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[1987] ZASCA 155
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Malan and Another v Ardconnel Investments (Pty) Ltd. (379/86) [1987] ZASCA 155; [1988] 2 All SA 128 (A) (2 December 1987)
Case No 379/86 WHN
DANIEL JOHANNES PAULUS MALAN
1st Appellant
ANTONIO CASTANHO
2nd Appellant
and
ARDCONNEL INVESTMENTS (PTY) LTD
Respondent
JOUBERT
, JA
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE
DIVISION
In the matter between:
DANIEL JOHANNES PAULUS MALAN
1st
Appellant
ANTONIO CASTANHO
2nd Appellant
and
ARDCONNEL INVESTMENTS (PTY) LTD
Respondent
Coram
: JOUBERT, SMALBERGER, NESTADT JJA et NICHOLAS, STEYN AJJA.
Date of Hearinq
: 3 November 1987
Date of Delivery
: 2 December
1987
JUDGMENT
JOUBERT
, JA:
/Federated
2
Federated Building Co (Pty) Ltd ("the township owner") applied
to the Administrator of the Transvaal under the Townships and Town-Planning
Ordinance No 11 of 1931 (T) to establish a township on land owned by it in the
district of Germiston. Its application was granted.
On 27 August 1952 the
Administrator pro= claimed the township of Spartan an approved township by
Proclamation No 230 of 1952 issued
under section 20(4) of the said Ordinance.
The township comprises 263 erven indicated on General Plan S G No A7827/50
(Annexure "H").
/The
3
The conditions imposed by the Administrator in proclaiming the
township are divided into two parts : A Conditions of Establishment
and B
Conditions of Title. Condition A 8 set aside 19 erven to be trans= ferred to the
proper authorities by the township owner for
government and municipal purposes
while erf 259 was to be reserved by the township owner for railway purposes.
Condition A 11 obliged
the township owner and its successors in title to observe
the conditions of establish= ment and to take the necessary steps to secure
the
enforcement of the conditions of title.
In part B of the conditions the erven are
/grouped
4
grouped under several different categories. According
to
Condition B 1 all rights to minerals and precious
stones in all erven are
reserved by the township owner
and its successors in title to such rights.
These
mineral rights are in the nature of personal quasi
servitudes which are freely assignable (1959 Tydskrif
vir Hedendaagse
Romeins-Hollandse Reg p 30). The
township owner became entitled in terms of
sec 71(1)
of the
Deeds Registries Act No 47 of 1937
on the opening
of a
township register for the township to take out a
certificate of rights to minerals in respect of the
reserved mineral rights. Condition B 2 contains
/provisions
5
provisions which apply to all erven, with the exception of the
20 erven mentioned in condition A 8. They relate to matters such as
the
prohibition against transfer or lease an erf to any Coloured person, and the
sub-division of erven save in exceptional circumstances,
elevational treatment
of buildings, excavations, the keeping of animals and the discharge or drainage
of stormwater. According to
Condition B 3 three erven (including erf 184) are
described as "special business erven" which are to be used for trade or business
purposes only subject to certain restrictions, e.g. they are not to be used for
a warehouse or a place of amusement or
/assembly,
6
assembly, garage, industrial premises or an hotel. Furthermore
"no business carried on- - - - with persons other than Europeans and
no business
of a kaffir eating-house of any description" may be conducted on them. Buildings
erected on them are to have a minimum
of two storeys and the upper storeys may
be used for residential purposes. In terms of Con= dition B 4 erf 258 is to be a
"general
business erf" which is to "be used for trade or business purposes only
provided that it shall not be used for a place of amusement
or assembly".
Condition B 5 establishes erf 185 as a "special purposes erf" which is to be
used
/solely
7
solely for the business of a motor garage and purposes
incidental thereto. According to Condition B 6 erf 127 is a "special erf" on
which there are graves. Condition B 7 deals with "industrial erven" which
consist of a total of 237 erven. The relevant portion of
Condition B 7 provides
as follows:
"All erven except those referred to in Clause B 3 to B 6 shall in addition to
the conditions set out in clause B 2 hereof be subject
to the following con=
ditions:-
(a) The erf and the building or buildings to be erected thereon shall be used
solely for such industrial purposes as may be approved
in writing by the local
authority and for purposes in= cidental thereto, but for no
other
/use
8
use or purpose, whatever, and no retail trading of any description (save as
provided in sub-clause (ii) hereof) shall be conducted
thereon. The words '
purposes incidental thereto' shall be deemed to include -
(i) the erection and use for residential purposes of buildings for managers
and watchmen of works, warehouses or factories erected
on the said erf, and with
the consent, in writing, of the Administrator, given after consultation with the
Native Affairs Department
and of the local authority, and subject to such
conditions as the Adminis= trator in consultation with the local authority may
impose,
provision may be made for the housing of coloured persons
bona
fide and necessarily employed on full-time work in the industry conducted on
the erf;
/(ii)
9
(ii) the right of the owner to dis= pose of goods manufactured
on erf or any other goods permitted in writing by the local authority."
