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[2020] ZASCA 130
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Seale and Others v Minister of Public Works and Others (899/2019) [2020] ZASCA 130 (15 October 2020)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 899/2019
In
the matter between:
KINGSLEY
JACK WHITEAWAY
SEALE FIRST
APPELLANT
ONTSPAN
BELEGGINGS (PTY)
LTD SECOND
APPELLANT
HI
FRANK COMPONENTS (PTY)
LTD THIRD
APPELLANT
SCHOEMANSVILLE
OEWERKLUB FOURTH
APPELLANT
and
MINISTER
OF PUBLIC
WORKS FIRST
RESPONDENT
MINISTER
OF WATER AND SANITATION SECOND
RESPONDENT
PREMIER
OF THE NORTH-WEST PROVINCE THIRD
RESPONDENT
TRANSVAAL
YACHT
CLUB FOURTH
RESPONDENT
REGISTRAR
OF DEEDS,
PRETORIA FIFTH
RESPONDENT
Neutral
citation:
Seale
and Others v Minister of Public Works and Others
(899/2019)
[2020] ZASCA 130
(15 October 2020)
Coram:
PONNAN,
ZONDI, DAMBUZA and VAN DER MERWE JJA and WEINER AJA
Heard:
7
September 2020
Delivered:
This
judgment was handed down electronically by circulation to the
parties' representatives by email, publication on the Supreme
Court
of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 10h00 on 15 October 2020.
Summary:
Contract
– agreement to agree – unenforceable in absence of
deadlock-breaking mechanism.
Acquisitive
prescription – of servitude under Prescription Act 18 of 1943 –
proof required of actual use of servitude
as if of right continuously
for 30 years.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Davis J sitting as court of
first instance):
1 The appeal is dismissed
with costs, including the costs of two counsel.
2 The costs order of the
court a quo is substituted with the following:
‘
(a) The first,
third and fourth applicants are jointly and severally ordered to pay
the costs of the second respondent, including
the costs of two
counsel;
(b) The second respondent
is ordered to pay the costs of the second applicant, including the
costs of two counsel;
(c) The applicants are
jointly and severally ordered to pay the costs of the fourth
respondent, including the costs of two counsel.’
JUDGMENT
Van
der Merwe JA (Ponnan, Zondi, Dambuza JJA and Weiner AJA concurring)
[1]
The Hartbeespoort area is a popular destination for spending holidays
and leisurely weekends. Its central attraction is the
Hartbeespoort
Dam (the Dam). The Dam was built by the government of the Union of
South Africa (the Union Government) during the
early part of the
previous century. Its legal successor, the national government of the
Republic of South Africa (the State), owns
a narrow strip of land on
the eastern bank of the Dam between the waterline and the boundaries
of the adjacent properties. These
properties include erven in the
Schoemansville and Meerhof townships. This strip of State land has at
least since 1925 been referred
to as the foreshore. The appeal
concerns servitudal rights of access over the foreshore for purpose
of boating and fishing on the
Dam.
[2]
The first appellant is Mr Kingsley Jack Whiteaway Seale. He is a
director of both the second appellant, Ontspan Beleggings (Pty)
Ltd
and the third appellant, HI Frank Components (Pty) Ltd. Each of the
appellants own properties that are situated adjacent, or
in close
proximity, to the foreshore. The fourth appellant is the
Schoemansville Oewerklub, a voluntary association that acts in
the
interest of its members. The majority of its members are registered
owners of erven in Schoemansville.
[3]
The appellants launched an application in the Gauteng Division of the
High Court, Pretoria for orders declaring and enforcing
servitudal
rights over the foreshore. The second respondent, the Minister of
Water and Sanitation, opposed the application on behalf
of the State.
The fourth respondent, the Transvaal Yacht Club, a voluntary
association that owns property adjacent to the foreshore,
also
opposed the application. The court a quo (Davis J) dismissed the
application, but granted leave to the appellants to appeal
to this
court.
Background
[4]
The history of the matter spans more than a century. The following
exposition suffices for a proper understanding of this judgment.
At
the time when the Union Government determined to construct the
Dam (then referred to as the Hartebeestpoort Reservoir),
the Schoeman
family owned portions of the freehold farm Hartebeestpoort nr 498 in
the district of Pretoria. The Crocodile River,
which would be the
main source of water for the Dam, traversed the original farm.
Mr Johan Hendrik Schoeman and
members of his family
were the co-owners of the land known as the northern portion of the
farm Hartebeestpoort. Mr Schoeman was
the owner of an adjacent farm
referred to as a certain portion of the south-eastern portion of the
farm Hartebeestpoort. Parts
of these two portions of land would be
submerged by the Dam.
[5]
In the light hereof, on 25 January 1918, the Union Government,
represented by the Minister of Lands, and the owners of the aforesaid
portions of the farm Hartebeestpoort, represented by Mr Schoeman,
entered into an agreement of sale (the 1918 agreement).
