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[1987] ZASCA 61
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City Council of City of Durdan v Woodhaven Ltd. and Another (126/86) [1987] ZASCA 61; [1987] 2 All SA 315 (A) (29 May 1987)
1987-05" 29 Case no 126/86.
THE CITY COUNCIL OF THE CITY OF DURBAN
- and -
WOODHAVEN LIMITED
ELECTRICITY SUPPLY COMMISSION
REGISTRAR OF DEEDS
VIVIER JA.
Case no 126/86 MC
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION
)
In the matter between
THE CITY COUNCIL OF THE CITY OF DURBAN
Appellant
(Second Respondent in the Court a
guo
)
and
WOODHAVEN LIMITED
First Respondent
(Applicant in the Court a
guo
)
ELECTRICITY SUPPLY COMMISSION
Second Respondent
(First Respondent in the Court a quo)
REGISTRAR OF DEEDS
Third Respondent
Coram :
RABIE ACJ et JANSEN, JOUBERT, VIVIER JJA
et
BOSHOFF
AJA.
Heard:
15 May 1987
Delivered:
Judgment /
2.
JUDGMENT
VIVIER JA
:-
The
first respondent, Woodhaven Ltd, which was the applicant in the Court a
guo
, and to which I shall refer as "Woodhaven", is the registered owner
of a certain immovable property ("the property") in Durban described
as the
remainder of lot 2597 and the remainder of lot 2598, both of the farm Mobeni No
13538. On 2 November 1970 Woodhaven purchased
the property, together with other
land, from the appellant, the Durban City Council, which was the second
respondent in the Court
a
guo
and to which I shall refer as "the City
Council". In terms of a notarial deed of servitude dated 11 April 1957,
which /
3. which was duly registered against the title deeds of the
property, the City Council, which then owned the property, granted a servitude,
described as an electric. power transmissïon line servitude, over the
property in favour of the second respondent, the Electricity
Supply Commission
(first respondent in the Court a
guo)
, to which I shall refer as "Escom".
The servitude was granted for the purpose of conferring upon Escom the right to
convey electricity
across the property along the route of the servitude. Escom
was given the right to enter upon the property and erect and maintain
the
transmission line and ancillary structures, and to exercise the powers necessary
for the proper and effec= tive use of the transmission
line. The
consideration
payable /
4. payable by Escom for the grant of the servitude was the
amount of R 7512,00. Amongst the limitations which were placed on the city
Council's rights as owner in the deed óf servitude were certain building
and other restrictions within the servitude area
and the grant of certain rights
of access to the property in favour of Escom. The transmission line was duly
erected. During 1972
the City Council transferred the property to woodhaven
subject to the servitude.
During 1981 Escom started to dismantle certain
power lines and removed certain pylons and foundations. In a letter addressed to
Escom
dated 15 June 1982, Woodhaven requested Escom to confirm that the
servitude
was /
5. was to be cancelled, and Escom duly furnished the reguired
confirmation. Events took a different turn, however, when the City Council
expressed a wish to take over itself the power line for the transmission of
electric power. When Escom informed Woodhaven that the
servitude was about to be
ceded to the City Council, Woodhaven launched the present proceedings upon
notice of motion in the Durban
and Coast Local Division. It sought an order
declaring that Escom had abandoned the servitude, alternatively declaring that
Escom
was not entitled to cede its rights under the servitude to the City
Council. The Registrar of Deeds (Natal) was cited as the third
respondent but no
relief was sought against him. After service of the
application /
6. application on it, Escom intimated that it was prepared
to concede that the servitude had been abandoned and that it would not
oppose
the application, provided no orderfor costs was sought against it. The necessary
assurance in this regard was given by Woodhaven
and Escom has played no further
part in these proceedings.
At the hearing of the application before BOOYSEN
J, counsel for Woodhaven and the City Council respectively were agreed that it
was
not possible to decide the issue of abandonment without hearing oral
evidence. With regard to the alternative prayer BOOYSEN J held
that the
servitude was inalienable and he granted an order declaring that Escom was not
entitled
to /
7. to cede its rights under the servitude to the City Council. With
regard to the issue whether Escom had abandoned the servitude,
the matter was
postponed to a date to be arranged. No order was made as to costs. BOOYSEN J
subsequently ordered that the issue
whether or not Escom's rights under the servitude could be ceded, should be
regarded as having been adjudicated upon as a question
of law in terms of Rule
33(1) of the Uniform Rules of Court, and he granted leave to the City Council to
appeal to this Court against
the declaratory order made by him.