Condition B 8 provides for a servitude of sewerage
on all erven in favour
of the local authority while
Condition B 9 contains definitions of
"applicant" and
"Coloured person".
The respondent became the registered owner of erf 184 which it acquired
directly from the township owner by Deed of Transfer No T23737/1961
(Annexure
"B") registered on 6 November 1961. This Deed of Transfer incorporated
Conditions of Title B 1, 2, 3, 8 and 9 from the
Administrator's Proclamation as
conditions (a)
/to
10
to (p). Condition of Title B 3 which categorized erf 184 as a
special business erf to be used for trade or business purposes only
is common to
erven 64 and 183 only but not to the other erven (including erf 42) in the
township.
On 12 December 1961 the township owner by Deed of Transfer No
T26529/1961 transferred erf 42 to Broadacres Investments Ltd. The latter
by Deed
of Transfer No T21718/1965 (Annexure "C") on 17 June 1965 transferred erf 42 to
the first appellant. This Deed of Transfer
took over Conditions of Title B
1,2,7, 8 and 9 from the Administrator's Proclamation as
/conditions
11
conditions (a) to (n). It was Condition of Title B 7 which
categorized 237 erven (including erf 42) as industrial erven. As I have
already
indicated, erf 184 does not fall in the category of industrial erven. The
counterparts of Condition of Title B 7 are conditions
(i) to (k) inclusive in
the title deed of erf 42 which are not common to the conditions in the title
deed of erf 184. Only Conditions
of Title B 1, 2, 8 and 9 are common to erven 42
and 184. Condition of Title B 7 which categorized erf 42 as an industrial erf
does
not appear in the title deed of erf 184. Likewise Condition of Title B 3
which
/categorized
12
categorized erf 184 as a special business erf was
not included in the title of erf 42.
On 2 December 1985 the appellants entered into a written lease in terms of
which the first appellant let the buildings on erf 42 to
the second appellant
for a period of 5 years as from 1 December 1985 "for the pur= pose of general
dealer, fishmonger and café
keeper only." (Annexure "DJM 9"). The second
appellant commenced on 7 April 1986 to conduct the business of a retail food
supplier
under the style of Benfica Café on erf 42. His clientele
consisted almost exclusively of blacks employed in the township.
The
respondent brought an urgent application in the Witwatersrand Local Division
against the appellants
/for
13
for an interdict restraining them from continuing to conduct
the business of a retail food supplier on erf 42 and for an order declaring
that
the conduct of such business constituted a contravention of Condition B 7(a) of
the Township Conditions of Establishment of
Spartan Township and its counterpart
of condi= tion (i) of the Conditions of Title registered in Deed of Transfer No
T21718/65. SPOELSTRA
J granted the interdict "for as long as the conditions of
title of the said erf do not permit the aforesaid business". With leave
of the
Court
a quo
the appellants now appeal to this Court against the judgment.
The respondent
/noted
14
noted a cross-appeal against certain portions of the judgment
which it abandoned at the hearing of the appeal in this Court.
The appellants challenged the
locus standi in judicio
of the
respondent to enforce observance by the appellants of Condition 7 (a) of the
Township Conditions of Title,incorporated as
restrictive title condition (i) in
the title deed of erf 42. They submitted that the condition was not one which
enured to the benefit
of the respondent, but was enforceable solely by the
township owner. The condition, it was contended, did not fall
/within
15
within the principles enunciated in
Elliston v Reacher
,
(1908) 2 Ch D 374
and
Alexander v Johns
,
1912 AD 431.
More specifically,
it was argued by
Mr Nochumsohn
on behalf of the appellants that the
decided cases show that, in order to be enforceable by lotholders
inter
se
, the restriction sought to be enforced must be one which is common to the
lots of all the parties concerned, indicating mutual or
reciprocal undertakings
in relation to the re= striction. The restriction in Condition 7(a) is not such
a restriction.