In
terms thereof the Union Government purchased the portions of the
aforesaid tracts of land from the Schoeman family that would
be
submerged by the Dam. The eastern boundary of the land purchased was
determined to be a line running three feet above the projected
high
flood level of the Dam.
[6]
The land in question was subdivided accordingly and the portions
thereof that became the property of the Union Government presently
consists of three titles. These adjoining properties are presently
described as the following portions of the farm Hartbeestpoort:
the
remaining portion of portion 28, measuring 474,6058 hectares (portion
28); the remaining extent of portion 29, measuring 231,4418
hectares
(portion 29); and portion 59 (a portion of portion 29),
measuring 2,0296 hectares (portion 59). They vest in the
State as the
legal successor of the Union Government.
[7]
After the subdivision, Mr Schoeman retained ownership of the
remainder of the portion of the south-eastern portion and shortly
afterwards also acquired ownership of the remainder of the northern
portion. The boundary between Mr Schoeman’s land and
the State
land therefore ran above the actual (fluctuating) waterline of the
Dam. As I have said, this strip of land is referred
to as the
foreshore and has to be traversed to gain access to the Dam from the
east.
[8]
Clause 3(k) (clause K) of the 1918 agreement provided for the
retention of rights of access to the Dam in the following terms:
‘
The said Johan Hendrik Schoeman
in his individual capacity or his assigns shall retain the right of
access to the said Hartebeestpoort
Reservoir on certain three places
to be mutually agreed upon by the parties to these presents –
the said places being situated
approximately as follows: (a) near the
south eastern entrance to Hartebeestpoort on the eastern bank of the
River, (b) near the
site of the old dam on the Crocodile River built
by the now late General Schoeman, and (c) at a suitable site in the
Zwartspruit
Valley – for the purpose of boating on the said
reservoir and fishing therein, provided that the said Schoeman or his
assigns
shall at all times be subject to all general regulations and
restrictions that may be framed and at any time come into force in
connection with the said reservoir and the use thereof by the public,
provided that such regulations shall be of general application
and
that the said Schoeman or his assigns shall not be prevented from
reasonably using the said reservoir for the said purposes
unless and
until the water of the said reservoir may at any time be required for
domestic purposes and the public are excluded
from access to the
Reservoir when the rights hereby granted to the said Schoeman shall
cease and determine until such time as such
restrictions are
withdrawn. It is further understood and agreed that if in regards to
the operations to be undertaken in connection
with the said reservoir
the actual sites marked on the last mentioned diagrams or any of them
should be required for the purposes
aforesaid that then and in that
case a suitable site as near as possible to the original site shall
for the purposes aforesaid
be granted to the said Schoeman in his
individual capacity who shall have the right of selecting such site
or sites – which
shall not interfere with the working and works
of the Reservoir.’
[9]
For reasons lost in time, the parties never agreed upon the precise
locations of the ‘three places’. Mr Schoeman
nevertheless
desired the registration of these rights. After correspondence had
been exchanged, the Union Government during 1922
entered into a
notarial contract with Mr Schoeman (the notarial contract). It
recorded the 1918 agreement, reproduced clause
K and proceeded
as follows:
‘
WHEREAS it is desired to have
the right so reserved in Clause K registered in the Deeds Office, but
as the Government will hold
that area which will form the submerged
area of the said Hartebeestpoort Reservoir under a great many titles,
some portions of
which have not yet been acquired by the Government.
NOW THEREFORE, the parties hereto
agreed to register this Contract in the Deeds Office in the Register
known as the Register for
Diverse Acts, whereby the rights granted to
the Party of the other part, the said
JOHAN
HENDRIK SCHOEMAN
, in his
individual capacity, or his Assigns, and more fully detailed in
Clause K above set out in full, may be recorded and registered
in
favour of the said
JOHAN
HENDRIK SCHOEMAN
, in his
individual capacity or his Assigns, against the said submerged area
of the Hartebeestpoort Reservoir, subject to the conditions
that when
and soon as the Government has acquired the whole of the area which
will form the submerged area of the Hartebeestpoort
Reservoir, and
has taken out a Certificate of Consolidated Title of such area; the
parties hereto, their Successors in Title or
Assigns, bind themselves
to enter into a Contract whereby the rights as detailed in said
Clause K of the said Deed of Sale, may
be properly registered as a
servitude against the Titles of the servient and dominant tenements
respectively.’
[10]
It is apparent that the notarial contract envisaged two
registrations. The first was the registration of the notarial
contract
itself in the Register of Diverse Acts. The second was the
registration of a servitude. The first registration took place on 3
October 1922. The second did not take place. Although the Union
Government and its successors for many years afterwards expressed
the
intention to acquire the titles of the area submerged by the Dam, the
State at some stage decided not to do so. It therefore
did not take
out the certificate of consolidated title envisaged in the notarial
contract.