It was not in issue that the notarial deed of 11 April 1957 and its
subsequent registration against the
title /
8. title deeds of the property, constituted a personal servitude
over the property in favour of Escom. The deed imposed a burden upon
the
property, restricting the owner from exercising some of its normal rights of
ownership. It was constituted in favour of a particular
person viz Escom without
reference to its ownership of land. In contrast to praedial servitudes, which
are constituted in favour
of the successive owners of the dominant land and
burden the servient land irrespective of the identity of the owner, personal
servitudes
are essentially personal to the beneficiary. Our law, unlike the
Roman Law, does not recognise a numerus clausus of personal servitudes.
Rights
similar to
those /
9. those in the present case were recognised as personal
servitudes in
Smit N 0 v Die Meester
1959(4) SA 13(T)
at 14 H;
Vestin Eshowe (Pty) Ltd v Town Council of the
Borough of Eshowe
1978(3) SA 546 (N) at 549 H and
Adinvale (Pty) Ltd v Warmbaths Town
Council
1981(3) SA
516 (T) at 518 G-H. Compare the earlier decisions
in
Rand Mines Power Supply Company v Johannesburg Municipality
1911 TPD 1131
at 1140 in fine and
Electricity Supply
Commission
v Estcourt Town Council and Others
1932 NPD
631 at 648. For other personal servitudes recognised
as such in our law see the cases referred to by
van der
Merwe
, Sakereg at p 360-361, to which may be added the
decision in
Bhamjee en 'n Ander v Mergold Beleggings
1983(4)
SA 555(T). In the leading case on personal
servitudes in our law,
Willoughby's Consolidated
Co Ltd
/
10.
Co Ltd v Copthall Stores Ltd
1913 AD 267
, a right to
trade was
recognized as a personal servitude. In his
judgment SOLOMON JA said the following at p 286-287 :-
"It is sufficient to say that the grant of a right to trade, whatever its
exact scope may be, constitutes in my opinion a personal
servitude over the land
in favour of the grantee. I can see no difference in essence between such a
right and a right of way, for
example. In each case the owner of the right is
entitled to make use of the land for a specific purpose.
Voet
(8.1.1)
gives as examples of personal servitudes the right to pluck fruit, or walk
about, or to dine on another man's property, and
I can see no reason why the
right to trade should not fall within the same category. And if this view be
correct, it follows that
Dawson's Stores acquired a personal servitude over the
blocks of land of the Matabele Gold Reef and Estates Co, which, in order to
give
them a real right over the land, should have been registered by them against the
title deeds of that company. Such a right,
however, was essentially one personal
to Dawson's Stores, which it alone could exercise, which it was not entitled to
assign, and
which, like any other rights attaching to the person, was limited in
point of time by the life of that company."
Mr Shaw /
11.
Mr Shaw
, on behalf of the City Council, submitted, however, that not
all personal servitudes are inalienable, but that it depended upon the
nature of
the rights under a particular servitude and the terms upon which the servitude
was created, whether these rights could
be transferred to a third person. As an
example of rights under a servitude which were freely transferable, Mr
Shaw
referred to the right of enjoyment of a usufruct.
Mr Shaw
also relied on certain terms of the deed of servitude as indicating an intention
that Escom could cede its rights to a third person.
He conseguently submitted
that the rights under the present personal servitude were capable of cession to
the City Council.
The /
12. The whole guestion of the alienability of a usufruct and the
subtle distinction between the usufruct itself and the right to enjoy
the
fruits, goes back to Roman Law. Usufruct was the oldest of the Roman Law
personal servitudes, since it existed long before it
was included in the concept
of servitudes. It was only in Justinian's law (possibly already in late
classical law) that it was recognized,
together with
usus
,
habitatio
and
operae servorum vel animalium
, as personal
servitudes. (
Thomas
, Textbook of Roman Law 195-205;
Buckland
, a
Textbook of Roman Law from Augustus to Justinian, 3rd ed 268-270). A usufruct
was regarded as inalienable
and /
13. and could not be transferred from the usufructuary to a third
person so that the latter became usufructuary in place of the former.
This is
clear from
Gaius
2.30 and is confirmed by texts such as Inst. 2.4.3 and D
23.3.66. In Inst. 2.4.3 Justinian, referring to the different ways of
terminating
a usufruct, states that it comes to an end if it is ceded to the
owner of the property over which the usufruct is constituted, and
adds in
brackets that a cession to a stranger would be a nullity (
nam extraneo
cedendo nihil agitur
). The Roman jurists distinguished between the usufruct
itself and the right to enjoy the fruits of the property, so that, while the
usufruct itself could not be alienated,
the /
14.