The rule in
Elliston v Reacher
,
supra
, was an
/equitable
15(a)
equitable rule which evolved in the Court of Chancery in
England. From the beginning of the 19th century the vast expansion in industrial
and building activities in England underscored the practical importance of
lay-out and development of townships in order to preserve
their character, to
regulate the character of the buildings, to prevent industries or trade from
encroaching on residential areas
etc. "With the growth of urban building from
the beginning of the nineteenth century, landowners experienced the need for
some form
of covenant which would bind, not only the assignee of land,
/but .
16
but his successors in title, in defence of the amenities of
land retained." (
The United Kingdom
,
the Develop
=
ment of its
Laws and Constitution
, edited by George W Keeton and Dennis Lloyd, 1955, p
137). Conveyancing of freehold land was effected privately by covenant between
covenantor and covenantee by creating privity of contract between them. The
registries established in 1703 for West Riding of York
(2,3 Anne c 4), in 1707
for East Riding and For Kingston-upon-Hull (6 Anne c 35) and in 1708 for
Middlesex (6 Anne c 35) were for
the registration of documents such as deeds,
conveyances
/and
17
and wills, and were not land registries. (I may observe in
parenthesis that our system of land regis= tration is entirely unknown
and
foreign to English law. The origin of our system of land registration, ini=
tiated by the Placaat of 9 May 1560 (2 G P B 1401-1402),
was introduced at the
Cape in 1685. Consult
Houtpoort Mining & Estate Syndicate Ltd v
Jacobs
,
1904 T S 105
at p 108-109,
Coronel's Curator v Estate
Coronel
,
1941 AD 323
at p 338-339). The difficulty was that there was no
privity of contract between the purchasers of lots
/
inter se
18
inter se
. The device employed by English lawyers to
secure a scheme of development (building scheme) was to require all purchasers
of lots
to enter into deeds of mutual covenants whereby they and the vendor were
brought into immediate contractual relation with each other.
An alternative
method was to vest the restrictive covenants in the vendor or in some third
party as trustee for all concerned. See
Lawrence & Others v South County
Freeholds Ltd and Others
,
(1939) 2 All ER 503
(Ch D.) at p 519 E-F. The
covenants then in effect formed a sort of "local law" for the estate on which
the township was, or was
about to be, establish= ed. See
Reid v
Bickerstaff
,
(1909) 2 Ch. D 305
at p 319.
/More ....
19
More often than not all the lots were not sold simul=
taneously in which event it could be very difficult in practice to enter into
deeds of mutual covenants with all parties concerned. The basic problem remained
how to make the restrictive covenants run with the
freehold land on which the
township was, or was to be, established. The English common law lacked in
providing effective machinery
for this purpose. It was in the middle of the 19th
century that the Court of Chancery laid the foundations of the modern doctrine
of restrictive cove= nants by deciding to enforce them
in equity
. The
principles thus developed were enunciated by PARKER J
in
Elliston v
Reacher
,
supra
, at p 384-385
as follows:
/"I
20
"I pass, therefore, to the consideration of the
question whether the plaintiff's can enforce these restrictive covenants. In my
judgment,
in order to bring the principles of
Renals v Cowlishaw
(1878) 9
Ch D 125
,
(1879) 11 Ch D 866
(CA) and
Spicer v Martin
. (188 9)
14 App Cas
12
into operation it must be proved (1) that both the plaintiffs and defendants
derive title under a common vendor; (2) that previously
to selling the lands to
which the plaintiffs and the defendants are respectively entitled the vendor
laid out his estate, or a defined
portion thereof (including the lands pur=
chased by the plaintiffs and defendants respectively), for sale in lots subject
to restrictions
intended to be imposed on all the lots, and which, though
varying in details as to particular lots, are con= sistent and consistent
only
with some gene= ral scheme of development; (3) that these restrictions were
intended by the common vendor to be and were for
the benefit of all the lots
intended to be sold, whether
/or ....
21
or not they were also intended to be and were for the benefit of other land
retained by the vendor; and (4) that both the plaintiffs
and the defendants, or
their predecessors in title, purchased their lots from the common vendor upon
the footing that the restrictions
subject to which the pur= chases were made
were to enure for the bene= fit of the other lots included in the gene= ral
scheme whether
or not they were also to enure for the benefit of other lands
retained by the vendors.