[11]
It appears that Mr Schoeman was an entrepreneur of note. During 1923
he established the Schoemansville Township. It was established
on the
remainder of the northern portion adjacent to portion 28. The title
deeds of all the erven in Schoemansville contain the
following
clause:
‘
All registered erf-holders
shall be entitled in common with JOHAN HENDRIK SCHOEMAN, his
Successors in Township Title or Assigns,
to the right of access to
the dam near the South- eastern entrance to Hartebeestpoort on
the Eastern-Bank of the Crocodile
River, for the purpose of boating
on the said reservoir and fishing therein, subject to the conditions
of Notarial Agreement No.
99/1922M, dated the 27th day of September,
1922, filed in the Deeds Office. . . .’
[12]
During 1935 Mr Schoeman also established the township of Meerhof.
Meerhof is situated adjacent to portions 29 and 59. The title
deeds
of the erven in Meerhof contain a similar provision in respect of
access to the Dam:
‘
All registered erfholders in
the Township shall be entitled in common with the Applicant, his
successors in Township Title or Assigns
to the right of access to the
Lake at the southern end thereof near the late H.J. Schoeman’s
old dam known as Sophia’s
Dam (now adjoining Schoemansville
Station ) on the Eastern Bank of the Crocodile River for the purpose
of boating in the said lake
and fishing therein subject to the
conditions of the Notarial Agreement No. 99/1922M, dated the 27th
September 1922, and filed
in the Deeds Office. The owners of business
erven Nos. 89, 90, 164 and 165 however, shall be entitled to ply
boats for hire on
the Lake, as from the abovementioned access.’
[13]
In the meantime, Mr Schoeman persuaded the Union Government to
retransfer a portion of the land that had been transferred pursuant
to the 1918 agreement, to him. The decision of the Union Government
was taken on 10 October 1925 and was recorded in Cabinet Minute
3125
(the Cabinet Minute). In terms thereof, the following was approved:
‘
1. The grant to JOHAN HENDRIK
SCHOEMAN of certain piece of land being Portion No. 1 of Portion L of
the Northern portion of the
farm Hartebeestpoort No. 498, District
Pretoria, measuring 476 square roods, together with the right to use
the foreshore immediately
in front of the said land and between it
and the Hartebeestpoort Lake, subject to rights of access to the said
foreshore in favour
of the Government of the Union of South Africa
and its servants.
2. The grant of a right of user in
favour of the TRANSVAAL YACHT CLUB in respect of the foreshore
immediately in front of Stands
Nos. 117 and 118 of Schoemansville
Township and between the said Stands and the Hartebeestpoort Lake.
Subject, however, to rights
of access in favour of the Government of
the Union of South Africa and its servants.
3. The reservation of the foreshore
adjoining the Hartebeestpoort Lake extending from Stand No. 121 to
the corner of Tolstoi Street
and Lakeside Avenue of Schoemansville
Township as a landing place for the general public and persons plying
for hire with boats
on the Hartebeestpoort Lake, other than
standholders in the Schoemansville Township, the owner for the time
being of the piece
of land referred to in paragraph (1) above and the
Transvaal Yacht Club referred to in paragraph (2) above, subject
to rights
of access in favour of the Government of the Union of South
Africa and its servants.
4. The reservation of the foreshore
adjoining the Hartebeestpoort Lake extending from the corner of
Tolstoi Street and Lakeside
Avenue to Riekert Street of
Schoemansville Township, as a landing place for the owners of Stands
in Schoemansville Township other
than the owner for the time being of
the piece of land referred to in paragraph (1) above and the
Transvaal Yacht Club referred
to in paragraph (2) above, subject to
rights of access in favour of the Government of the Union of South
Africa and its servants.’
[14]
Paragraph 1 of the Cabinet Minute was given effect to by Crown Grant
67 of 1926 (the Crown Grant). It was registered in the
Deeds Office
on 1 April 1926. In terms thereof Mr Schoeman received transfer of a
piece of land, measuring some 48 hectares, presently
known as portion
43 of the farm Hartebeestpoort (portion 43). It does not form part of
the Schoemansville Township. The Crown Grant
also provided for access
to the Dam, as follows:
‘
The owner of the land hereby
granted shall be entitled to the free use of the foreshore
immediately in front of it, and between
it, and the Hartebeestpoort
Lake as indicated on the Diagram S.G. No. A.1936/25. . . .’
This
servitude was duly endorsed on the title deed of the servient
tenement, presently portion 28.
[15]
The fourth respondent was established on 23 February 1923. It was a
condition of the grant of portion 43 to Mr Schoeman that
he would
donate erven 117 and 118, Schoemansville to the fourth respondent.
