1
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 210/2021
In the matter between:
MARGOT BERZACK APPLICANT
and
HUNTREX 277 (PTY) LTD FIRST RESPONDENT
REGISTRAR OF DEEDS SECOND RESPONDENT
CITY OF CAPE TOWN MUNICIPALITY THIRD RESPONDENT
Neutral citation: Berzack v Huntrex 277 (Pty) Ltd and Others (Case no
210/2021) [2022] ZASCA 17 (21 February 2023)
Coram: PETSE AP, MOL EMELA and PLASKET J JA and
NHLANGULELA and GOOSEN AJJA
Heard: 3 November 2022
Delivered: 21 February 2023
2
Summary: Appeal – application for leave to appeal referred for
argument in terms of s 17(1)( d) of the Superior Courts Act 10 of 2013 –
whether leave to appeal ought to be granted – property law – servitude –
whether a garden servitude registered against the servient tenement for the
benefit of the dominant tenement is a praedial or personal servitude of usus –
whether such servitude is capable of registration in terms of s 66 of the
Deeds Registries Act 47 of 1937.
_____________________________________________________________
ORDER
_____________________________________________________________
On appeal from: Western Cape Division of the High Court , Cape Town
(Meer J, sitting as court of first instance):
1 The application for leave to appeal is granted.
2 The appeal is upheld with costs, including the costs of two counsel.
3 The order of the high court is set aside and replaced with the
following order:
‘The application is dismissed with costs including the costs of two
counsel where so employed.’
_____________________________________________________________
JUDGMENT
_____________________________________________________________
Nhlangulela AJA (Petse AP and Molemela JA concurring):
3
[1] This is an application for leave to appeal referred to court for
argument1 in terms of s 17(2)(d) of the Superior Courts Act 10 of 20132 (the
Superior Courts Act) , and, if successful, for the determination of the appeal
itself. It is a sequel to the refusal of leave by a single judge, sitting in the
Western Cape Division of the High Court, Cape Town (the high court) .
Leave is sought against the decision of the high court delivered on 10
December 2020 in terms of which a praedial servitude registered against the
immovable property of the first respondent , Huntrex 277 (Pty) Ltd (Huntrex
277), in favour of the immovable property of the applicant, Ms Margot
Berzack, was declared to be a personal servitude of usus. The order entitled
Huntrex 277 to demolish the wooden pole fence that exist s on the servitude
area; and to construct its own wooden pole fence , fitted with a gate , on the
eastern and western boundaries of the properties . Further, the second
respondent, the Registrar of Deeds, was directed to rectify Huntrex 277 ’s
title deed to reflect that the servitude in issue is not a praedial servitude but a
personal servitude of usus.
[2] The counter -application of Ms Berzack , in which she sought the
preservation of her praedial rights or the conferment of such rights by
prescription in terms of s 6 of the Prescription Act 68 of 1969 (the
Prescription Act), was dismissed with costs by the high court.
1 The order of this Court granted on 11 May 2021 reads:
‘1. The application for leave to appeal is referred for oral argument in terms of s 17(2) (d) of the Superior
Courts Act 10 of 2013.
. . .’
2 Section 17(2)(d) reads:
‘The judges considering an application referred to in paragraph (b) may dispose of the application without
the hearing of oral argument, but may, if they are of the opinion that the circumstances so require, order
that it be argued before them at a time and place appointed, and may, whether or not they have so ordered,
grant or refuse the application or refer it to the court for consideration.’
4
[3] Only Huntrex 277 took part in this litigation. The second respondent,
the Registrar of Deeds , and third respondent, City of Cape Town , did not
take part both in the high court and this Court.
Admission of further evidence
[4] In addition, Ms Berzack brought before us an application in term s of
s 19(b) of the Superior Courts Act3 for the admission of the further evidence
of Mr Richard James Somerset Moffat (Mr Moffat) and Mrs Margaret Anne
Boag (Mrs Boag) in amplification of her application for leave to appeal.
Although this application was initially opposed by Huntrex 277 , it did not
persist with its opposition before this Court. Thus, nothing more needs to be
said about this application, save to say that in truth, these two affidavits have
no bearing on the merits of the envisaged appeal. Rather, they were filed in
order to bolster Ms Berzack’s application for leave to appeal.
Leave to appeal application
[5] The fate of the application for leave is dependent on proof to the
satisfaction of this Court that the envisaged appeal would have a reasonable
prospect of success or that there is some other compelling reason why the
appeal should be heard as envisaged in s ubsections 17(1)(a)(i) and (ii) of the
Superior Court Act,4 respectively.
3 Section 19(b) reads:
‘The Supreme Court of Appeal or a Division exercising appeal jurisdiction may, in addition to any power
as may specifically be provided for in any other law . . . receive further evidence.’
4 Subsections 17(1)(a)(i) and (ii) read:
(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that —
(a)(i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard, including conflicting
judgments on the matter under consideration;
5
[6] Regard being had to the papers filed in support of the application for
leave and hearing argument by counsel, I am satisfied that the application for
leave passes muster. The appeal raises important questions of law, such as
whether a servitude involving reservation of rights of access to use and
enjoyment of a garden by Ms Berzack , registered against the property of
Huntrex 27 7, is a praedial servitude or a personal servitude of usus and,
therefore, hit by the prohibition located in s 66 of the Deeds Registries Act
47 of 1937 (Deeds Registries Act).5
Background
[7] The facts of this matter are not in dispute. Ms Berzack is the owner of
a residential property which is described as the remainder of erf 3 […],
Constantia. Huntrex 277, too, is the owner of the residential property
described as erf 8 […], a portion of the original erf 3 […], Constanti a. For
convenience, these residential properties will be referred to as the ‘Berzack
property’ and ‘Huntrex 277 property’ respectively. The Huntrex 277
property is the subdivision carved out of the original erf 3 […], which had
been registered in the name of Ms Berzack on 31 December 1970 . At the
time, erf 3[…] was an undivided residential property measuring 833 1m² in
extent. After taking occupation of the property from Mr M M Liebman , Ms
Berzack created a garden westward of the house and to a point beyond
which the property was unused and left in its natural vegetated state. She
went on to delineate that point with a wooden fence to cordon off the area of
the property that was in use and to prevent vagrants from encroaching on it.
5 Section 66 reads:
‘No personal servitude of usufruct, usus or habitatio purporting to extend beyond the lifetime 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.’
6
She extended the wooden fence eastward to the poolside patio to establish a
garden.
[8] Troubled by issues of safety posed by the undeveloped western side of
the property, Ms Berzack took a decision to subdivide the property and sell
the portion that lay unused . Ms Berzack’s intention at the time was to align
the subdivision with the western perimeter of the wooden fence. However,
she was prevented from doing so by a local use ordinance which imposed a
minimum erf size of 4000m². In 1982, Ms Berzack subdivided erf 3[…] into
two separate p ortions resulting in the Berzack property being reduced to
4320m². To keep the garden as part of her property without contravening th e
land use regulations, Ms Berzack was compelled to reserve her rights to the
garden, which had fallen into the subdivided portion, by means of a
servitude. Having identified a willing buyer, Mr A G Wellens, o n 21
September 1983, Ms Berzack transferred erf 8 […] to him , subject to a
praedial servitude which was duly endorsed and registered against the title
deed of erf 8[…] in accordance with the relevant provisions of the Deeds
Registries Act. The terms of the servitude were set out and incorporated in
the deed of transfer in favour of Mr Wellens.