If these four points be established
,
I think
that the plaintiffs would in equity be entitled to enforce the restrictive
covenants entered into by the defendants or their
predecessors with the common
vendor irrespective of the dates of the respective pucchases
. I may observe,
with reference to the third point, that the vendor's object in imposing the
restrictions must in general be gathered
from all the circumstances of the case,
including in particular the nature of the restrictions. If a general observance
of the restrictions
/is
22
is in fact calculated to enchance the values of
the several lots offered for sale, it is an easy inference that the vendor
intended
the restrictions to be for the benefit of all the lots, even though he
might retain other land the value of which might be similarly
enhanced, for a
vendor may naturally be expected to aim at obtaining the highest possible price
for his land. Further, if the first
three points be established, the fourth
point may readily be inferred, provided the purchasers have notice of the facts
involved
in the three first points; but if the purchaser purchases in ignorance
of any material part of those facts, it would be difficult,
if not impossible,
to establish the fourth point. It is also observable that the equity arising out
of the establishment of the four
points I have mentioned has been sometimes
explained by the implication of mutual contracts between the various pur=
chasers, and
sometimes by the implication
/of
23
of a contract between each purchaser and the
common vendor, that each purchaser is to have the benefit of all the covenants
by the
other purchasers, so that each pur= chase is in equity an assign of the
benefit of these covenants. In my opinion the implication
of mutual contract is
not always a perfectly satisfactory explanation. It may be satisfactory where
all the lots are sold by auction
at the same time, but when, as in cases such as
Spicer v Martin
, there is no sale by auction, but all the various sales
are by private treaty and at various intervals of time, the circumstan= ces
may,
at the date of one or more of the sales, be such as to preclude the possibi=
lity of any actual contract. For example, a prior
purchaser may be dead or
incapable of contracting at the time of a subsequent purchase, and in any event
it is unlikely that the
prior and subsequent purchasers are however brought into
personal relationship, and yet the equity may exist between them.
/It
24
It is, I think, enough to say, using Lord Macnaghten's words
in
Spicer v Martin
,
that where the four points I have mentioned are
established, the community of interest imports in equity the reciprocity of
obli=
qation which is in fact contemplated by each at the time of his own
purchase
."
(My italics).
It should be observed that in
Elliston v Reacher
,
supra
,
there was no direct evidence, afforded by the execution
of
the deed of mutual covenant, that the parties in
fact intended a
"búilding scheme". The question was
accordingly whether such intention
could in all the
circumstances of the case beproperly inferred
(
Baxter
and Others v Four Oaks Properties Ltd
, (1965) 1 All
ER
906 (Ch D) at p 914
in fine
. ) The following
/statement
25
statement is to be found in
The Law of Real
Property
,
by R E Megarry and H W R Wade, 2nd ed, 1959 at p 738:
"The reservation by the common vendor of a power to release all or part of
the land from the restrictions does not negative a building
scheme,
nor is it
essential that the restrictions imposed on each plot should be identical
;
it is enough that there is some general scheme of development
." (My
italics ).
The Privy Council case of
Texaco Antilles Ltd v Kernochan and Another
,
(1973) 2 All E R 118
(P C), which came on appeal from a judgment of the Court of
Appeal for the Bahama Islands, involved a "building scheme" which was
mixed
since the lots were in general residential whereas some were commercial. The
litigation, however,
/concerned '.
26
concerned a restriction which was common to all the lots.
I
now turn to consider the position in the Transvaal after it became a Crown
Colony. Proclamation of Townships Ordinance No 19 of
1905 (T) was rather
short-lived inasmuch as it was repealed
in toto
by Townships Act No 33 of
1907 (T). The latter Act pro= vided that a township could be established only on
free= hold land. See the
definition of "owner" in sec 2 read with sec 11. A
townships board could recommend conditions upon which the application to
establish
a township should be granted (secs 3,6). The Colonial Secretary, or
other designated
/Minister
27
Minister, could refuse or grant the application subject
to
such conditions as he elected to prescribe (sec 6).
After the
Surveyor-General had approved the general
plan for the proposed township the
Colonial Secretary,
or other designated Minister, could by notice in
the
Gazette
declare the township an approved one (sec 7).
No
transfer of any lot or erf in the township could be
registered until it had
been :declared an approved
township (sec 4). Only after a local authority
had
been constituted for the township could the Governor by
proclamation in the
Gazette
declared it to be a pro=
claimed township (sec 12).
/What
28
Despite the fact that Act No 33 of 1907 (T) did not expressly
provide for the inclusion of con= ditions of title in the conditions
prescribed
by the Colonial Secretary, or other designated Minister, it would seem to have
been the practice to include them in the
prescribed conditions. This appears
from the facts relating to the prescribed conditions nos. 5 and 6 of a township
laid out under
the provisions of Act No 33 of 1907 which were considered in
Ad
=
ministrator (Transvaal) v Industrial & Commercial Timber &
Supply Co Ltd
,
1932 AD 25
at p 29-30. There was apparently, as far as I
could ascertain,
/no
29
no statutory provision which made the inclusion of the
conditions of title obligatory in all cases.