These erven were duly transferred to it. It subsequently
also
obtained ownership of the adjacent erf 119. These three erven have
since been consolidated and are presently known as erf
1113
Schoemansville. The rights that had been approved in terms of para 2
of the Cabinet Minute were registered as a servitude
against the
title deed of the servient tenement, in favour of the fourth
respondent’s land.
[16]
Lakeside Avenue in Schoemansville is presently known as Waterfront
Street. During the early 1980’s a bird sanctuary was
established on parts of the foreshore referred to in paragraphs 3 and
4 of the Cabinet Minute. The relative locations of the adjacent
properties that I have referred to can be pictured as follows. Moving
roughly from west to east, one would traverse the foreshore
in this
order: in front of portion 43; in front of erf 463, Schoemansville
(erf 463); in front of erf 1113, Schoemansville; from
in front of erf
121, Schoemansville to the western boundary of the bird sanctuary;
the bird sanctuary itself; and from the eastern
boundary of the bird
sanctuary to in front of the corner of Riekert Street and
Waterfront Street in Schoemansville.
[17]
The first appellant established the Hartbeespoort Snake and Animal
Park on portion 43 during 1962. In 1964 he extended his
operation to
the adjacent erf 463, with the permission of the owner thereof, Mr
Schoeman. During 1965 Mr Schoeman donated erf 463
to the Peri-Urban
Health Board. The first appellant leased erf 463 from it. During 1973
the first appellant obtained the shareholding
in the second appellant
and the second appellant obtained transfer of portion 43. And in 1982
the Peri-Urban Health Board
transferred erf 463 to the
first appellant.
[18]
As I have said, erf 1113 adjoins erf 463. In terms of various
successive lease agreements, the fourth respondent has since
1969
leased not only the foreshore in front of its property but also
approximately two thirds of the foreshore in front of erf
463. The
fourth respondent effected significant improvements to the foreshore,
to facilitate access to the Dam for yachting. The
fourth respondent’s
use of the foreshore in front of erf 463 was and remains a major bone
of contention. One of the principal
purposes of the appellants’
application was to limit the fourth respondent to the use of the
foreshore in front of the fourth
respondent’s property.
[19]
The first appellant also owns a residential property in
Schoemansville (erf 297), as well as erven 89, 90, 164 and 165 in
Meerhof. Erf 90 adjoins portion 59 and the other erven are situated
adjacent to portion 29. The third appellant is the owner of
erf 1132
in Schoemansville. It is situated opposite erf 463, which lies
between it and the foreshore.
[20]
In the court a quo the first, third and fourth appellants essentially
claimed an order directing the State to take all steps
necessary to
register praedial servitudes of access to the Dam for purposes of
boating and fishing, as follows: (a) over portion
28 in favour of the
land on which the township of Schoemansville had been established
(that is all the erven in Schoemansville),
in accordance with
the aforesaid provision in the title deeds of these erven; (b) over
the foreshore in front of erf 463, in favour
of erf 463; (c)
over portion 29 in favour of the land on which the township of
Meerhof had been established (that is all the
erven in Meerhof), in
accordance with the aforesaid provision in the title deeds of these
erven; and (d) over portion 59, in favour
of erf 90, Meerhof. Thus,
the place of access envisaged in para (c) of clause K is not directly
relevant to the matter. The second
appellant, in essence, sought a
declarator that it is entitled to free use of the foreshore in front
of portion 43, subject to
the rights of the State.
Analysis
[21]
It is apparent that the case of the second appellant was very
different to that of the other appellants. Unless indicated
otherwise, I henceforth refer to the first, third and fourth
appellants collectively as the appellants and to the second appellant
as Ontspan Beleggings. I commence with a consideration of the appeal
of the appellants. They contended that they were entitled
to the
enforcement of contractual rights to registration of the servitudes,
alternatively that they had acquired the servitudes
by acquisitive
prescription.
[22]
It is trite that a servitude is a right to use the property of
another in a particular manner. The right may be attached to
a
particular (dominant) tenement (praedial servitude) or to a
particular person (personal servitude). Both are real rights
that
come into existence upon their registration in the Deeds Office. A
personal right to claim the registration of a servitude
(praedial or
personal) may, of course, arise from an agreement. Whether or not an
agreement provides for the right to the registration
of a servitude,
and whether such servitude would be praedial or personal, depends on
an interpretation of the particular agreement
in accordance with the
ordinary well-known rules of construction. See
Willoughby’s
Consolidated Co Ltd v Copthall Stores Ltd
1918
AD 1
at 16.
[23]
The appellants contended that the rights to obtain the registration
of the servitudes emanated from clause K on its own, or
clause K
together with the notarial contract. A personal servitude held by a
natural person inevitably terminates when that person
dies. See AJ
van der Walt
The
Law of Servitudes
(2016) at 565-566. Mr Schoeman passed away in 1967. It follows
that the contractual case was entirely dependent thereon that
Mr
Schoeman had obtained the right to the registration of a praedial
servitude. It is trite that a praedial servitude is characterised
by
the fact that it attaches to a dominant tenement, regardless of the
identity of the owner thereof from time to time. Therefore
an
agreement cannot give rise to the right to a praedial servitude
without the express or implicit identification of a dominant
tenement.
