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1987
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[1987] ZASCA 25
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Nach Investments (Pty) Ltd v Yaldai Investments (Pty) Ltd. and Another (28/86) [1987] ZASCA 25; [1987] 2 All SA 154 (A) (26 March 1987)
WPA 28/86
NACH INVESTMENTS (PROPR
I
ETARY) LTD
APPELLANT
and
YALDAI INVESTMENTS (PROPRIETARY
)
LIMITE
D FIRST RESPONDENT
M
ARMERNOVA AND BUILDING PRODUCTS
(PROPRIETARY) LIMITED
........SECOND RESPONDENT
HEFER, JA.
IN THE SUPREME COURT OF SOUTH AFRICA
APPELLATE DIVISION In the matter between
NACH INVESTMENTS (PROPRIETARY)
LIMITED
......APPELLANT
and
YALDAI INVESTMENTS
(PROPRIETARY)
LIMITED
FIRST RESPONDENT
MARMERNOVA AND BUILDING PRODUCTS
(PROPRIETARY) LIMITED
SECOND RESPONDÊNT
CORAM. : JOUBERT; HOEXTER, HEFER,SMALBERGER ,JJA, et KUMLEBEN, AJA.
HEARD
: 17 February 1987.
DELIVERED
:26 March 1987.
JUDGMENT
HEFER,JA.
2.
HEFER , JA
:
First respondent is the owner of erf 157 in the
township of Meadowbrook
Extension 8. Appellant pur-
chased the adjoining erf from first respondent
during
1980. In an addendum to the deed of sale it was re-
corded
" that the Seller has reserved to
itself and its successors in title to Erf 157 Township of MEADOWBROOK
EXTEN-SION NO. 8, a servitude of right of way in perpetuity
leading to the
pro-claimed service road on Portion 460 of the Farm RIETFONTEIN NO. 63,
Registration Division I.R. Transvaal, over
Erf 158 Township of MEADOWBROOK
EXTENSION N0.8, the exact route of which servitude is to be determined by
agreement between the Seller
or its successors in title and the Purchaser or its
successors in title."
A 3
3. A servitude in similar terms was rêgistered against
appellant's title deed when erf 158 was subsequently transferred to it.
After several attempts by the parties at deter-
mining the route of the right of way appellant issued
a notice of motion in the Court a quo in which it claimed
an order
intet alia
declaring that
" the servitude of right of way referred
to in:
(a)
the Addendum to the written
Agreement of Sale concluded between the Applicant and the First Respondent (a
copy of each of which written
Agreement of Sale and Adden-dum is annexed to the
Applicant's Founding Affidavit,marked 'C' and 'D' respectively);
and
(b)
the Deed of Transfer in terms
whereof
the 4
4.
the First Respondent transferred Erf
158 Meadowbrook Extension No. 8, Regis-
tration Division I.R. Transvaal, to the
Applicant on the 25th June,
1981-
is invalid as being void for vagueness." The Court a
quo
dismissed the
application but granted the appellant leave to appeal to this Court. Hence the
present appeal.
In this Court appellant's counsel raised the same argument which he had
unsnccessfully addressed to the Court a
quo
. Shorn of all its trappings
it amounted to this : what is envisaged in the servitude is a right of way
across erf 158 along a specific
route; the route has, however, not been
determined for it is still to be agreed upon; and in this inchoate form
the 5
5. the servitude is invalid. The Court a
quo
rejected
the contention basically because it did not agree
with
the contention that the route of the servitude was in-
tended to be a
specific one. I do not propose discus-
sing the grounds upon which the judgment of the Court
a
quo
was challenged in this Court. Instead I proceed
immediately to state the reasons why I am of the view
that the conclusion arrived at therein, was the correct
one.
By way of introduction two preliminary observa-
tions may be made. The first is that this is not a
case (eg like
Hattingh v van Rensburg
1964(1) S A
578 (T) and
Aris Enterprises (Finance) (Pty) Ltd v
Waterberg
....6
6.
Waterberg Koelkamers (Pty) Ltd
1977(2) S A 425 (A D)
on
which appellant's counsel relied) where one of the
essën-tial terms of an agreement has been left inchoate. In an agreement
for
the constitution of a right of way the determination of the route of the
servitude is not essential. It has long been accepted that
such a ser-vitude may
be constituted either along a specifically agreed route (
facta partis
assignatione
,
per guam exer
-
ceatur
),or generally
(
simplicius per fundum cessa
),in which case the entire servieht tenement
is subject to the servitude and the grantee may select a route provi-ded only
that he
does so
civiliter modo
. (
Northview
.
Properties (Pty)
Ltd v Lurie
1951(3) S A 688 (A D) at
p 697 7
7.
p 697,
Kakamas Bestuursraad v Louw
1960(2) S A 202
(A D)
at p 217,
Gardens Estate Ltd v Lewis
1920 A D 144
at p
150,
De Villiers & Another v Barnard & Others
1958(3)
S A 167 (A D) at p 226,
Hollmann& Another v Estate Latre
1970(3) S.A 638 (A D) at p 645). It follows that a
right of way may be validly constituted without any refe-
rence in its formulation to its route.