[9] Erf 8 […] was later transferred to two successive other persons at
different times. Ultimately, on 28 February 2017 , the third owner, Mr K W
Sander, transferred the property to Huntrex 277 . At all material times
relevant to the transfers of the Huntrex 277 property, the praedial servitude
that was created by means of a contract concluded between Ms Berzack and
Mr Wellens was endorsed on the successive title deeds. I set out below the
7
express terms of the servitude that is endorsed on the title deed of the
Huntrex 277 property:
‘P. SUBJECT FURTHER to the following conditions contained in said Deed of
Transfer No. T. 3 […]/1983 imposed by MARGOT BERZACK in favour of h erself and
her successors in title as owner of the REMAINDER OF ERF 3 […] CONSTANTIA,
which conditions are as follows:
(a) The property hereby transferred is subject to a servitude area 20 ( TWENTY)
meters wide, The Western Boundary of which shall be parallel to the bounda ry marked
DE on Diagram N. 5253/1981 in favour of the REMAINDER OF ER F 3[…]
CONSTANTIA, held by the said Transferor, MARGOT BERZACK (born ILLMAN)
married out of community of property to Jeffrey Cyril Berzack , under Deed of Transfer
No. 3[…] dated 31st December 1970.
(b) The said servitude shall be subject to the follow [ing] terms and conditions ,
namely:
(i) No wall or fence of any description shall be erected on the servitude
boundary except extension of existing type of fencing (wooden pole fencing).
(ii) The seller shall have the right to plant, control, care for and renew the
existing garden situated within the servitude area more fully described above.
(iii) The seller shall have full right s of access to such servitude area in
fulfilment of the rights hereby granted.
(The term of Seller shall include her Successors-in-Title).’
I pause here to observe that these conditions of title had survived all three
successive transfers from Mr Wellens without being contested.
[10] Mr Wellens filed an affidavit in support of Ms Berzack’s opposition
confirming, in essence, that the reservation of the garden as a praedial
servitude upon the Huntrex 277 property was agreed to between him and Ms
Berzack. He stated further that the agreement was informed by common
intention that the garden would remain on the Huntrex 277 property for the
8
sole and unfettered use of Ms Berzack and any subsequent successors-in-
title of the remainder of erf 3[…], Constantia.
[11] As regards the counter -application, Ms Berzack contended that her
intention and that of Mr Wellens could still be realized by rectification , if
necessary, of clause P of the title deed of Huntrex 277 , by inserting
appropriate terms as shown in bold letters below:
‘P. SUBJECT FURTHER to the following conditions contained in said Deed of
Transfer No. T. 3 […]/1983 imposed by MARGOT BERZACK in favour of herself and
her successors in title as owner of the REMAINDER OF ERF 3 […] CONSTANTIA,
which conditions are as follows:
(a) The property hereby transferred is subject to a servitude area 20 (TWENTY)
meters wide, The Western Boundary of which shall be parallel to the boundary marked
DE on Diagram No. 5253/1981 in favour of the REMAINDER OF ERF 3 […]
CONSTANTIA, held by the said Transferor, MARGOT BERZACK (born ILLMAN)
married out of community of property to Jeffrey Cyril Berzack , under Deed of Transfer
No. 3[…] dated 31st December 1970.
(b) The said servitude shall be subject to the following terms and conditions, namely:
(i) No wall or fence of any description shall be erected on the servitude
boundary to enclose it except extension of existing type of fencing (wooden pole
fencing) on its western side.
(ii) The seller shall have the exclusive right to plant, control, care for and
renew the existing garden situated within the servitude area more fully described
above.
(iii) The seller shall have full and exclusive rights of access to such servitude
area in fulfilment of the rights hereby granted.
(The term of Seller shall include her Successors-in-Title).’
[12] Further alternative relief sought by Ms Berzack in the high court, in
the event of rectification not being successful, was that a praedial right that
9
she had exercised and enjoyed for more than thirty years be conferred on her
and the Berzack property in terms of s 6 of the Prescription Act6 by virtue of
acquisitive prescription.
[13] The high court decided the main application on the issues of whether
the servitude articulated in clause P of the title deed is praedial or personal in
nature and, if it is a personal servitude, whether the wording of clause P is
capable of being rectified so that it may be converted into a praedial
servitude. After considering the elements of a praedial servitude7 and finding
that the element of utilitas8 was lacking , the high court came to the
conclusion that clause P established a personal servitude of usus which could
neither be rectified nor cured by acquisitive prescription, for the reason that s
66 of the Deeds Act prohibited such servitude from being registered by the
Registrar of Deeds.
6 Section 6 reads:
‘. . ., a person shall acquire a servitude by prescription if he has openly and as though he were entitled to do
so, exercised the rights and powers which a person who has a right to servitude is entitled to exercise, for
an uninterrupted perio d of thirty years or, in the case of a praedial servitude, for a period which, together
with any periods for which such rights and powers were so exercised by his predecessors in title,
constitutes an uninterrupted period of thirty years.’
7 24 Lawsa 2 ed para 546, the elements are listed as follows: ‘(a) there must be two tenements belonging to
different owners; (b) the two tenements must be in close proximity to each other (vicinitas); (c) the servient
tenement must be capable of serving the dominant tenement on a permanent basis (perpetual cause); (d) the
servient tenement must enhance the utility of the dominant tenement ( utilitas); (e) no positive obligation
may be imposed on the owner of the servient tenement (passivity); and (f) praedial servitudes are
indivisible.’
8 24 Lawsa 2 ed para 549, utilitas is described as follows: ‘A praedial servitude must offer some permanent
advantage or benefit to the owner of the dominant land qua owner and must not merely serve his or her
personal pleasure or caprice. This is known as the requirement of utilitas (utility). It has already been
intimated that utility is a fundamental requirement embodying both vicinity and permanent purpose . . . The
strict view that benefit to the dominant tenement must take the form of some sort of agricultural advantage,
was already relaxed in Roman -Dutch law. Voet states that where additional benefits accompany the
pleasurable pursuits of a particular person, such servitude can validly be constituted as a praedial servitude.
Examples are a servitude of view (prospectus) which simultaneously guarantees a free and useful supply of
light . . . In present day law it is accepted that the utility requirement is not only satisfied if the particular
servitude is of direct agricultural utility to the dominant tenement but also if it increases its economic,
industrial or professional potential.’
10
[14] The high court also found that it was appropriate that the title deed of
the Huntrex property be rectified by substituting the original clause P with a
new clause that had been proposed by Huntrex 277, which reads:
‘P. SUBJECT FURTHER to the following conditions imposed by the Transferor in
favour of herself personally, which conditions are as follows:
(a) The property hereby transferred is subject to a servitude area 20 (twenty ) metres
wide, the Western boundary of which shall be parallel to the boundary marked DE on
Diagram No. 5253/1981 of the Remainder of Erf 3 […] Constantia, held by the said
Transferor, Margaret Berzack (born Illman) married out of community of property to
Jeffrey Cyril Berzack under Deed of Transfer No. 3[…] dated 31st December 1970.
