought an urgent
application seeking to secure its appropriate access to the
property. The substantive relief initially sought was a rule
nisi
in
the following terms:
1. Directing
the first and third respondents to forthwith grant the applicant,
its employees or any contractor or person appointed
by the applicant
access to and over the property...for the purpose of exercising its
rights under a notarial deed of cancellation
and registration of
servitude number K 673-2005.
2. Interdicting
and restraining the First and Third Respondents from in any manner
impeding access to and over the property by
the applicant, its
employees or any contractor or person appointed by the applicant for
the purpose of exercising the applicant's
rights under the notarial
deed.
A
rule
nisi
was
obtained on the 2 July 2008 and thus the matter came before me on
the return day of the rule. In the intervening period respondents
filed a lengthy opposing affidavit and the applicant replying
affidavits with the result that the papers comprise some 650 pages,
much of it detailed annexures. Both parties filed comprehensive
heads dealing with a variety of legal and factual issues. In
the
view I take of the matter, however, much of the factual materia! put
before the court is irrelevant because the essential
dispute can be
disposed of on the facts which are common cause or which are not
disputed. Likewise, many of the legal issues
raised in the papers
and in the heads do not need to be addressed.
Although
the application, on the face of it, concerns access to the property,
the underlying and core issue is whether applicant's
servitudinal
rights allow it to erect a power line or lines within a 31 metre
zone, as is contended by the respondents, or whether
it has the
right to do so within a 62 metre zone, as is contended by the
applicant. The answer to this question lies, in my view,
solely on
the interpretation of the terms of the servitude. Furthermore, and
no doubt because the respondents' refusal to allow
the applicant
onto the property from time to time stemmed directly from the
dispute between the parties on the aforesaid issue,
Mr Schippers,
who appeared on behalf of applicant, correctly conceded that if his
client's interpretation of its servitudinal
rights did not prevail
then it could not succeed in this application.
Most
of the terms of the servitude required to be set out for the
purposes of this judgment and they read as follows insofar as
they
are relevant:
"In
terms of an agreement entered into by the
parties
on 13 September 2004:
(a)...
(b)
the owner hereby grants to Eskom for itself, its successors, assigns
or licensees
A.
A
perpetual servitude of electric power transmission 31 metres wide
over the property, subject to any existing servitude or other
real
right, to convey electricity across
the property by means of 2
(two) overhead power lines each consisting of conductors, cables
and/or appliances mounted on poles
or structures with such structure
supporting mechanisms as may be necessary or
convenient; and
B.
A
perpetual servitude for telecommunication and other related purposes
over the property substantially along the route referred
to in A
above, by means of conductors, cables and/or appliances mounted on
poles and/or structures with such structure supporting
mechanisms
as may be necessary or convenient; (hereinafter together with
the restriction area referred to in 3.1, referred
to as the
"Servitude Area")
1.
The servitude/each of the servitudes shall include the
following-
1.1. the
right to erect such structures and works on the property or to erect
or lead such conductors, cables, appliances or other
equipment on or
over the property as may be necessary or convenient in exercising
the servitude;
1.2. the
right to enter and be upon the property at any time in order to
construct, erect, operate, use, maintain, repair, re-erect,
alter or
inspect the structures, works, appliances, conductors, or cables on
the property or in order to gain access to any adjacent
property in
the exercise of similar rights;
1.3. the
right to use existing roads giving access to the property or roads
running across the property and gates on the property
and to erect
in any fence such gates as may be necessary or convenient to gain
access to or egress from the property and to gain
access to any
power line, telecommunication conductors, cables or accessory
equipment;
1.4. the
right to remove any trees, bush
h
material, grass or structures within the restricted area defined in
clause 3 hereof and the right to cut or trim any tree in
order to
comply with the restrictions referred to in clause 3 hereof;
1.5. the
right to utilise various conductors, installations and apparatus in
the servitude area for radio and/or microwave and
telecommunication
and other related purposes.
1.6. every
ancillary right necessary or convenient for the proper exercise of
the servitude to convey electricity across the property
and for
telecommunication purposes.
2.
Eskom shall exercise its rights subject to the
following terms and conditions-
2.1. Eskom
shall ensure that any gates used by it are kept closed.
2.2.
Eskom shall pay compensation-
2.2.1
Where
damage is caused intentionally to any property by Eskom, its
employees or contractors, to enable Eskom to use or to continue
to
use the servitude area for its intended purpose, or
2.2.2
Where
damage or injury is caused by any negligent act or omission on the
part
of
Eskom,
its employees or contractors.
No
compensation is payable for damage to natural vegetation and also
not for damage to crops, orchards, vineyards or planted
crops or
trees within the servitude area.
3.