It appears from sec 15(1) of the
Townships Amendment Act No 34 of 1908 (T) that a township owner could be the
owner of a private leasehold
township, situated on unencumbered freehold land,
while the registered holders of lots or erven had mere lease= hold titles.
Provision
was made in sec 15(4) to effect the conversion of leasehold titles to
freehold titles.
It is against this background that the decision of this Court in
Alexander
v Johns
,
/1912
30
supra
, as well as the judgment of BRISTOWE J in the
Court
a quo
(reported in
1912 W L D 91)
should be approached. The
township owner laid out the township of Boksburg North (presumably an approved
township) in the Transvaal.
On 7 October 1905 the leasehold erven in the
township were sold by auction for a period of 99 years from 1 October 1905
according
to leases the terms of which were common to all erven. Clause 8 of the
leases which prohibited the transfer to, or the occupation
by,
/Coloured
31
Coloured persons of the erven was incorporated in
the leasehold titles and the freehold titles into
which leasehold titles were subsequently converted.
Clause 19 of the leases provided for an option to
convert the leasehold titles into freehold titles.
The land on which the township was established
was presumably owned by the
township owner in free=
hold title. In the Court
a quo
BRISTOWE J
had
little doubt that the conditions in
Elliston v Reacher
,
supra
, had been satisfied on the facts of the case (p97).
In this Court INNES A CJ did not refer to the four
points formulated by
PARKER J in
Elliston v Reacher
,
supra
, but said at p 443-444
:
/"Each
32
"Each original lessee therefore agreed with the ground owner in terms of the
lease which he signed, to subject his holding to the
burden of this restriction
for the benefit of each and every present or future holder of the other lots,
and agreed to accept the
benefit of the same restriction imposed, or to be
imposed, on all the other holdings for his own advantage. Each contract with the
common landlord was made for the benefit of third parties, and each involved an
accep= tance of similar benefits from time to time
from those parties. One would
think, therefore, that on general principles such an arrangement should be
binding upon and enforceable
by the original leaseholders
inter se
. And
the restrictive condition being one directly affecting the user of the lots, it
was properly registered against the leasehold
titles, and ought therefore to be
binding upon all successors of the original
lessees."
Moreover the incorporation of clause 8 in
the leasehold titles, and the freehold titles by conversion.
/amounted...
33
amounted to registered servitudes which were
mutually
binding on all the successors of the original lessees
(p 443-444 and 1912 W L D p 101-102). Owners and tenants
of erven who
infringed the registered servitudes could bê
restrained by the owners
of other erven by interdict from
doing so. Damages were not claimed.
Unlike English law which on the establishing
of the four points set out in
Elliston v Reacher
,
supra
,
had recourse to
equity
to
make restrictive covenants
run with the land in townships and to render them
re=
ciprocally binding on the owners of lots in townships,
our law has the
advantage of making restrictive title
conditions run with the land in
townships as registered
servitudes. Moreover, in our law registration
of
servitudes as real rights dispenses with the necessity of
/proof
34
proof of knowledge of their existence by third parties.
Per
HOEXTER JA in
Frye's (Pty) Ltd v Ries
, 1957(3)
SA 575 (AD) at p 582
A-D:
"Theoretically no doubt the act of registra= tion is regarded as notice to
all the world of the ownership of the real right which
is registered. That
merely means that the person in whose name a real right is regis= tered can
prove his ownership by producing
the registered deed - - - If the registered
owner asserts his right of ownership against a particular person he is entitled
to do
so, not because that person is deemed to know that he is the owner, but
because he is in fact the owner by virtue of the registra=
tion of his right of
ownership - - - -Knowledge of a servitude on the part of a buyer is material
only when the servitude has not
been registered."
/In
35
In our law servitudes are classified as personal
or praedial. In regard to land, a personal servitude is constituted over a
servient
tenement in favour of a particular individual (
res servit
personae
) whereas a praedial servitude is established over a servient tene=
ment for the benefit of a dominant tenement (
res servit rei
). It is the
existence or non-existence of a dominant tenement which is the decisive factor
in differentiating between personal and
praedial servitudes. Vinnius Inst 2.3.2
: Sic autem distinguuntur, non a re, quae servitutem debet, sed ab ea re, cui
debetur. Praediorum
igitur sunt, quae debentur, praediis; personarum, quae
personis.