(b) The said servitude shall be subject to the following terms and conditions, namely:
(i) [deleted]
(ii) The Transferor shall have the right to plant, control, care for and renew the
existing garden situated within the servitude area more fully described above.
(iii) The Transferor shall have full rights of access to such servitude area in
fulfilment of the rights hereby granted.
P bis: SUBJECT FURTHER to the following cond ition imposed by the aforesaid
Transferor in favour of the aforesaid Remainder of Erf 380 Constantia, namely, that no
wall or fence of any description shall be erected on the aforesaid servitude area except
extension of existing type of fencing (wooden pole fencing).’
[15] It is worth noting that the rectification of the servitude on the terms
that were proposed by Huntrex 277 was designed to convert the original
praedial servitude into a personal servitude.
Appeal
[16] The appeal against the judgment of the high court is premised on two
main grounds. Firstly, it was submitted on behalf of Ms Berzack that the
11
high court erred in interpreting the existing clause P on a narrow ground that
in the absence of proof that the servitude inscribed in the title deed served
the element of utilitas; the servitude was, therefore, personal in nature. It
was contended on behalf of Ms Berzack that the interpretation of the
servitude i s not supported by the plain language of the servitude, the
intention of the relevant parties when registering the servitude and the
subsequent conduct of the various owners of the Huntrex property.
[17] Secondly, it was contended that the high court erred in failing to take
into cognizance the fact that the existing servitude enures in favour of the
Berzack property, and having economic potential that effectively increases
the size of the Berzack property. Counsel placed reliance on the
interpretational tool espoused in Natal Joint Municipal Pension Fund v
Endumeni Municipality9 (Endumeni) that: ‘the “inevitable point of departure
is the language of the provision itself ”, read in context and having regard to
the purpose of the preparation and the background to the preparation and
production of the document .’10 Such an approach to the interpretation of
contractual instruments, including those creating servitudes, had been
applied by this Court in Kruger v Joles Eiendom (Pty) Ltd and Another ,11
with reference to the dictum in Kempenaars v Jonker, Van der Berg and
Havenga,12 where the following was said:
9 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262
(SCA); 2012 (4) SA 593 (SCA) (Endumeni).
10 Ibid para 18.
11 Kruger v Joles Eiendom (Pty) Ltd and Another [2008] ZASCA 138; [2009] 1 Al l SA 553 (SCA); 2009
(3) SA 5 (SCA).
12 Kempenaars v Jonker, Van der Berg and Havenga 1898 5 OR 223.
12
‘It is clear that incidents and the extent of the servitude must depend on the circumstances
under which it was created . . . I think . . . that much must depend on the circumstances
under which the servitude was created, and on the causa et origo servitutis.’13
[18] In argument, it was submitted on behalf of Ms Berzack that regard
being had to the language used, clause P should be read in the context in
which it appears in the title deed, the purpose of the servitude and the
background circumstances giving rise to the creation of the servitude. That
exercise begins with the conception of the garden by Ms Berzack and the
subsequent negotiations that culminated in the sale of the property to Mr
Wellens in 1983. It was submitted that it was wrong of the high court to
adopt a sequestered approach by excising different aspects of the same
servitude, preserving as praedial P(b)(i) and then severing it from P(b)(ii)
and (iii), which form an integral part thereof. It was submitted further that
the erroneous deletion of the words ‘her successors-in-title’ and P(b)(i) and
substitution thereof with a newly worded and self-standing paragraph P bis,
resulted in the removal of all the servitudal features of the garden and
benefits due to the Berzack property.
[19] Huntrex 277 supports the judgment of the high court on the basis that
clause P(b)(i) embodied a pr aedial servitude as contended for on behalf of
Ms Berzack , which is typically regarded as servitude irregulars. Such a
clause, Huntrex 277 argued, should be interpreted in the same way as
clauses P(b)(ii) and (iii), i.e. personal servitude, and not the other way.
Therefore, the clauses being interpreted purposively and contextually, and as
a whole, are personal to Ms Berzack . It was also contended on behalf of
13 Footnote 11 para 6.
13
Huntrex 277 that clause P(b)(i) is severable from the personal servitude of
usus embodied in clause P(b)(ii) and (iii) despite the fact that the y appear in
the same principal clause.
[20] These submissions were premised on the approach to interpretation of
a building contract by separation o f its parts as applied in Bondev Midrand
(Pty) Ltd v Puling and Another ; Bondev Midrand (Pty) Limited v
Ramokgopa (Bondev)14 They were also premised on the Roman -Dutch law
foundations of servitudes, it being contended on behalf of Huntrex 277 that
in the absence of the element of utilitas in clause P of the existing servitude,
the garden servitude is quintessentially not one of the recognized traditional
rural servitudes of a right of way or access to drinking water on land
belonging to another person. Relying on this, it was argued that the existing
servitude is by definition a personal servitude of usus whose registration is
hit by the prohibition in section 66 of the Deeds Registries Act.
Issues
14 Bondev, Midrand (Pty) Limited v Puling and Another; Bondev Midrand (Pty) Limited v Ramokgopa
[2017] ZASCA 141; 2017 (6) SA 373 (SCA) (Bondev), paras 19 and 20:
‘But that is a far cry from the circumstances in the present cases. The b urden created by the first clause,
namely the obligation to build a dwelling on the property, is binding on the transf erees (the respondents)
and their successors in title. The latter have no right under the second clause to bring that restriction to an
end. All clause two provides is that in the event of a failure to build a dwelling in the requisite time the
appellant, as the transferor, can recover the land against the payment of the purchase price if it so chooses.
This is akin to providing the appellant with an option to purchase which is essentially a personal right. But
the appellant is not obliged to demand or claim re-transfer of the land and the obligation to build will
remain extant as long as the respondents retain their ownership. Th us the restrictio n upon ownership
created by cl ause 1 remains binding and will not be terminated sho uld the appellant elect not to s eek
retransfer. The two clauses read together therefore do not constitute what Stre icher JA referred to as “a
composite whole” restricting the respondents’ use of the property.
In the circumstances, the first clause of this condition must be regarded as providing a real right and a
restriction upon the ownership of the property of the respondents and their successors in title. On the other
hand, the second clause under which the appellant has the election to claim re-transfer of the property,
creates no more than a personal right akin to an option to purchase which is not inseparably bound up with
the first clause. As the appellant s sought to enforce the second clause, the issue then becomes whether the
debt which is the subject of such a claim has prescribed.’
14
[21] The main issues for determination on appeal are whether the terms of
clause P amount to a pr aedial or personal servitude of usus; and, depending
on the nature of servitude that is created in cl ause P, whether such servitude
is capable of being registered in terms of s 66 of the Deeds Registries Act.
The determination of two secondary issues, namely, rectification and
prescription, depend on the outcome of the determination of the main issues.