With regard to the owner, the following special restrictions
are placed on the use of the property/properties
namely-
3.1. No
building or structure may be erected or installed above or below the
surface of the ground within 15.5 (fifteen comma
five) metres of the
centre line of any power line or within 6 (six) metres from any
structure supporting mechanism;
3.2. No
trees shall be planted within the servitude area nor be allowed to
grow to a height in excess of the horizontal distance
of that tree
from the nearest conductor of any power line or to grow in such a
manner as to endanger that line should it fall
or be cut down;
3.3. No
material which may in the opinion of Eskom endanger the safety of
any power line shah be placed within 15,5 (fifteen comma
five)
metres of the centre line of any power line;
3
4 No mining activities or blasting operations shall be carried
out within 500 metres of the centre line of any power line,
without
the prior written permission of Eskom.
4.
Eskom shall have the right to:
let
any portion of the servitude area and/or any of the installations
and apparatus thereon to any third party on such conditions
and
uses Eskom may deem fit;
cede
or alienate all or any of the rights granted in terms hereof to any
third party, be it before or after exercising of the
option before
or after registration of the servitude in the relevant deeds
office."
Mr
Schippers, for the applicant, contends that the servitude, from a
size point of view, consists of the 31 metre corridor referred
to in
clause A plus the restricted area referred to in sub-clause 3.1.
That sub-clause provides that the owner may not erect
or install any
building or structure within 15,5 metres of the centre line of any
power line. Thus, by presupposing that there
will be two power lines
placed at the extremities of the 31 metre zone and adding 15.5
metres on each side, it is contended on
behalf of the applicant that
the total width of the servitude corridor amounts to 62 metres.
Within this area, submits Mr Schippers,
applicant may exercise fully
its rights under the servitude including the right to erect poles or
structures, if necessary with
structure supporting mechanisms. For
this interpretation of the servitude Mr Schippers relies on a number
of textual points.
Chief amongst them are, firstly, the phrase:
"hereinafter
together with the restriction area referred to in 3,1, referred to
as the "Servitude Area".
This
definition, it is contended, makes it plain that the total size of
the servitude corridor is 31 metres plus 15.5 metres x
2, i.e. a
total of 62 metres.
In
further support of this contention applicant invokes the provisions
of clauses 3.1 and 4.1. Clause 4.1, it is said, similarly
makes it
plain that applicant has the right to erect installations and
apparatus on the entire, i.e. 62 metre wide servitude
corridor.
Clause 3.1, it is said, also indicates that applicant may build or
erect structures outside the 31 metre zone, otherwise
the 6 metre
restriction, being less than the 15, 5 metre restriction, would
serve no purpose.
Mr
Schippers relied also on sub-clauses 1.1 and 1.5 read with clause A.
He submitted that clause A is descriptive of, but not
exhaustive of
the applicant's servitudinal rights. Sub-clauses 1.1 and 1.5 with
their respective references to "structure
and works on the
property" and "installations and apparatus in the
servitude area" serve to illustrate that the
applicant's
construction rights, if I may call them that
r
are not limited to the 32 metre corridor.
On
behalf of the Respondents, Mr Borgstrom contends for a much more
restricted interpretation of the geographical extent of applicants
servitudinal rights, namely, that the servitude, as a whole, creates
two zones, an inner and outer one. Within the inner zone,
a corridor
of 31 metres, the applicant may erect the pylons, structures and
their supports which carry the power line or lines,
but these
structures or supports may not encroach outside this corridor. In
what I shall refer to as the outer zone, this extending
15.5 metres
from the centre line of any power line, as envisaged by clause 3.1,
applicant enjoys more limited rights, mainly,
but not exclusively,
of a negative nature, namely, to enforce upon the owner of the
servient property the obligations imposed
upon it in terms of
subclauses 3.1 to 3.3. Within this outer zone, however,
applicant also enjoys the positive rights set
out in sub-clauses 4.1
to 4.2.
In
my view, the interpretation contended for by the respondents is the
correct one and must be preferred over applicant's interpretation
for a number of reasons. In the first place, on an overall reading
of the servitude, such an interpretation emerges as the obvious
and
logical one whereas the interpretation favoured by the applicant is
not supported by either the structure or wording of the
servitude.
Clause A establishes what appears to be the primary servitude, one
of the electrical power transmission, and immediately
limits it to a
corridor of 31 metres. If its extent was in fact, or could extend
to, 62 metres, one would expect this to be clearly
stated rather
than the expression of an immediate and misleading limitation to 31
metres.
Secondly,
clause A in no way stipulates that the two power lines envisaged
must be 31 metres apart, a configuration which applicant
relies on
as extending the size of the servitude corridor. Indeed, one would
regard it as well within the applicant's rights
to merely erect one
line should it see fit. At the very least, it could erect the two
lines closer to each other than 31 metres
if it saw fit. Thus the
respondents' interpretation accords with an inner zone of 31 metres
in width and an outer zone, the width
of which will depend upon the
location of the structures erected, but which cannot exceed 62
metres.