The second observation is that where the formula-
tion does contain such a reference and the route is said
to be determinable by agreement, the servitucle may or
may not be valid depending on the intention of the parties.
If the intention is to constitute a specific right of
way i e one which may only be exercised along a specifically
defined 8
8.
defined route, the agreement is inchoate at least as
to a material term and for that reason it is unenforce-able until the route
is agreed upon. (
Johnston v Leal
1980(3) S A 927 (A D ) at p 939). But
the agreement is perfectly valid and enforceable if a general servi-tude is
intended and there
is a reference to a future agreement merely because the
parties contemplate that the route will eventually be agreed upon. What is
envisaged in such a case is an initial general right which may be converted to a
specific one by subsequent agreement. Accordingly,
where there is a dispute
about the nature of the right conferred on the grantee in any given case, the
intention of the parties is
decisive 9
9.
decisive. It is to be determined, of course, by
in-
terpreting the agreement according to the normal rules
of
construction.
I do not agree with appellant's counsel that
the addendum to the deed of sale in the present case
is to be construed as an agreement for a specific rïgnt
of waý. The whole addendum consists of three clauses.
Clauses 2 and 3 are irrelevant. Clause 1 in truncated
form reads as follows :
"
It is recorded that the Seller has
reserved
a servitude of
right of way in perpetuity
over erf 158
the exact
route of which servitude is to be
determined by agreement ."
Clause 1 is, in my view, capable of one inter-
pretation....l0
10.
pretation only. It may conveniently be divided into two parts. The
first (which I have itali-cised ) records what has been agreed
upon i e that the
seller has reseryed a right of way over erf 158. Without detracting from the
right which has thus already been
reserved, the second part then provides that
the route will be determined by agreement; and the effect is that, until it is
so determined,
the right may be exercised along a route selected by the seller.
To hold other-, wise would lead to results which could never have
been intended.
If a specific servitude had been in-tended one wonders why its route was not
settled there and
then 11
11.
then and why the parties preferred to leave such a
vital
part of their agreement open for further nego-tiation. On that construction the
determination of the route was indeed vital
for, as appellant's coun-sel rightly
submitted, a servitude would only come into being if and when its route was
defined. Accor-dingly,
should further negotiations fail or even if the appellant
should refuse to negotiate (cf
Putco Ltd v TV and Radio Guarantee Co (Pty)
Ltd and Ctther Related Cases
1985(4) S A 809 (A D ) at p 828), it would
never come into existence at all. Nothing would then come of the careful
reservation,in
the clearest possible terms,in an agreement specially
prepared 12
12.
prepared for the purpose, of a right which the parties
obviously intended to be effective and capable of being exercised; nor would
anything come of its registration. That is plainly not what the parties had in
mind; it is inco.nceivable that they envisaged a right
dependent for its very
existence on matters such as the whim of the owner of the servient tenement or
the uncertain outcome of further
negotiations.
Assuming, however, that I am wrong and that the construction for which
appellant's counsel contended is a possible one, the "
ut res magis valeat
quam pereat
" principle clearly applies. It was enunciated in the following
terms by GREENBERG JA in
Hughes v
Rademeyer
13
13.
Bademeyer
1947(3) S A 133 (A D ) at p 138 :
" in construing a contract, the
Court is not entitled to strain words because of the provisions of an Act
which might affect the validity of the contract, or to be
influenced by those
provisions in determining whether the contract is reasonably capable of a
meaning which will not make the contract
invalid, but that when it has come to a
conclusion that the contract is rea-sonably capable of such meaning, it will
apply the maxim."
(See also
McCullogh v Fernwood Estate Ltd
, 1920 A D
204 at p 209). It makes no difference to the applica-
tion of this principle whether the agreement is alleged
to be invalid for non-compliance with some statutory re-
quirement or on some other ground. Once it appears that
it 14
14. it is reasonably capable of an interpretation which will not
render it invalid, that interpretation is to be preferred. And in
the instant
case the agreement is at least reasonably capable of the interpretation which I
consider to be the correct one.
It should perhaps be stated in conclusion that the registration of a right of
way in the form in which the servitude was registered
in this case appears to be
common in Deeds Office practice. (Cf
Jones
: Conveyancing in South Africa
(3rd ed) pp 256,262;
Newall's
Law and prac-tice of Deeds Registration
(2nd ed) pp 132,300). Ac-cording to the report of the Registrar of Deeds it is
also in accordance
with the requirements of the Deeds
Registries 15
15. Registries Act, 1937 and the relevant Regulations. In
view of the conclusion at which I have arrived, it is unnecessary to decide
whether the application should not in any event have been dismissed on the
grounds stated
inter alia
in
Standard Bank van S A Bpk v Breitenbach
en Andere
1977(1)S A 151(T) at p 155-6.
The appeal is dismissed with costs including the costs of two counsel.
J J F HEFER,JA.
JOUBERT,JA. )
HOEXTER,JA. )
CONCUR. SMALBERGER,JA. )
KUMLEBEN,AJA. )