/The
36
The normal procedure for the registration of servitudes in a
transfer of land in the Deeds Office is to embody the terms of the servitude
with a descrip= tion of the servitude holder (personal servitude) or the
dominant tenement (praedial servitude) in the title deed
of the servient
tenement. As a matter of conveyancing and for convenience the existence of the
registered praedial servitude is endorsed
úpon the title deed of the
dominant tenement. See
Van Vuuren & Others v Registrar of Deeds
,
1907
T.S. 289
at p 295,
Worman v Hughes & Others
, 1948(3) SA 495 (AD) at p
501
in fine
- 502. If the servitude was acquired by means of a
notarial
/deed ....
37
deed the latter is registered in the Register of Servitudes
but such registration does not constitute the servitude in law. It is
the
registration of the servitude in the title deed of the servient tenement that
constitutes the servitude in law.
Willoughby's Consolidated Co Ltd v Copthall
Stores Ltd
.,
1918 AD 1
at p 16.
In one very important aspect the registration of restrictive title conditions
in the title deed of an erf as a servient tenement in
a township differs from
the normal procedure for the registration of servitudes over land, viz. the
title deed of the servient
/tenement ...
38
tenement incorporates those restrictive title con= ditions
applicable to it as a servient tenement
without any mention of the person or
the dominant erf or erven in whose favour they are constituted
. (
Ex Parte
Jerrard
,
1934 WLD 87
at p 95
in fine
, 1960 Tydskrif vir Hedendaagse
Romeins-Hollandse Reg p 176). This also appears from the title deeds of erven
184 and 42 (Annexures
"B" and "C" respectively) in the present matter. Where the
registered restrictive title conditions are personal servitudes they will
normally be constituted in favour of the township owner, as was held in
Ex
Parte Jerrard
,
supra
, p 96 to be the case with restrictive title
condition(e) in that case. Where
/the
39
the registered restrictive title conditions are, however,
praedial servitudes each erf becomes simul= taneously both a servient tenement
and a dominant tenement. It is a servient tenement encumbered by the restrictive
title conditions in its own title deed in favour
of
all
the other erven
as dominant erven. But it is also a dominant tenement in respect of the
restrictive title conditions inserted in
the title deeds of
all
the other
erven as servient tenements. Compare
Ex Parte Johannesburg Diocesan
Trustees
,
1936 T P D 21
at p 26,
Cannon v Picadilly Mansions (Pty)
Ltd
,
1934 W L D 187
at p 191. This result flowed from
/the
40
the circumstance that it was an important element of the
general scheme, relating to the sale of erven and the establishment of the
township, to insert the restrictive title conditions in all the title deeds of
erven in the township for their reci= procal benefit
in order to preserve the
essential character of the township. It was a matter of inter= pretation to
establish whether the restrictive
condi= tions were made pursuant to a general
scheme for the reciprocal benefit of the erven. In general the object in
imposing the
restrictive conditions had to be gather= ed from all the
surrounding circumstances of the case,
/including
41
including the nature of the restrictive title conditions. A
practical difficulty that often presented itself was the lack of documentary
evidence regarding a general scheme and the imposition of the restrictive title
conditions. In these circumstances our Courts often
had regard , to the four
points mentioned in
Elliston v Reacher
,
supra
, because they were
of practical assistance as a guide to the resolution of the problem without
adopting the principle of English
law which was derived from an application of
the four points. (
Norbreck (Pty) Ltd v Rand Townships Registrar
,
1948 (1)
SA 1037
(W) at p 1040
in fine
). It was especially
/the
42
the fourth point formulated by PARKER J which was applied by
our Courts. See e.g.
Eiffel Mansions (Pty) Ltd v Cohen
,
1945 WLD 200
at p
205,
Ex Parte Will G Hare (Pty) Ltd
,
1958 (4) SA 416
(C) at p 419 B.
Ordinance No 11 of 1931 (T) introduced some important innovations. Great
importance is attached to town planning and development as
appears from secs 11,
13, 14 and 15. Upon receipt of an application for permision to establish a
township the Administrator is to
refer it forthwith to a Townships Board. The
latter is to publish a notice in the
Gazette
and a local newspaper
stating
/that
43
that the application with its plans and documents is at the
office of its secretary open to inspection by members of the public who
are
invited to make recommendations. The Townships Board is required to visit the
site of the proposed township and to report to
the Administrator on such matters
as the need or desirability of establishing the township, the suitability of the
site, the suitability
or otherwise of the proposed design or lay-out of the
proposed township, the allocation of areas or zones within the proposed township
for residential,
/commercial
44
commercial, industrial or other purposes, the
conditions
recommended to be imposed by the
Administrator should he grant the
application etc.