Interpretation of contract of servitude
[22] The interpretation of clause P lies at the heart of this matter. Both
parties submitted as much. To the extent tha t the high court did not interpret
clause P with regard to the grammatical meaning of the words used therein
in light of the context, purpose and the background circumstances under
which the servitude creating contract was made between Ms Berzack and Mr
Wellens in 198 3, it erred. It applied a narrow and sequestered method of
interpretation, misconstrued the meaning of utilitas, excised the aspects of
what a praedial servitude was, which resulted in a constrained meaning
given to each o f those subclauses and mischaracterising the praedial
servitude as a personal servitude of usus. Immediately the servitude was so
construed, an opportunity was missed to unravel the causa et origo of the
contract that was concluded between Ms Berzack and Mr Wellens in 1983.
The process of separating and excising the aspects of clause P is an
isolationist approach to interpreting a contract that is not consonant with
what this Court propounded in Endumeni. Nor do I agree with counsel for
Huntrex 277 that the approach applied by this Court in Bondev finds
application in this case.
15
[23] There, it was held that although the conditions in a title deed of land
transferred by Bondev to each of the respondents entitl ing Bondev to claim
re-transfer against payments of the original purchase price if neither the
transferee nor their successors -in-title erect a dwelling thereon within a
certain period gave rise to both a real right (to have a dwelling erected) and a
personal right (to claim re-transfer). Each of those rights were interpreted as
they stood on the building contract. They were not denuded of their inherent
characteristics by excision and word alteration processes that we have seen
in this case. To the extent that only the right to claim re -transfer was
susceptible to prescription in terms of the provisions of s 11(d) of the
Prescription Act, those rights w ere found not to be inextricably wound up
together, but were capable of separate existence. Therefore, Bondev does not
support the argument advanced on behalf of Huntrex 277. In this case , we
are dealing with one composite contract creating a praedial servitude in
accordance with what the parties had intended at the outset.
[24] The meaning of clause P, read as a whole, shows that the element of
utilitas is present. The Huntrex 277 property has been serving the Berzack
property continuously for a period spanning more than thirty years. The right
to the garden is reserved on th e servient land and it enures in favour of the
Berzack property, serving the pursuit of Ms Berzack’s personal pleasure or
caprice. Subclause s P, P( a) and P(b)(i) demonstrate this fact . In the same
way, the ancillary clauses in P(b)(ii) and (iii) , read together with other
subclauses, describe the manner of access to the servitud al area . The fact
that the servitudal rights are enjoyed by the owner of the dominant tenement
is a natural feature of the praedial right. That the servitude as described in
clause P increases the economic potential of the Berzack property is not in
16
dispute. Just as the argument advanced on behalf of Ms Berzack that the
modern praedial servitude of view is similar in substance to the garden
servitude has n ot been co ntradicted. That said , I have no doubt in my mind
that, on the facts of this case, the intention expressed in writing by Ms
Berzack and Mr Wellens in 1983 was that th e garden should be reserved on
the Huntrex 277 property for the former’s benefit and subsequent
successors-in-title of the Berzack property in perpetuity, hence the
registration of the servitude.
[25] The finding made by the high court that clause P does not meet the
definition of utilitas is erroneous. In Willoughby’s Consolidated Co Ltd v
Copthall Stores Ltd ,15 this Court stated that in the absence of an ambiguity
in the words used in a servitude -creating contract, the golden rule applies in
favour of a praedial servitude having been proved by the person who claims
the existence thereof. In such event, as stated in Northview Properties (Pty)
Ltd v Lurie,16 ‘there is a presumption of fact arising from registration’17 and
the presumption against the existence of a real servitude does not arise.
[26] The adjunct to the attack against the recognition of a garden servitude
simply on the basis that it is not one of the traditional servitudes does not
have a legal basis . The correct position in our law is that there is no
exhaustive list of real servitudes. On this score, what the Constitutional
15 Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd 1918 AD 1 at 16.
16 Northview Properties (Pty) Ltd v Lurie 1951 (3) SA 688 (A).
17 Ibid at 689.
17
Court said in City of Tshwane v Link Africa (Pty) Ltd and Others 18 (Link
Africa) is instructive. The Court said:
‘In modern South African law, types of rights and restrictions found in traditional
servitudes have been relaxed. This relaxation has been so extensive “that their number is
“practically unlimited ” although certain general r equirements have to be fulfilled ”. To
determine whether a right in property is a servitude is often a matter of judicial policy. It
depends in part on whether the nature of the right is capable of being recogni sed as a real
right:
“The essence of a servitude is therefore, that it confers “a real right [to use and enjoyment
of the property of another] ”, and it is this direct relationship between the holder of the
servitude and the property to which it relates that distinguishes it from a mere contractual
right against the owner of the property.”
The crucial point is this: the common law on servitudes illustrates that property rights
have dimension, colour and complexity far beyond any barefaced general proposition
about ownership. Servitudes limit the right s of ownership and place certain burdens on
property by affording power of use and enjoyment to another. That has been the case for
thousands of years, fo r our law of servitude s, both consensual and non -consensual, is
derived from the Roman law.’19
[27] In this case the features of the garden servitude with which we are
concerned meet the distinctive characteristics of a praedial servitude, not a
personal servitude, as shown in Link Africa, where the following was said:
‘A praedial servitude is one where there are at least two pieces of land implicated. The
servitude confers benefits on one piece of land, the dominant tenement, while imposing
corresponding burdens on the other, the servient tenement. A praedial servitude vests in
the owner of the dom inant land. But neither its benefit nor its burden can be detached
from the land. These are passed from one land owner to the next.
18 City of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd and Others [2015] ZACC 29; 2015
(6) SA 440 (CC); 2015 (11) BCLR 1265 (CC) (Link Africa).
19 Ibid para 138 - 139.
18
By contrast, a personal servitude is a real right that attaches to the burdened land, but is
also always connected to an ind ividual. He or she holds the right to use and enjoy
another’s property. That right is non -transferable: it cannot be passed on to another.
However, personal servitudes are always enforceable against the owner of the property
burdened by it – even when that owner changes.’20
[28] On the contrary, the description of a personal servitude of usus makes
it plain that the garden servitude in this case is not a personal servitude of
usus. The authorities state that i n the case of a personal servitude of usus
involving a piece of land , the usuary of land may take fruit, vegetables and
other produce for the household’s needs, leaving the remaining produce to
the landowner who may enter and gather it. With regard to using a house,
the u suary may occupy it with his or her family, servants and guests, and
may let out part of the house, provided he or she remains in occupation.21
[29] For the aforementioned reasons, I am driven to the conclusion that the
meaning of the original clause P is that it bears the hallmarks of a praedial
servitude, not a personal servitude of usus. The servitude of the kind spelt
out in the original clause P does not fit the description of a personal
servitude of usus, but points to it being a praedial servitude not only when
viewed in line with the common intention of the parties but also when
interpreted purposively, contextually and having regard t o the background to
its preparation and production. In the event, the registration of the servitude
by the Registrar of Deeds cannot be faulted.
20 Ibid paras 136 - 137.
21 See, in this regard: F du Bois Wille’s Principles of South African Law 9 ed (2007) in Chapter 23.
19
[30] The order authori sing Huntrex 277 to demolish th e existing wooden
pole fence and erect its fence on the servitudal area, thereby r estricting
access by Ms Berzack to the garden ought not to have been granted.