[24]
Clause K did not grant rights in favour of a dominant tenement. It
provided quite the contrary. The rights were granted to
Mr Schoeman
‘in his individual capacity or his assigns’. Clause K did
not require him to be the owner of any property.
In context the
‘assigns’ meant persons to whom Mr Schoeman in his
individual capacity might have ceded his rights.
I agree with the
fourth respondent that the use of the word ‘or’ instead
of ‘and’ was significant and indicated
that ‘assigns’
did not refer to successors in title. It would make no
sense to grant rights of access to
a person
or
his successors. Insofar as there might be an ambiguity, it should be
resolved by the application of 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, that is, in this case, a personal servitude. See
Kruger v
Joles Eiendomme (Pty) Ltd and Another
[2008]
ZASCA 138
;
2009 (3) SA 5
(SCA) para 8. In my opinion clause K did not
provide the right to a praedial servitude.
[25]
The mere registration of the notarial contract could not alter this
position. The notarial contract, in any event, specified
that the
purpose of the registration of the notarial contract was that the
rights granted in terms of clause K might ‘be
recorded and
registered in favour of the said Johan Hendrik Schoeman, in his
individual capacity or his Assigns, against the submerged
area of the
Hartebeestpoort Reservoir’.
[26]
There are indications that the second part of the notarial contract
might have envisaged the registration of a praedial servitude.
These
are, first, that, other than in clause K and in respect of the
registration of the notarial contract itself, the second part
referred to ‘the parties hereto, their Successors in Title or
Assigns’. Second, it expressly referred to the registration
of
a servitude against the titles of the servient and dominant tenements
respectively. The registration of a servitude was, however,
subject
to a finding that the ‘conditions’ had been fictionally
fulfilled, as the appellants contended. Their reliance
on fictional
fulfilment appears to be tenuous. Even if it is accepted for
argument’s sake that the notarial contract placed
a tacit
contractual duty on the Union Government to take steps to acquire all
the land that had been submerged by the Dam and that
it or its
successor in law took a decision not to acquire the land, the
appellants had to prove that the decision had been taken
with the
intention to avoid the registration of the servitude. See
Lekup
Prop Co No 4 (Pty) Ltd v Wright
[2012] ZASCA 67
;
2012 (5) SA 246
(SCA) paras 7 and 10-11. There was no evidence as to when and why
such a decision had been taken. But, as I shall demonstrate,
none of
the aspects mentioned in this paragraph matters if clause K was an
unenforceable agreement to agree. This is the issue
that I now turn
to.
Agreement
to agree
[27]
In terms of clause K access to the Dam would be obtained at three
places. Only the general location or vicinity of the three
places was
stated. Clause K did not identify the locations of the three places.
They had to be mutually agreed by the parties.
Material elements of
the right of access would therefore only be determined by further
agreement. Thus, there was an agreement
to agree. I accept that there
was an implicit obligation on the parties to negotiate in good faith,
but subject thereto, the further
agreement was entirely dependent on
the will of the parties. Clause K did not contain any provision that
would regulate the position
in the event of failure of the
negotiations in respect of the proper identification of the three
places.
[28]
Our law in respect of the enforceability of an agreement to agree
developed in the following manner. In
Premier
of the Free State Provincial Government and Others v Firechem Free
State (Pty) Ltd.
2000 (4) SA 413
(SCA);
[2000] 3 All SA 247
(A) at 431G-H Schutz JA
said, with reference to earlier authority, that ‘an agreement
that the parties will negotiate to
conclude another agreement is not
enforceable, because of the absolute discretion vested in the parties
to agree or disagree’.
In
Southernport
Developments (Pty) Ltd v Transnet Ltd
2005 (2) SA 202
(SCA);
[2005] 2 All SA 16
(SCA) at 208C-D Ponnan AJA,
writing for the court, held that the
dictum
in
Firechem
is not applicable to a contract that contains what he referred to as
a deadlock-breaking mechanism. By that he meant provisions
that
prescribe further steps to be followed in the event of the failure of
the negotiations.
[29]
Letaba
Sawmills (Edms) Bpk. v Majovi (Edms) Bpk.
[1992] ZASCA 195
;
1993
(1) SA 768
(AD);
[1993] 1 All SA 359
(A) provided an example of such
a deadlock-breaking mechanism. There an option to renew a lease on
the basis that in the event
of the parties failing to agree on the
rental, a market-related rental would be determined by arbitrators,
was held to be enforceable.
Southernport
similarly dealt with an option to lease specified properties (or
agreed portions thereof) ‘on the terms and conditions .