the right to enjoy the fruits could be sold, let
or
donated. This is the context in which texts such as
Inst. 2.5.1
(referred to by
Mr Shaw
), D 7.1.12.2 and
D 7.1.38 should be read, as
is clearly pointed out by
Sande
,
Cession of Actions
5.34
(Anders's translation
at p 73) in the following words :-
"Lastly, purely personal rights, such as usufruct and habitatio, are not
capable of cession. I assert that the right itself to a usufruct
cannot be ceded
or transferred to a stranger, for it cleaves to the person of the usufructuary;
but the authority to retain possession
of the property and the privilege of
gathering the fruits, as long as the usufructuary enjoys the usufruct, can be
sold and transferred
by him. And this is the construction which must be placed
on those texts which suggest that the usufructuary possesses the power
to
dispose of and cede his usufruct to a stranger (D 7.1.38 and Institutes
2.5.1)."
The /
15. The Roman-Dutch writers were generally
agreed
that a usufruct itself was inalienable
although the right
to enjoy the fruits of the property could be
transferred.
What caused a considerable difference of opinion was
the guestion whether, an attempted
cessio in iure
to a
third person being illegal, it actually destroyed the
usufruct which reverted to the dominus. Those who
held this view, relied on texts such as D 23.3.66,
while others, relying
on texts such as Gaius 2.30 and
Inst 2.4.3, were of the view that the cession was
ipso
jure
void so that no alteration or change in the usufruct
was produced which remained with the person who sought
to alienate it. The latter view was the predominant
view /
16.
view and would seem to be the correct one. See
Sande
op cit
5.35.
Van Leeuwen
,
Censura Forensis
1.2.15.25 refers
to the view held by Donellus and Cujacius that the
purported cession of the usufruct destroys the usufruct,
and goes on to state (Schreiner's translation at p 110):-
"The view of these men, however, is nowhere received in practice, but the
contrary rule has become established as the common one amongst
all. The right
ceded so far as it is not or cannot be transferred to the cessionary remains
with him who makes cession. So that when
a cession of a usufruct is made to a
third party, it is not so much the right of usufruct itself as the right of
taking the fruits
that seems tobe transferred."
Voet
7.1.32, which was relied upon by MrShaw, states that the
usufructuary may grant the property for
enjoyment /
17.
enjoyment to another by sale, lease or grant on sufferance
or for
use, and adds that both lease and every other form
of grant are terminated by
the ending of the usufruct,
even though the grant was made for a somewhat
long period.
That
Voet
is here referring to the right of enjoyment,
as
distinct from the usufruct itself, is made clear in
another passage
(7.4.3) where he disagrees with the view
held by some that an attempted cession of a usufruct to
a stranger extinguishes the usufruct, and relying on
Inst. 2.4.3, says (Gane's trans, vol 2 at p 383):-
"But a cession made to a stranger is a thing of no gravity, and does not
efface the usufruct."
See also
De Groot
, 2.39.4;
Van der Keessel
ad Gr 2.39.5;
Schorer's
/
18.
Schorer
's notes on
De Groot
2.39.3, a translation
of
which is to be found in
Maasdorp
's translation of De
Groot, 3rd
ed at p 517,
Van der Linden
1.11.5 (Henry's
translation at p 170) and
Van der Linden
's note on
Voet
7.4.3, a translation of which
appears in vol 2 at p 383
of Gane's translation of this passage.
Returning to the present case, the nature of
the
rights held by Escom under the servitude in question,
although,in my view,as
purely personal as those under a
usufruct, are in other respects so different from those held
by a usufructuary, that I doubt whether there is room in the
present case for the fine distinction drawn in the case of
a usufruct between the right of enjoyment and the right to
the usufruct itself. In any event the City Council does
not /
19. not claim anything less than the full substance of the
servitude in terms of the purported cession to it by Escom.
What is quite clear from the Roman and
Roman-Dutch
authorities to which I have referred, is
that they regarded
a personal servitude as inalienable. This was also
the
effect of the decision of this Court in
Willoughby's
Con=
solidated Co Ltd v Copthall Stores Ltd
,
supra
, which
was
followed in
Hotel De Aar v Jonordan Investment (Edm) Bpk
1972(2) SA 400(A). I have already referred to what
SOLOMON JA said in
Willoughby's
case about the nature of
the rights under a personal servitude. In the course of
his judgment in that case, INNES JA said very much the
same at p 282 :-
"From the very nature of a personal servitude,
the right which it confers is inseparably attached to the beneficiary.
Res
servit
personae
. /
20.
personae.
He cannot transmit it to his heirs, nor can be alienate it;
when he dies it perishes with him."