It is evident that the purpose of town planning
and
development is to control, co-ordinate and harmonize
the development
of the township area. In
Palm Fifteen
(Pty) Ltd v Cotton Tail Homes (Pty) Ltd
, 1978 (2) SA
872 (AD) MILLER J A held at p 888 G:
" - - - that the fundamental purpose of conditions of establishment of a
township is to ensure the orderly development of such township,
with due regard
to essen= tial services and facilities in the interests of sound local
government and control and, of course, in
the interests of the future residents
thereof. The last-named object
/was
45
was clearly stated by SCHREINER J A
in
Estate Breet v Peri-Urban Areas Health
Board
, 1955(3) SA 523 (A) at p 531 F-G :
'The Ordinance ( ie Ord. 11 of 1931 (T) ) provides for the establishment of a
town= ship by the carrying out of a series of steps
designed to protect the
interests not only of the applicant but also of persons who will be acquiring
property in the township and
who will become its residents and the users of its
amenities'."
After having approved the application the Administrator
by Proclamation in
the
Gazette
declares the township
an approved township and in a
schedule to the Pro=
clamation he sets forth the conditions upon which
/he
45(a)
he granted the application viz conditions of establish= ment and conditions
of title. The conditions of establishment thereupon acquire
statutory force.
(
Peri-Urban Areas Health Board v Breet N O and Another
,
1958 (3) SA 783
(T) at p 787 A-B.) The conditions of establishment impose obligations upon the
township owner which he must perform. When he transfers
an erf in the township
to a purchaser he is obliged by law to impose the restrictive title conditions
relating to that erf that have
been prescribed in the schedule to the
Proclamation. Upon registration of the title deed of an erf its restrictive
title
/conditions
46
conditions become registered servitudes. In Ex
Parte
Gold
,
1956 (2) SA 642
(T) RAMSBOTTOM J
held at p 647 B-C :
"When the township-owner transfers a lot in the township to a purchaser, he
is obliged by law to impose the restrictive conditions
that have been prescribed
in the proclamation, and he has done so in the present case. Nonetheless, when
transfer has been passed,
I think that the restrictive conditions are servitudes
just as they would have been if they had been imposed by the vendor of his
own
accord. They can be enforced as such by the vendor himself, and when they enure
for the benefit of other lot-holders they can
be enforced by such other
lot-holders."
Prima facie
these registered servitudes will in general
be praedial in nature and enure for the benefit of all
/other
47
other erven in the township unless there are indi= cations to
the contrary. They run with the land. The fourth point mentioned in
Elliston
v Reacher
,
supra
, has virtually become superfluous because the
restrictive title conditions are imposed not only in the public interest for the
purpose
of town planning and de= velopment but also to enure for the benefit of
all erven in the township. It was rightly not sugges= ted
in argument that they
were personal servitudes. From a careful study of the Conditions of Title
imposed for the township of Spartan
they are in my
/judgment
47 (a)
judgment praedial servitudes. From the circumstance
that the township of
Spartan is a mixed township in
the sense that it is comprised predominantly
of
industrial erven with a few business erven it does
not follow that each
erf did not become a servient
tenement in respect of all the other erven as
dominant
tenements while each erf is in turn a dominant tenement
in
respect of all the other erven. Compare
Davies v
Umtali Board &
Paper Mills (Pty) Ltd & Another
,
1975 (2) SA 467
(R, AD) at p 471 A-D per
LEWIS A J P :
/"The
48
"The establishment of a township in terms of Part III of the Act is only
approved after careful town planning consideration has beên
given to the
development of the area as a whole and, in particular, to the number of business
sites which will be required to serve
the needs of the inhabitants of the
township for the foreseeable future. The pur= chaser of a business site is
entitled to assume,
therefore, that compe= tition will be limited and that the
owner of a residential lot in the township, who has paid considerably
less for
his piece of land than the owner of the business site, will not readily be
permitted to con= vert it into a business site
and set up a business in the
township."
/It
49
It follows in my judgment that the respondent has
locus
standi in judicio
to enforce observance by the appellants of the restrictive
title conditions in the title deed of erf 42 which belongs to the first
appellant.