. .
negotiated between the parties in good faith’. The court held
at 211F-G that the enforceability of the option had been
saved by a
provision that should the parties be unable to agree on any of the
terms and conditions, the dispute would be referred
to an arbitrator
whose decision would be final and binding.
[30]
Ponnan AJA referred to the judgment of Kirby P in the Australian case
of
Coal Cliff Collieries (Pty) Ltd v Sijehama (Pty) Ltd
(1991)
24 NSWLR 1
and proceeded to say:
‘
[16] Kirby P then adverted to
three situations. He stated of the first:
“
In many contracts it will be
plain that the promise to negotiate is intended to be a binding legal
obligation to which the parties
should be held. The clearest
illustration of this class will be cases where an identified third
party has been given the
power to settle ambiguities and
uncertainties… But even in such cases, the court may regard
the failure to reach agreement
on a particular term as such that the
agreement should be classed as illusory or unacceptably uncertain: In
that event the court
will not enforce the agreement.”;
of the second:
“
In a small number of cases, by
reference to a readily ascertainable external standard, the court may
be able to add flesh to a provision
which is otherwise unacceptably
vague or uncertain or apparently illusory…”;
and, of the third:
“
Finally, in many cases, the
promise to negotiate in good faith will occur in the context of an
“arrangement” (to use
a neutral term) which by its
nature, purpose, context, other provisions or otherwise makes it
clear that the promise is too illusory
or too vague and uncertain to
be enforceable:…”.
The principles enunciated in
Coal
Cliff Collieries
accord
with our law. The first and third situations alluded to by Kirby P
are covered, respectively, by
Letaba
Sawmills
and
Firechem.
’
[31]
In his majority judgment in
Makate v Vodacom (Pty) Ltd
[2016]
ZACC 13
;
2016 (4) SA 121
(CC) Jafta J said that our common law, as
reaffirmed in
Southernport
, was that an agreement to negotiate
in good faith is enforceable if it provides for a deadlock-breaking
mechanism in the event
of the negotiating parties not reaching
consensus. He, however, also said:
‘
[100]
Whether an agreement to negotiate in good faith is enforceable where
there is no deadlock-breaking mechanism remains a grey
area of our
law. This is because
Firechem
Free State
suggests that it is not enforceable while
Everfresh
suggests otherwise. In
Everfresh
,
Moseneke DCJ said:
“
Were
a court to entertain Everfresh’s argument, the underlying
notion of good faith in contract law, the maxim of contractual
doctrine that agreements seriously entered into should be enforced,
and the value of ubuntu, which inspires much of our constitutional
compact, may tilt the argument in its favour. Contracting
parties certainly need to relate to each other in good faith.
Where there is a contractual obligation to negotiate, it would be
hardly imaginable that our constitutional values would not require
that the negotiation must be done reasonably, with a view to reaching
an agreement and in good faith.”’
[32]
The combined
rationes
decidendi
of
the decisions of this court in
Firechem
and
Sourthernport
are
therefore that an agreement to agree without a deadlock-breaking
mechanism is not enforceable because it is dependent on the
absolute
discretion of the parties and/or because it is too vague and
uncertain to be enforceable. We are bound by these decisions,
of
course, unless we determine that they were clearly wrong. The
appellants did not advance such an argument. I am, in any event,
by
no means convinced that these decisions were wrong. With respect, I
fail to see how a mere agreement to agree (in good faith)
can be
enforced without violation of the fundamental principle that a court
may not make a contract for the parties.
[33]
As I have said, the appellants did not question these principles.
Instead, they attempted to avoid their application by arguing,
on the
strength of
Nach
Investments (Pty) Ltd v Yaldai Investments (Pty) Ltd and Another
[1987] ZASCA 25
;
[1987] 2 All SA 154
(A);
1987 (2) SA 820
(A), that
clause K had contemplated a general servitude. Hefer JA said in
Nach
at 831D-E that it has long been accepted that a servitude may be
constituted either along a specifically agreed route (a definite
or
defined servitude) or generally (simpliciter). He added that in the
latter case the entire servient tenement is subject to the
servitude
and the grantee may select a route provided only that it does so
civiliter
modo
.
As clause K had created the right to a servitude simpliciter, so the
argument went, the identification of the places of access
was
immaterial.
[34]
Both the language and the context of clause K, however, point to an
intention to agree on a definite servitude. The right of
access was
expressly created at three specific places to be selected and
identified by mutual agreement from each of the general
areas
mentioned. It is also apparent from clause K that the locations of
the places mattered to the Union Government. The
fourth
respondent pointed out that clause K provided that should any of the
actual sites marked on diagrams (that is, agreed sites)
subsequently
be required for the operations to be undertaken in connection with
the Dam, ‘a suitable site as near as possible
to the original
site shall for the purposes aforesaid be granted to the said Schoeman
in his individual capacity who shall have
the right of selecting such
site or sites – which shall not interfere with the working and
works of the Reservoir’.