Rectification and prescription
[31] The conclusion reached above that clause P constitutes a praedial
servitude undercuts the submission that s 66 of the Deeds Act prohibits
registration of the servitude. Similarly, there will be no need to de cide the
appeal based on rectification and prescription. Suffice it to say that the
judgment and order of the high court cannot stand. And the costs of the
appeal should follow the result.
[32] Before concluding , I need only to say that I have read the jud gment
authored by my colleagues, Plasket JA and Goosen AJA. While I agree that
the permanent advantage derived from a feature or attribute of the servi ent
tenement is not to be confused with the concept of utility, I disagree with the
proposition that there is no feature or attribute of the servient tenement
which can be said to provide an advantage to the dominant tenement. An
obvious concomitant of the garden servitude is that the servient tenement
entitles the dominant tenement to a view of the grounds. The servitutal rights
created indirectly serve as a guarantee that no structure can be constructed
on the grounds designated as the garden area. In thi s fashion, the dominant
tenement’s poolside entertainment area will always be an area with a view as
it is and will always be adjacent to a section of vacant land. That a view
adds utilitas and enhances the value of residential property is
incontrovertible. The fact that in tending the garden, Ms Berzack is, in the
process, able to pursue her personal pleasure or caprice does not detract from
20
the advantages alluded to. The argument that the servitude area was
identified in order to circumvent area restrictions imposed by the applicable
town planning scheme is a red -herring, in my view, and is above all belied
by the facts emerging from the record.
Order
[33] In the result, the following order is made:
1 The application for leave to appeal is granted.
2 The appeal is upheld with costs, including the costs of two counsel.
3 The order of the high court is set aside and replaced with the
following order:
‘The application is dismissed with costs including the costs of two counsel
where so employed.’
__________________
Z M NHLANGULELA
ACTING JUDGE OF APPEAL
Plasket JA and Goosen AJA
[34] We are unable to agree with the order that our colleague, Nhlangulela
AJA, proposes. We only agree with him that leave to appeal should be
granted in respect of paragraphs 1, 2, 3, 4 and part of paragraph 8 of the
order of the high court, and that the appe al should be upheld to that extent.
21
For the rest, we would dismiss the application for leave to appeal with costs,
including the costs of two counsel.
[35] This matter turns ultimately on whether the servitude in question is a
praedial servitude or pers onal servitude of usus. The implications of a
finding that the servitude is a praedial servitude are that it accrues to
successors in title to the current owner, Ms Berzack, and will burden the
servient tenement in perpetuity. If, however, the servitude is a personal
servitude, it accrues only to Ms Berzack while she owns the dominant
tenement. The consequences that flow from the decision as to the nature of
the servitude are thus far -reaching and of immense importance, not least to
the owners of the servie nt tenement and their successors in title. The high
court found that the servitude was a personal servitude of usus and granted
all the relief claimed by Huntrex.
[36] The effect of the judgment of Nhlangulela AJA is that it recognises as
a praedial serv itude the right to develop and maintain a garden upon a
servient tenement. As such it marks a significant development of the scope
of presently recognised praedial servitudes at common law. For reasons
which we elucidate below, the development is premised upon a
misapplication of the principles of law which govern the field of servitudes.
[37] When Ms Berzack sub-divided erf 380, Constantia, she sold part of it,
now known as erf 8 […] Constantia, to Mr A G Wellens on 21 September
1983. A servitude was embod ied in the deed of transfer and subsequently
registered in her favour. The servitude, contained in clause P of the deed of
transfer, reads as follows:
22
‘SUBJECT FURTHER to the following conditions imposed by the Transferor in favour
of himself and his succe ssors in title as owner of the REMAINDER of ERF 3 […]
Constantia, which conditions are as follows:
(a) The property hereby transferred is subject to a servitude area 20 (twenty) metres
wide, the Western boundary of which shall be parallel to the boundary marked DE
on Diagram No. 5253/1981 in favour of the Remainder of ERF 3 […]
CONSTANTIA, held by the said Transferor, MARGOT BERZACK (born
ILLMAN) married out of community of property to Jeffrey Cyril Berzack under
Deed of Transfer No. 3[…] dated 31st December 1970.
(b) The said servitude shall be subject to the following terms and conditions namely:
(i) no wall or fence of any description shall be erected on the
servitude boundary except extension of existing type of fencing
(wooden pole fencing).
(ii) The Seller shall have the right to plant, control, care for and renew
the existing garden situated within the servitude area more fully
described above.
(iii) The Seller shall have full rights of access to such servitude area in
fulfilment of the rights hereby granted.
(the term SELLER shall include her Successors in Title).’
[38] When Huntrex purchased erf 8 […] from Mr K W Sander in 2017, the
deed of transfer referred, in clause P, to the sale being subject to ‘the
following conditions contained in the said Deed of Transfer No.
T.3[…]/1983 imposed by MARGOT BERZACK in favour of herself and her
successors in title as owner of the REMAINDER OF ERF 3 […],
CONSTANTIA’. It then recorded, in clauses P(a) and P(b), the terms of the
servitude as agreed by Ms Berzack and Mr Wellens in 1983.
23
[39] Erf 3[…] and erf 8[…] lie on an east to west line bounded along their
northern boundary by Alphen Drive and along their southern boundary by
Peter Cloete Avenue. The servitude area extends for 20 metres westward
from the westerly boundary of erf 3[…]. One wooden fence crosses the area.
[40] This fence was the catalyst that led to this application. Because it
could not contain the dogs belonging to Mr and Ms Bain, the members of
Huntrex who reside on erf 8 […], they wished to remove it and replace it
with what they called a ‘visually permeable’ fence that they had
commissioned an architect to design.
[41] Mr and Ms Bains sought Ms Berzack’s permission to remove the old
fence and construct the new fence. She refused. As a result, they began to
research the position that pertained to the servitude area. When they
discovered the extent of the right that Ms Berzack claimed – and the
prejudice it caused to Huntrex as owner – they launched the application in
the high court with the aim of rectifying the situation.
[42] In their notice of motion, they sought orders to the effect that they
could remove the fence then in place and construct a new one (prayers 1 -4);
that it be declared that Ms Berzack’s servitude was only a personal servitude
of usus over erf 8[…] which ceased to have effect on her death; that it was
not capable of being registered in the title deeds as a praedial servitude in
favour of Ms Berzack and her successors -in-title (prayers 4 -7); and that the
Master – the second respondent, who took no part in the proceedings in the
high court or in this court – be directed to rectify the deed of transfer (prayer
8).
24
[43] The central issue in this application for leave to appeal is what the true
nature of the servitude is. This involves the interpretation of the servitude -
creating instrument. But, as van der Walt has said, the interpretation of a
servitude created by the juristic act of the parties, as opposed to legislation
or the common law, is not simply a matter of ascertaining the intent ion of
the parties through giving meaning to the words that they chose. In some
instances, ‘the law will override the clearly stated intention of the parties to a
servitude-creating contract if the contract conflicts with certain peremptory
principles of p roperty law’, the underlying reason being that ‘contracting
parties are not allowed to create real rights in land at will’.22
[44] Furthermore, since a servitude is a limitation on the right of ownership
of land, the common law recognises a presumption t hat land is free of a
servitude, unless the contrary is established. 23 This presumption has three
implications. They are:24
‘Firstly, it is presumed that property (particularly land) is free of servitudes and therefore
the existence of a servitude has to b e proved by the person who claims to hold it.