This passage
from the judgment of INNES JA was guoted
with approval by VAN BLERK JA in the
case of
Hotel De
Aar v Jonordon Investment
,
supra
, which
concerned a
condition in a title deed prohibiting the transferee
of the
land from carrying on the trade or business of
an hotel or club or from dealing in wine or spirituous
liguor thereon. VAN BLERK JA said at p 405 D-F:-
"Die kernvraag is, of the serwituut, wat aldus tot stand gebring is, 'n
persoonlike serwituut of 'n erfdiensbaarheid is. Is dit eergenoemde,
moet die
serwituutreg geskep gewees het ten gunste van 'n besondere persoon of persone as
die reghebbende(s) daartoe ongeag of hy
of hulle die eienaar(s) van enige grond
is (Ex
parte Geldenhuys
, 1926
OPD 155 /
21.
OPD 155 op bl 163). En: soos INN2S, R., sê in W
illoughby's
consolidated Co., Ctd. v Copthall Stores, Ltd.
,
1913 AD 267
op bl 282, is
juis om die persoonlike aard van die serwituut die toegekende reg onafskeidbaar
verbonde aan die bevoordeelde.
Res servit personae
. Om dié rede
kan hy die reg nie oordra aan sy erfgename of dit vervreem nie. Sterf hy gaan
dit tot niet."
In an earlier case,
Van der Merwe v Van Wyk NO
1921
EDL 298
(a
decision of the Full Bench of that Court)
it was held that a usufruct is such
a personal right
that it cannot be ceded to anyone but the owner of
the
property over which the usufruct exists, and that,
consequently it
does not fall into the community of
property between husband and wife.
Finally, in this
regard, I should refer to sec 66 of the Deeds Registries
Act, /
22.
Act, No 47 of 1937, which gives full effect to our common law by
providing that no personal servitude of usufruct, usus or habitatio,
purporting
to extend beyond the life-time of the person in whose favour it is created,
shall be registered. Nor may a transfer or
cession of such personal servitude to
any person other than the owner of the land encumbered thereby, be
registered.
It remains to deal with Mr Shaw's final submission that the
rights under a personal servitude could be rendered alienable in terms
of the
agreement constituting the servitude. He referred to certain provisions in the
deed of servitude from which, he submitted,
it could be inferred that the
parties intended Escom to have the power to cede its rights under the servitude
to a third party. I
am
unable /
23.
unable to draw the inference contended for by Mr
Shaw
, and it is
accordingly not necessary to decide
whether a personal servitude could be
rendered alienable by
agreement between the parties. For his submission
that
the parties intended Escom to have the right of cession,
Mr
Shaw
relied firstly on the fact that no reference was
made in the deed
of servitude to Escom's successors in
title. I do not regard this fact as any indication of
an intention to grant to Escom a right of cession. Mr
Shaw
next relied on the fact that the servitude was
granted to Escom in perpetuity. In my view a provision .
of this kind means no more than that the servitude is
intended to endure for as long as the statutory juristic
person /
24.
person exists. In the same way as a personal servitude
in favour of
a natural person is often expressly granted
for the lifetime of that person, a personal servitude in
favour of a juristic person is qranted
in perpetuity, intending no more than that it should
last for as long as that beneficiary exists. I fail
to see any indication in a provision of this kind of an
intention to confer a right of cession on the person or juristic person in
whose favour the servitude is created. In saying this I
express no view on
whether the rule in Roman-Dutch law that a personal servitude in favour of a
corporation expires after one hundred
years, still applies in our law (cf
Johannesburg Municipality v Transvaal Cold
Storage
/
25.
Storage Ltd
1904 TS 722
at 729 and
South
African
Railways and Harbours v Paarl Roller Flour Mills Ltd
1921 CPD 62
at 69).
Mr Shaw
finally relied on the fact that
the
City Council is an authorized undertaker for the
supply
of electricity, and submitted that the parties intended
that if and when the City Council sold the property,
Escom would have the power to cede the servitude to the
City Council. While the City Council remained the
owner of the servient land a cession to it would, of
course, have extinguished the servitude by merger and in
accordance with the maxim
nulli res sua servit
(Inst
2.4.3 and Voet 8.4.14). The deed of servitude does not refer to the City
Council as a supplier of
electricity /
26.
electricity and there is not the faintest suggestion
in the deed of
servitude of any possible future use
of the power line by the City Council,
not even in a
provision such as clause 17 of the deed which provides
for a right of cancellation in the event of Escom abandoning the servitude or
ceasing to be in beneficial
occupation under the servitude. There is therefore no basis for
Mr
Shaw
's contention.
For these reasons I am of the view that the rights
under the servitude in guestion were not capable of cession and that the order
appealed against was correctly granted.
The appeal is dismissed with costs.
W. VIVIER JA.
RABIE ACJ)
JANSEN JA)
Concur. JOUBERT JA)
BOSHOFF AJA)