Thus, the parties to clause K did not
agree to a general servitude and merely made reference to a future
agreement because they
contemplated that defined places of access
would eventually be agreed upon. Clause K rather complied with the
description in
Nach
at 831F-G: ‘If the intention is to constitute a specific right
of way, i.e. one which may only be exercised along a specifically
defined route, the agreement is inchoate at least as to a material
term and for that reason it is unenforceable until the route
is
agreed upon’.
[35]
It follows that clause K was unenforceable. That impacted on the
enforceability of the notarial contract and the title deed
provisions. The notarial contract provided that the parties ‘bind
themselves to enter into a Contract whereby the rights
as detailed in
said Clause K of the said Deed of Sale may be properly registered as
a servitude. . .’. In the absence of
further agreement,
therefore, the notarial contract could not have an independent
existence. And in respect of the places of access
the provisions in
the title deeds of the erven in Schoemansville and Meerhof echoed the
wording of para (a) and para (b) of clause
K respectively. Thus, the
unenforceability of clause K was destructive of the enforceability of
the notarial contract and the title
deed provisions.
[36]
The first appellant placed some reliance thereon that, on 6 November
1962, Mr Schoeman had entered into a notarial agreement
in terms
of which he ceded the rights under clause K and the notarial contract
to his sons and that they had subsequently (on 30
August 1992) ceded
these rights to him. The short answer hereto is
nemo plus iuris ad
alium transferre
potest quam ipse habet
; no one can
transfer to another a greater right than he has himself. As I have
said, the rights that had purportedly been ceded,
were not
enforceable. And even on the basis that Mr Schoeman had a personal
servitude, neither he nor his sons could cede rights
that extended
beyond Mr Schoeman’s lifetime. It follows that the
contractual case had to fail.
Acquisitive
prescription
[37]
This brings me to the question of acquisitive prescription. The
effect of s 3 of the State Land Disposal Act 48 of 1961 was
that the
relevant period of prescription had to be completed prior to 28 June
1971. The Prescription Act 18 of 1943 (the 1943 Act)
was repealed by
the
Prescription Act 68 of 1969
with effect from 1 December 1970. The
appellants accepted that the matter was governed by s 2 of the 1943
Act. It provided:
‘
(1) Acquisitive
prescription is the acquisition of ownership by the possession of
another person’s movable or immovable
property or the use of a
servitude in respect of immovable property, continuously for thirty
years
nec vi, nec clam, nec
precario.
(2) As soon as the period of
thirty years has elapsed such possessor or user shall
ipso
jure
become the owner of
the property or the servitude as the case may be.’
[38]
The onus rested on the appellants to prove all these requirements.
See
Stoffberg NO
and Others v City of Cape Town
[2019]
ZASCA 70.
It is not necessary to consider them in detail. I confine
myself to the element of ‘use of a servitude in respect of
immovable
property’. This postulates
de
facto
exercise of a servitude as if of right, by a person and his or her
successors in title for a continuous period of 30 years. See
Bisschop
v Stafford
1974
(3) SA 1
(AD) at 9C.
[39]
As I have said, the appellants claimed the registration of praedial
servitudes in favour of the following properties: all the
erven in
Schoemansville; erf 463; all the erven in Meerhof; and erf 90,
Meerhof. In view of what I have said, this issue must,
of course, be
determined on the basis that no contractual rights to such servitudes
existed.
[40]
It did not appear from the papers when boating and fishing on the Dam
had become viable. The notarial contract was entered
into on 27
September 1922. It recorded that the land that had been purchased in
terms of the 1918 agreement, ‘will form the
submerged area of
the HARTEBEESTPOORT Reservoir which is at present in course of
constructions’. An advertisement of a public
auction of the
proposed Schoemansville erven, to be held on 14 December 1922 in the
town hall in Pretoria, contained images of
the Dam ‘as it
should appear when completed’. As I have said, the
Schoemansville township was formally established
in 1923. In the
circumstances it seems probable that little or no boating and fishing
on the Dam could have taken place prior to
the establishment of
Schoemansville.
[41]
Assuming, nevertheless, that Mr Schoeman in his capacity as the owner
of the remainder of the northern portion, was the predecessor
in
title of the owners of the erven in Schoemansville, the appellants
had to prove that Mr Schoeman and the successive owners of
all the
erven in Schoemansville actually used the foreshore on portion 28 to
obtain access to the Dam as if of right for a continuous
period of 30
years prior to 1971. This was an onerous burden that the evidence
simply did not satisfy. And the evidence told us
nothing about the
use of the foreshore on portion 29 by Mr Schoeman and the successive
owners of the erven in Meerhof. There was
also no evidence as to the
use of the foreshore on portion 59 by the successive owners of erf
90, Meerhof.