Logically speaking this presumption precedes interpretation of a servitude -creating
contract (the presumption is rebutted as soon as the servitude is proved) and therefore the
presumption will seldom compete wi th interpretation of the contract. Secondly, once the
existence of a servitude has been proved, the in favorem libertatis principle means that
the contract from which the servitude originates must be interpreted strictly so as to
impose the least cumbersom e burden on the servient property. In this case, the
presumption gives effect to an underlying property principle that directs that
interpretation of the contract. The logic is again that the servitude limits ownership, that
22 A J van der Walt The Law of Servitudes (2016) at 189 (Van der Walt).
23 Van der Walt at 192.
24 Van der Walt at 193-194.
25
ownership must be protected aga inst unnecessary restrictions, and that the contract must
therefore be interpreted restrictively so as to protect freedom of ownership. Thirdly, in
the same vein, if the existence of a servitude has been proved but it is unclear whether the
servitude is pr aedial or personal, the presumption favours a personal servitude because
that usually imposes a lesser burden on the servient land. Interpretation therefore again
takes place under the guidance of a property principle.’
[45] The approach to the interpretation of servitudes was set out
authoritatively by Innes CJ in Willoughby’s Consolidated Co Ltd v Copthall
Stores Ltd25 as follows:
‘Whether a contractual right amounts in any given case to servitude – whether it is real or
only personal – depends upon the intention of the parties to be gathered from the terms of
the contract construed in the light of the relevant circumstances. In case of doubt the
presumption will always be against a servitude, the onus is upon the person affirming the
existence of one to prove it.’
[46] The presumption that Innes CJ spoke of was described by Cloete JA
in Kruger v Joles Eiendomme (Pty) Ltd and Another 26 as ‘the well -
established rule of construction that because a servitude is a limitation of
ownership, it must be accorded an interpretation which least encumbers the
servient tenement’. The rule applies not only to whether the servient
tenement is burdened with a servitude but also, if it is, to whether it is
praedial or personal. This was explai ned by Corbett J in Jonordon
Investment (Pty) Ltd v De Aar Drankwinkel (Edms) Bpk 27 when he held that
‘where it is doubtful whether a servitutal burden placed on land was
intended to be for the benefit of another property and, therefore, praedial and
25 Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd 1918 AD 1 at 16.
26 Kruger v Joles Eiendomme (Pty) Ltd and Another [2008] ZASCA 138; 2009 (3) SA 5 (SCA) para 8.
27 Jonordon Investment (Pty) Ltd v De Aar Drankwinkel (Edms) Bpk 1969 (2) SA 117 (C) at 126A-B.
26
perpetual or for the benefit of a particular person and, therefore, personal
and limited in its duration, the latter interpretation must be adopted as being
the one which places the lesser burden upon the subject -matter of the
servitude’.
[47] Two observations concerning the approach to the interpretation of
servitudes are necessary. First, Nestadt J, in Lorentz v Melle and Others 28
made the point that the registration of rights in land does not ipso facto
‘render the rights of a servitutal character’ because i t may have been that
‘only personal rights were created and that registration should not have taken
place’. In other words, the nature and character of the right created must be
analysed. Secondly, the intention of the parties as expressed in their
agreement has its limits. Nestadt J, with reference to the passage cited above
in the Willoughby’s Consolidated case, expressed those limits thus:29
‘I would add that I do not read the passage and authorities quoted as meaning that the
parties’ intention (as gathered from the terms of the contract) is the sole criterion in
deciding the issue. If a contractual right is of such a nature that it is incapable of
constituting a servitude then obviously the intention of the parties (as expressed) to do so
is irrelevant.’
[48] Apart from the issue of interpretation, there are limits imposed by
principles and provisions of property law that seek to restrict the unbounded
creation of praedial servitudes, given their perpetual character and their
drastic effect of rest ricting the rights, powers and liberties of owners of
property. One such limit is s 66 of the Deeds Registries Act 47 of 1937. It
provides:
28 Lorentz v Melle and Others 1978 (3) SA 1044 (T) at 1049H (Lorentz).
29 At 1050G-H.
27
‘No personal servitude of usufruct, usus or habitation purporting to extend beyond the
lifetime of the person in whose favour it is created shall be registered, nor may transfer or
cession of such personal servitude to any person other than the owner of the land
encumbered thereby, be registered.’
[49] We turn now to the servitude. The wording of clause P pulls, at tim es,
in different directions but that notwithstanding, it seems to us that the type of
servitude contemplated by the parties is nonetheless evident. It is important
to bear in mind that the character of the servitude, rather than what the
parties who created it chose to call it, is decisive.
[50] In clause P’s introductory recordal, it is stated that the servitude set
out in the remainder of the clause was ‘imposed’ by Ms Berzack in favour of
herself as owner of erf 3 […], and her successors in title. Claus e P(a) then
identifies the servitude area, and in doing so refers to the ‘property hereby
transferred’ as being ‘subject to a servitude area’. It also identifies the
property in favour of which the servitude operates.
[51] The servitude area in favour of Ms Berzack and her successors in title
having thus been identified, clause P(b) defines the rights that the servitude
grants. The operative provisions are clauses P(b)(ii) and (iii), as clause
P(b)(i) only concerns the fence and has no bearing on the char acter of the
servitude. Clause P(b)(ii) defines the servitutal right that ‘the Seller’
obtained (or, in the words of the recordal, ‘imposed’ on the owner of erf
8[…]) as the right to ‘plant, control, care for and renew’ the garden in the
servitude area. In other words, the servitude gave Ms Berzac the use of the
servitude area in order to garden. Clause P(b)(iii) adds little, as all it does is
28
emphasise that Ms Berzack and her successors in title have a right of access
to the servitude area in order to garden.
[52] The only indications that a praedial servitude was in the
contemplation of the parties are the reference to successors in title to Ms
Berzack and the identification in clause P(a) of two properties, one that is
subject to a servitude area and one in whose favour the servitude area
operates. These factors must be seen in the context of the servitude as a
whole, particularly: the statement in the recordal that it was ‘imposed’ by Ms
Berzack in favour of herself and her successors in title, as opp osed to being
‘imposed’ over the servient tenement in favour of the dominant tenement;
the statement in clauses P(b)(ii) and (iii) that ‘the Seller’ obtained the rights
listed therein; and the fact that the only purpose in referring to the two
properties in clause P(a) was to identify the servitude area.
[53] As against these limited indicators that a praedial servitude may have
been intended, there are two strong indicators that a personal servitude was
intended. First, on the first sale of erf 8 […], the terms of the servitude were
‘imposed’ in favour Ms Berzack ‘as owner’ of erf 3 […]. Secondly, the
nature of the rights in clauses P(b)(ii) and (iii) are, by their nature, personal
to Ms Berzack. They indicate that the intention of the parties was to create a
personal servitude – ‘a limited real right that imposes a burden on the
servient tenement . . . for the benefit of a particular person’ 30 – for no reason
other than enabling Ms Berzack to enjoy gardening in the servitude area. As
stated above, in the ca se of uncertainty, the authorities are clear: the
30 Du Bois (ed) Wille’s Principles of South African Law (9 ed) (2007) at 604 (Du Bois).
29
servitude must be held to be a personal servitude rather than a praedial
servitude.