The
location in the text of the phrase defining the "servitude
area" immediately after the setting out of the two servitudes
in clauses A and B is, in my view, telling. It serves to delineate
the geographical area established in clause A and clause B
from
another separate zone, which it terms the "restriction area."
It
then follows naturally that different rights and obligations apply
in that separate zone, namely, the "restriction area."
Having these two areas together and defining them as the "servitude
area" does not, in my view, come close to stipulating
that the
same rights and obligations will apply in the entire zone. When that
term, the "servitude area\ is tracked through
the balance of
the servitude it appears four times, in clauses 1.5, 2.3, 3.2 and
4.1, In no instance does its use compel the
meaning that applicant
is entitled to exercise the sum total of its rights outside the 31
metre inner zone.
Neither
do I consider that sub-clauses 1.1, 1.5, 3.1 or 4.1 necessarily
support the interpretation contended for by applicant.
Clause 4.1 is
equally capable of the meaning that any installations or apparatus
in or on the servitude area are limited to the
inner zone. Clause
4.1 serves a subsidiary purpose within the servitude as a whole. It
would be surprising if this sub-clause
does much of "the work"
of establishing the width of the servitude corridor. Similar
considerations apply to applicant's
reliance on the Clause 1.5.
Similarly,
clause 3.1 is easily capable of the interpretation that the 15.5
metre and 6 metre restrictions establish the outer
limit within
which the owner may not encroach upon the centre line of a power
line or upon structure supporting mechanisms whichever
distance is
the greater. The applicant's reliance on sub-clause 1.1 is also
misplaced in my view. If given its literal meaning,
it affords
applicant the right to erect structures anywhere on the farm whether
outside the servitude corridor or not. Clearly,
this is a subsidiary
clause which must be read subject to clause A.
It
must further be borne in mind that the servitude does not purport to
stipulate where within the 31 metre zone the power line
or lines
will be situated and thus the limits or reach of the 15,5 buffer
zone on either side of the centre line of such power
line or lines.
The
restriction area is, therefore, more logically not a fixed width. It
may very depending upon the configuration of the line
or lines
within the inner zone. This would accord, furthermore, with economic
sense since a constant 62 metre wide zone would
potentially entail
greater financial compensation to the landowner.
The
concept of the two zones, where the rights and obligations differ
markedly, has the additional merits of practicality and
logic.
Within the inner zone the applicant has a right to erect and
construct. In the outer zone, its rights are limited to ensuring
that no conditions are allowed to develop which may threaten the
integrity of its power lines and supporting structures.
What
is of decisive weight in determining the correct interpretation of
the servitude is the established principle that a servitude
agreement must be interpreted strictly and in a manner least
burdensome to the owner of the servient tenement. See
Pieterse
vs Du Plessis
1972 (2) S.A. page 597 and 599 (g) to (h). This principle is subject
to the qualification that the nature and extent of the burden
must
be determined according to the meaning given to the agreement in
terms of which the servitude was created. If the meaning
thereof is
unequivocal, the court is not entitled to depart from it in order to
bring about a lesser burden. See
Van
Rensburg en Andere vs Taute en andere
1975 (1), S.A. 279
, (AD) 301H.
Mr
Borgstrom sought to rely also on extrinsic evidence to buttress
respondents' interpretation of the servitude, including four
different interpretations of the servitude which the applicant had
allegedly advanced in discussions. In my view, it is not
necessary
to consider such evidence in order to establish the true meaning and
reach of the servitude. Further, in my view, the
interpretation
contended for by the respondents is the clear meaning of the
servitude and, as it happens, is considerably less
burdensome to the
servient tenement. It is common cause or not disputed on the papers
that applicant is in breach of the respondents'
interpretation of
the servitude which, I find, is the correct interpretation thereof.
This is so because the midpoint of the
foundation works for the
pylons or poles which the applicant has constructed are located at
the perimeter of the 31 metre zone
and therefore extend outside of
that zone. In all probability the structures which are intended to
be erected thereon will encroach
even further outside the 31 metre
zone. Mr Schippers thus correctly conceded that if applicant's
interpretation of the servitude
is rejected, it must fail in the
overall application,
Mr
Borgstrom contended, albeit rather faintly, for a finding by this
court that in terms of the existing servitude the 31 metre
corridor
could only safely house the 132 kv line and not the two which the
applicant is intent on installing. Such a finding
is neither
necessary for the determination of this matter nor desirable since
that particular issue was, in my view, not adequately
ventilated on
the papers. All other issues in this matter, therefore, fail by the
way.
The
striking out application brought by applicant was resolved on the
basis that, by agreement, and with no order as to costs,
the
contents of paragraphs 84 and the East sentence in paragraph 193 of
the Third Respondent's opposing affidavit are struck
out.
In
the result the following order is made. The rule
nisi
made
on the 22 July 2008 is discharged and the
APPLICATION
AS A WHOLE IS DISMISSED WITH COSTS
.
BOZALEK,
J