[42]
The appellants attempted to show that Mr Schoeman had erected a
landing stage on the foreshore in front of erf 463 for use
in respect
of his passenger boat enterprise. The deponent for the fourth
respondent said that the foreshore in front of erf 463
was too steep
for this purpose and that even when the water level of the Dam was as
low as 16 percent of its capacity, there was
no sign of such a
landing stage or any remains thereof. The first appellant disputed
this, but the dispute cannot on the papers
be resolved in his favour.
The only admissible piece of evidence in this regard was contained in
a contemporaneous letter by the
Surveyor General (Mr Murray) to the
Secretary of Lands dated 10 April 1926. It made quite clear that Mr
Schoeman had erected landing
stages on the adjacent portion 43. As I
have said, the first appellant commenced the use of erf 463 during
1964. There was no evidence
of the actual use of the foreshore in
front of it prior hereto. In the result, the appellants did not show
the acquisition of the
servitudes by prescription.
Second
appellant
[43]
It remains to deal with the declarator claimed by Ontspan Beleggings.
The court a quo erred in saying that no reliance was
placed on rights
that had emanated from the Crown Grant. It therefore failed to
consider Ontspan Beleggings’ case before
it. As I have
demonstrated, the owner of portion 43 is clothed with a registered
praedial servitude of access to the Dam over
the foreshore in
front of it. In this court the second respondent submitted that there
had been no dispute as to the existence
and use of this servitude.
Ontspan Beleggings countered the submission by correctly pointing out
that in the answering affidavit
in the court a quo, the second
respondent had denied that the Crown Grant gave rise to a praedial
servitude. The true position
was repeated in the replying affidavit.
The second respondent did not dispute that in argument in the court a
quo it had adopted
the stance reflected in the answering affidavit.
[44]
In the light of the second respondent’s denial of Ontspan
Beleggings’ rights, the court a quo should have issued
the
declarator that it sought. However, in written and oral argument in
this court, the second respondent unreservedly recognised
the
servitude attached to portion 43. Thus, there was no further need for
the declarator that Ontspan Beleggings had sought.
It is trite
that this court does not decide abstract or academic issues and there
is no reason why we should, in these circumstances,
nevertheless
exercise a discretion to issue a declarator. The second respondent
acknowledged the rights of Ontspan Beleggings
almost at the outset of
the appeal. There should, however, be an order that the second
respondent is liable for the costs of Ontspan
Beleggings in the court
a quo, and not the other way around, as the court a quo ordered.
Conclusion
[45]
There is a final matter that I should mention. It will be recalled
that the Cabinet Minute had approved the reservation
of portions
of the foreshore for landing places for the general public and
the owners of erven in Schoemansville respectively.
As I have said,
parts of both these portions of the foreshore have been taken up by
the establishment of a bird sanctuary. I make
no pronouncement on the
enforceability of these reservations, for two reasons. First, none of
the appellants purported to represent
the general public in these
proceedings and there was a lack of evidence in respect of the
current position in this regard. Second,
in answer to the evidence of
the appellants that the remaining portion of the foreshore reserved
for the Schoemansville title holders
was being used as envisaged in
the Cabinet Minute, the second respondent said that it was irrelevant
to the issues in the case.
In my view, this stance was correct, as no
relief was claimed solely on the basis of para 4 of the
Cabinet Minute.
[46]
In the result the appeal must be dismissed with costs, including the
costs of two counsel. The fourth respondent rightly did
not press for
punitive costs of the appeal. As I have said, however, the order of
the court a quo should be adjusted to provide
that the second
respondent pay the costs of Ontspan Beleggings in the court a quo.
[47]
The following order is issued:
1 The appeal is dismissed
with costs, including the costs of two counsel.
2 The costs order of the
court a quo is substituted with the following:
‘
(a) The first,
third and fourth applicants are jointly and severally ordered to pay
the costs of the second respondent, including
the costs of two
counsel;
(b) The second respondent
is ordered to pay the costs of the second applicant, including the
costs of two counsel;
(c) The applicants are
jointly and severally ordered to pay the costs of the fourth
respondent, including the costs of two counsel.’
_______________________
C
H G VAN DER MERWE
JUDGE
OF APPEAL
APPEARANCES
For
appellants: J L Gildenhuys SC, with her W C Meyer
(Heads
also prepared by E C Labuschagne SC)
Instructed
by: Couzyn Hertzog & Horak Attorneys, Pretoria
Symington
de Kok Attorneys, Bloemfontein
For
2
nd
respondent: M C Erasmus SC, with him H A Mpshe
Instructed
by: State Attorney, Pretoria
State
Attorney, Bloemfontein
For
4
th
respondent: W Trengove SC, with him K Hofmeyr and C
Shongwe
Instructed
by: Bowman Gilfillan Inc., Sandton
McIntyre
van der Post Inc., Bloemfontein