[54] We turn now to a more precise characterisation of the rights created
by clause P(b)(ii). The personal servitude of usus is defined as follows by
van der Walt:31
‘The personal servitude of use ( usus, bruick in Roman -Dutch law) is similar to but
narrower than usufruct. The beneficiary of a servitude of use (referred to as a “usuary”)
can, like the usufructuary, use the property of another person, for her lifetime or for the
specified term of the servitude, for her own benefit or for the benefit of her family,
provided that the substance of the property is preserved and returned to the owner when
the servitude is terminated.’
Put in slightly different terms, the servitude of usus ‘entitles the usuary to use the usuary
property but not to appropriate its fruits’.32
[55] Ms Berzack, in her answering affidavit stated that one of the
‘unavoidable consequences’ of her sub -dividing her property and selling
part of it had been that ‘a significant portion’ of her garden fell within the
portion that was to be sold. She wished to protect for her benefit and that of
successors in title, ‘the exclusive right to use, access and tend to that portion
of the garden by creating [a] servitude over the Huntrex property at the same
time as selling and transferring it’. When Ms Berzack’s sta ted intention is
matched with clauses P(b)(ii) and (iii), there can be little doubt that she
sought to, and did, create a right of use for herself. It seems clear to us that
the servitude thus created falls squarely into the definition of the personal
servitude of usus.
31 Van der Walt at 488.
32 Du Bois at 610.
30
[56] Van der Walt states that ‘the nature and content of a servitude’
depends only to an extent on the intention of the parties who created it
because ‘the law will not give effect to the intention of the parties if they
intended to do somet hing that is not possible according to the principles of
property law’, such as creating ‘a personal servitude that is transferable or
perpetual’.33 As s 66 of the Deeds Registries Act prohibits the registration of
a personal servitude of usus that purports to extend beyond the lifetime of
the person who created it, Ms Berzack was not legally capable of ‘imposing’
the servitude on the purchaser of her property in favour of herself and her
successors in title. That has the result that, irrespective of what t he servitude
says or what Ms Berzack intended, the servitude expires on her death. The
import and effect of s 66 of the Deeds Registries Act cannot be ignored. It
reflects a legislative purpose to bolster the common law impediments to the
extension of perpetual restrictions on the ownership of property. Its effect is
that once a servitude bears the hallmarks of a personal servitude, it precludes
registration.
[57] We note that Nhlangulela AJA accepts that the rights created by the
registered servitude we re intended to enable ‘the pursuit of Ms Berzack’s
personal pleasure or caprice’ – the essence of a personal servitude – and that
clauses P(a) and (b) confirm this. 34 He concludes, however, that the
requirement of utilitas is met by the enhancement in valu e which accrues to
the dominant tenement, and the beneficial acquisition of a ‘view’ of the
garden. We deal with this hereunder.
33 Van der Walt at 217.
34 See para 24 of Nhlangulela AJA’s judgment.
31
[58] Having concluded from an interpretation of the servitude and from the
nature of the rights created, that a personal servi tude of usus was, in fact,
created, we now approach the issue from a different angle. We turn now to
consider the essential requirements for the creation of a praedial servitude
and whether the servitude at issue meets those requirements. There are five
general requirements. These embody certain principles which characterise
the servitude as praedial, ie as perpetual constraints upon the rights of
ownership of the servient tenement whilst conferring real rights that attach to
the dominant tenement.35 Only two of these need be considered.
[59] The first is that the servient tenement must be capable of serving the
dominant tenement on a permanent basis, and therefore that the use made of
the servient tenement must be based on some permanent feature or attrib ute
of the servient land. This requirement is expressed in the principle of
perpetual cause. It was stated in Lorentz that it is ‘ the essence of a praedial
servitude that it burdens the land to which it relates and that it provides some
permanent advantage to the dominant land, as distinct from serving the
personal benefit of the owner thereof’.36
[60] The advantage provided by the servient tenement to the dominant
tenement must derive from a feature or attribute of the servient tenement
35 Du Bois at 593-596.
36 Lorentz at 1049G.
32
which is permanent. In Lorentz,37 this was expressed in a citation from
Hahlo and Kahn38 who wrote:
‘The old example of the Roman law, which was duly repeated in the Romanistic
literature, was that one cannot have a praedial servitude to pluck fruit or to stroll o r to
have dinner on another's land. On the other hand, the use made of the servient land must
be based on some permanent attribute or feature of it. This is expressed in the
requirement of the existence of a causa perpetua.’
[61] The second is that the se rvient tenement must provide some utility or
benefit to the dominant landowner, as owner, and must not merely serve that
owner’s personal pleasure or caprice. 39 This requirement is embodied in the
principle of utilitas. We have already pointed to the fact that the main
judgment, correctly in our view, recognises that the servitutal rights created
by the clause in the title deed served Ms Berzack’s personal pleasure and
caprice. The servitude was created to enable her to enhance her personal
pleasure derived from gardening, rather than to exercise dominium over her
property and enjoy all the elements of that dominium.
[62] While we accept that the principle of utilitas may be met by
enhancement in value of, or the advancement of the economic, industrial or
commercial potential of a dominant tenement to which a servitude over a
servient tenement attaches, 40 the enhancement must flow from the right
which is conferred by the servitude. A right of way, or a right to draw water
37 Lorentz at 1052C.
38 Hahlo and Kahn, The Union of South Africa; The Development of its Laws and Constitution (1960) at
602.
39 Du Bois at 594. See also Briers v Wilson and Others 1952 (3) SA 423 (C) at 433H -434F; Bisschop v
Stafford 1974 (3) SA 1 (A) at 11F-12A.
40 Hollman and Another v Estate Latre 1970 (3) SA 638 (A) at 644F-645B.
33
from a stream or to lead water ove r a servient tenement no doubt may
facilitate the use, and therefore value, of a dominant tenement otherwise
deprived of such services. So too, a restrictive condition imposing
limitations on the right to trade upon a servient tenement may protect the
value that attaches to such rights as vest in a dominant tenement. These are
the types of value enhancement envisaged as fulfilling the utilitas
requirement. Non constat the ‘increased market value’ which might ensue
from a beautiful garden developed upon a se rvient tenement, establishes
utility as required by the common law. In any event, even if it is assumed
that some market value benefit may flow from the gardening activities of Ms
Berzack, such ‘utility’ cannot alter the fact that the rights were reserved by
her in pursuit of her personal pleasure and enjoyment.