Mr Nochumsohn
also argued that the business activities of the second
appellant on erf 42 did not amount to an unlawful contravention of Condition
B
7(a) of the Conditions of Title (registered in the title deed of erf 42 as
restrictive condition (i)), since the
/Town
50
Town Council of Kempton Park had in writing (Annexure
"J") granted its approval in terms of Condition B 7(a)
to the conduct of
such business activities. Annexure
"J" is a letter, dated 19 December 1985, which the
City Engineer wrote to
the attorneys of the appellants.
Its relevant statements are the following
:
"Toestemming vir die bedryf van voedsel= voorsiening is aan Mr Spartan
Take-Away verleen omdat hy sodanige toestemming van die Raad
in terme van Item
7(a)(ii) van die Stigtingsvoorwaardes van Spartan ('n afskrif hierby aangeheg)
benodig.
In terme van die Kempton Park Dorpsaanleg= skema 1/1952 is die erf vir
Spesiale Nywer= heidsdoeleindes gesoneer en is die gebruik
van die grond vir
besigheidsgeboue en winkels die eienaar se primêre reg ('n Afskrif van die
betrokke gedeelte van Tabel "C"
word aangeheg)."
/As
51
As regards the second paragraph of the letter it must be borne
in mind that a Town Planning Scheme does not overrule registered restrictive
conditions in title deeds. Moreover, a consent by a local authority in terms of
a Town Planning Scheme does not
per se
authorize the user of an erf
contrary to its registered restrictive title conditions. See
Ex Parte Nader
Tuis (Edms) Bpk
, 1962(1) SA 751 (T) at p 752 B-D;
Kleyn v Theron
,
1966(3) SA 264 (T) at p 272;
Enslin v Vereeniging Town Council
, 1976(3)
SA 443 (T) at p 447 B-D. I have quoted the relevant portion of Condition B7
supra
. The dominant provision of
/Condition
52
Condition B7 is that an erf is to be used solely for such
industrial purposes
as the local authority may approve of in writing and
for purposes incidental there= to but notfor other purposeswhatever.
Furthermore,
no retail trading of any description may be conducted thereon save
as provided in sub-clause (ii) thereof. The words 'purposes incidental
thereto'
are then defined in Condition B7 and according to sub-clause (ii) the
owner
of the erf may dispose of goods manufactured on the erf 'or any other goods'
permitted in writing by the local authority. It is clear
that sub-clause (ii)
makes provision for a qualified permissive right to conduct
/a
54
Lastly,
Mr Nochumsohn
, relying on the decision of
Patz v Greene & Co
,
1907 T.S. 427
at p 437, con= tended that the
respondent failed to establish that the infringement by the second appellant of
Condition B7 caused
him damage or injury. That case (which turned on the
wrongful interference with the applicant's right to trade without wrongful
interference
on the part of the respondent who traded illegally in contravention
of a statute), is clearly distin= guishable from the present
case. In the
present case the respondent's right is clear, viz a registered servitude, and
the second appel=
lants activities constitute an unlawful infringement
/thereof
53
a retail trade on the erf in respect of goods manu= factured
on the erf 'or any other goods'. This qualified permissive right to trade
is not
general but circumscribed. It is also subservient to the dominant provision of
Condition B7. The words 'or any other goods'
must be given a restrictive
meaning, that is to say, they should be connected or associated with industrial
purposes or activities.
Condition B7 clearly did not confer on the Town Council
of Kempton Park the fight to authorize the conduct of a retail food supply
business by the second appellant on erf 42. The argument is therefore unsound
and must be rejected.
/Lastly
55
thereof. In a long line of cases our Courts have in similar
instances granted prohibitory interdicts to protect registered servitudes
against the continuance of the unlawful infringement, as well as the perpe=
tration of future infringements, without proof of damage
or injury. See e.g.
Alexander v Johns
,
supra
, p 446;
Wyndham & Others v
Rubinstein & Another
,
1935 C P D 364
at p 378;
Cannon v Picadilly
Mansions (Pty)
Ltd. ,
supra
;
Van Wyhe v Nothnagel
, 1951(3) SA
815 (N) at p 817;
Smit v Creeser
, 1948(1) SA 501 (W);
Siegfried v
Tidswell & Another
, 1952(4) SA 319 (C);
Hall v McKie and Another
,
1953(4) SA 350 (N). The
/contention
56
contention is untenable and cannot be sustained.
In the result the appeal is dismissed with costs. The costs are payable by
the appellants jointly and severally, the one paying the
other to be absolved.
The costs of the cross-appeal are payable by the respondent.
C P JOUBERT JA.
SMALBERGER JA )
NESTADT JA )
NICHOLAS AJA ) Concur.
STEYN AJA )