[63] The assertion by Nhlangulela AJA that additional utility is to be found
in the fact that the servitude will also ensure a view of the garden, which will
attach to the dominant tenement, merits comment. In the first instance, there
was no evidence before th e court about the nature of this ‘view’. The record
contains only general assertions that the garden is directly adjacent to a pool
area on the dominant tenement and that it serves to enhance the visual
appreciation of the area. More importantly, the utili ty in a view, if it is to
serve as a basis for recognition of a praedial servitude, requires more than
the mere assertion of the existence of a ‘view’. The reason is this: a view lies
across or over an adjacent property. If it is to attach as of right to a dominant
tenement, it must necessarily do so by restricting the use to which the
servient tenement may be put insofar as such use would obstruct or destroy
the ‘view’ across the servient land. This difficult conundrum has been the
subject of numerous disp utes before our courts, mostly in the context of
34
challenges to the lawful use of property which serves to ‘detract’ from the
value of an adjacent, neighbouring property.41
[64] Our law does not recognise a natural entitlement, based upon the mere
ownership of land, to enjoy a view across adjacent land. The authorities also
do not, as a general entitlement, recognise the protection of value in a
property by imposing upon the owner of adjacent land restrictions on the
lawful use of such land. The circumstanc es in which this may occur are not
germane to this case. The point is made to demonstrate that the ‘utility’ of a
view of the garden can, in the context of this case, serve no more than to
assert the ‘value’ of the garden itself.
[65] How would the utilitas requirement be affected if a successor in title
had no interest in gardening? Let us assume that they simply abandoned the
cultivation and care of the garden in the servitude area, allowing it to
become a rodent infested eye -sore. Could it still be sai d in these
circumstances that the value of the dominant tenement has been enhanced by
the servitude? In our view, the obvious answer is ‘no’. In similar vein it
could not be said that the servient tenement has continued to provide a
permanent advantage or perpetual cause to the dominant tenement in the
absence of the maintenance and renewal of the garden. This example also
highlights, it seems to us, the personal nature of the rights claimed by Ms
Berzack.
41 Paola v Jeeva NO and Others 2004 (1) SA 396 (SCA); Clark v Faraday 2004 (4) SA 564 (C); Muller
NO and Others v City of Cape Town and Another 2006 (5) SA 415 (C); True Motives 84 (Pty) Ltd v Madhi
(Ethikwini Municipality as Amicus Curiae) 2009 (4) SA 153 (SCA).
35
[66] It must be emphasised that the permanent adv antage derived from a
feature or attribute of the servient tenement is not to be confused with the
concept of utility. The requirements are interlinked, but they are not co -
extensive. In this case there is no feature or attribute of the servient tenement
which can be said to provide an advantage to the dominant tenement. The
fact that it is contiguous is of no moment. That serves only to meet the
requirement of vicinitas. There is no evidence that the portion of land used
for the development and cultivation of a garden offers some peculiar facility
for the development of such a garden. The service that the servient tenement
provides consists of no more than the space upon which a garden has been
developed. Indeed, the expedient of a servitude and the servitu de area was
identified in order to circumvent area restrictions that applied to sub -
divisions of land, in terms of the applicable town planning scheme.
[67] One final point warrants emphasis, and that is the entirely subjective
and value-laden-aesthetic of what constitutes a ‘garden’ which would serve
to enhance market or economic value of the dominant tenement. The fact
that Ms Berzack may have created a garden which satisfies the sensibilities
of a particular segment of society is no basis to infer intr insic advantage
provided by the servient tenement to the dominant tenement. This is
particularly so in the light of the fact that the ‘advantage’ conferred by the
servient land constitutes a permanent diminution of the rights of dominium
exercised by the owner of the servient tenement.
[68] In our view, for the reasons set out above, the servitutal rights
conferred by the terms of the agreement do not meet two of the essential
requirements for recognition as a praedial servitude. It is, as indicated above,
36
no more than a servitude of usus, which is personal to Ms Berzack. It
follows that in respect of the principal issue, namely whether the servitude is
praedial or personal in nature, and the remedial consequences that flowed
therefrom, there is no prospect of success on appeal. The high court’s
conclusion is correct that clauses P(b)(ii) and (iii) operate as a personal
servitude of usus in favour of Ms Berzack; that they will cease to have force
or effect on her death; and they are not capable of operating or being
registered as a praedial servitude and ought not to have been registered as
such. The result is that paragraphs 5, 6 and 7 of the high court’s order were
correctly granted. As we shall explain, paragraph 8 – the rectification of
clause P to bring it into conformity with s 66 of the Deeds Registries Act –
requires limited amendment, only in relation to the fence.
[69] As regards paragraphs 1, 2, 3 and 4 of the high court order, we agree
that no basis was established for the relief granted by the h igh court. These
paragraphs concern the fence, its demolition and the construction of a new
fence. Clause P(b)(i) provides that ‘no wall or fence of any description shall
be erected on the servitude boundary except extension of existing type of
fencing (wooden pole fencing)’. Simply stated, clause P(b)(i), although not a
model of the legal drafter’s art, clearly prohibits the construction of a fence
on the servitude boundary except to the extent that it is an extension of the
existing fence and is constructed of wooden poles.
[70] We can see no basis upon which clause P(b)(i) can be interpreted to
mean that the owner of the servient tenement may demolish the existing
fence and then construct a new fence on the boundary of the servitude area.
That being so, there was no basis for the granting of paragraphs 1, 2, 3 and 4
37
of the order. There was also no basis for the rectification of the clause P of
the deed of transfer by deleting clause P(b)(i). Paragraph 8 of the order will
have to be amended to that extent . As that does not qualify as substantial
success, there will be no costs order in favour of Ms Berzack in that regard.
[71] We conclude that except for paragraphs 1, 2, 3 and 4 of the order of
the high court, which deal with the fence, and the deletion of clause P(b)(i)
in the rectified servitude, which also relates to the fence, there are no
reasonable prospects of success on appeal. We would grant leave to appeal
in relation to those paragraphs, as well as paragraph 10 which deals with
costs, uphold th e appeal and set aside those paragraphs of the order of the
high court. For the rest, we would dismiss the application for leave to appeal
with costs, including the costs of two counsel. It would, in the light of Ms
Berzack’s partial success be necessary t o re-visit the costs order of the high
court.
[72] We would accordingly make the following order.
1 Leave to appeal is granted in respect of paragraphs 1, 2, 3, 4, 8 and 10
of the high court’s order.
2 The appeal against paragraphs 1, 2, 3 and 4 of the high court’s order is
upheld with costs, including the costs of two counsel.
3 Paragraphs 1, 2, 3 and 4 of the high court’s order are set aide and
replaced with the following order:
‘Prayers 1, 2, 3 and 4 of the notice of motion are dismissed with cost s,
including the costs of two counsel.’
4 The appeal against paragraph 8 of the high court’s order is upheld to
the limited extent set out in paragraph 5 below.
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5 Paragraph 8 of the high court’s order is amended by the insertion in
the rectified clause P o f the deed of transfer, at clause P(b)(i), of the
following words:
‘No wall or fence of any description shall be erected on the servitude
boundary except extension of existing type of fencing (wooden pole
fencing)’.
6 The application for leave to appeal is otherwise dismissed with costs
including the costs of two counsel.
____________________
C PLASKET
JUDGE OF APPEAL
_____________________
G GOOSEN
ACTING JUDGE OF APPEAL
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Appearances:
For appellant: J G Dickerson SC (with S G Fuller)
Instructed by: Dorrington Jessop Incorporated, Cape Town
Webbers Attorneys, Bloemfontein
For first respondent: S P Rosenberg SC (with T Tyler)
Instructed by: Lamprecht Attorneys, Cape Town
Symington De Kok, Bloemfontein
For the second respondent: Abides the decision of the Court
For the third respondent: Abides the decision of the Court