SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
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CONSTITUTIONAL COURT OF SOUTH AFRICA


Case CCT 69/23

In the matter between:


HUNTREX 277 (PTY) LIMITE D Applicant

and

MARGO T BERZACK First Respondent

REGISTRAR OF DEEDS Second Respondent

CITY OF CAPE TOWN MUNICIPALITY Third Respondent



Neutral citation: Huntrex 277 (Pty) Ltd v Berzack and Others [2025 ] ZACC 6

Coram: Zondo CJ, Madlanga ADC J, Bilchitz AJ, Chaskalson AJ,
Dodson AJ, Majiedt J, Mathopo J, Mhlantla J and Tshiqi J


Judgments : Dodson AJ (majority): [ 1] to [146]
Chaskalson AJ (dissenting ): [147] to [189]
Bilchitz AJ (dissenting ): [190] to [235]

Heard on: 12 March 2024


Decided on: 30 April 2025

Summary: Servitude — whether praedial or personal — approach to
interpretation of servitude — whether servitude complian t with
principles of property law

Praedial servitude — requirements of perpetuity and utility —
whether utility satisfied by recreational use
Personal servitude — whether servitude constituting personal
servitude of usus

Section 66 of Deed Registries Act 47 of 1937 — prohibiting
registration of certain personal servitudes extending beyond the
lifetime of the holder

Common law of servitudes — whether same should be
developed or modernised by way of new statutory regime
Servitude — exercise required to be civiliter modo or reasonable




ORDER



On application for leave to appeal from the Supreme Court of Appeal (hearing an
appeal from the High Court of South Africa, Western Cape Division, Cape Town ).
The following order is made :
1. Leave to appeal is granted.
2. The appeal is upheld .

3. The order of the Supreme Court of Appeal is set aside and replaced
with the following order:
“(1) Leave to appeal is granted.
(2) The appeal is upheld.
(3) The order of the High Court is amended to read as follows:
‘1. The second respondent is ordered to rectify c lause P of
deed of transfer No. T10518/2017 executed at the office
of the Registrar of Deeds, Cape Town on
28 February 2017 so as to read as follows:
‘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[...] C[...] , held by the said Transferor,
Marg ot Berzack (born Illman) married out of
community of property to Jeffrey Cyril
Berzack, under Deed of Transfer No. 38631
dated 31 st 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 Transferor shall have the right to
plant, control, care for and renew the
existing garden situated within the
servitude area more fully described
above.
DODSON AJ
4 (iii) The Transferor shall have full rights
of access to such servitude area in
fulfilment of the rights hereby
granted.’
2. It is declared that clauses P(b)(i), (ii) and (iii) of the
servitude —
(a) were in their original form not lawfully capable of
being registered in the title deed, or of operating,
as a praedial servitude over Erf 8[...] C[...] , (a) in
favour of the remainder of Erf 3[...] C[...] , or
(b) beyond the lifetime of the first respondent in
favour of her successors -in-title, and the second
respondent erred in permitting those clauses to be
so registered ;
(b) were in their original form and are in their rectified
form, lawfully capable of operating only as a
personal servitude of usus over Erf 8[...] C[...] in
favour of the first respondent;
(c) in their rectified form shall cease to have force or
effect upon the death of the first respondent , or the
alienation of Erf 3[...] by the first respondent, or if
otherwise lawfully terminated, whichever is the
earlier .
3. The balance of the relief sought by the applicant is
dismissed.
4. The first respondent is ordered to pay two thirds of the
costs of the applicant, including the costs of two counsel. ’
(4) The app licant is ordered to pay two thirds of the costs of the first
respondent in the applications for leave to appeal and the
appeal to the Supreme Court of Appeal, including the costs of
two counsel. ”
4. The first respondent is ordered to pay the applicant’s costs of the
application for leave to appeal and the appeal in this Court , including
the costs of two counsel.
DODSON AJ
5


JUDGMENT




DODSON AJ (Madlanga ADC J, Majiedt J, Mathopo J, Mhlantla J and Tshiqi J
concurring ):


Introduction
[1] A dispute between neighbours in the leafy Cape Town suburb of Constantia
has found its way to th is Court. The neighbours disagree about a servitude
registered over their respective properties. The servitude allows the one neighbour
to access and tend a garden on part of the property of the other.

[2] To resolve the dispute, it must be decided whether the servitude is praedial or
personal. If praedial, it will bind the respective properties and their current and future
owners in perpetuity. If personal, it is for the sole benefit of the current owner of the
dominant property and cannot extend beyond her lifetime , at the latest .

Parties
[3] The applicant is Huntrex 277 (Pty) L imited (Huntrex). It has as its directors
and shareholders Ms Samantha Bain and her husband , Mr Rodney Bain. The
property owned by Huntrex is their home. I will refer to the applicant as “the Bains”
rather than using the company name. The first respondent is Ms Margo t Berzack.
The property owned by her is similarly her home. The second respondent is the
Registrar of Deeds , who filed a report for purposes of the proceedings before this
DODSON AJ
6 Court, presumably in terms of section 97(1) of the Deeds Registries Act.1 The
Registrar of Deeds does not oppose the application.

[4] The third respondent is the City of Cape Town Municipality. It has not
participated in any of the proceedings in the High Court , Supreme Court of Appeal or
this Court.

Background
[5] Ms Berzack was originally the owner of the entirety of Erf 3[...], Constantia
(the property) . She purchased it and took transfer in 1970. The property was some
8 310 m2 in extent. Her house was situated on the eastern side of the property. The
garden extended westward f rom the house. The end of the garden was demarcated
by a wooden fence. The land west of the wooden fence, although still forming part of
the property , was left unused and untended.

[6] In 1982 Ms Berzack decided to subdivide and sell off the unused area.
However, she ran into a problem. A local land use ordinance2 imposed a minimum
erf size of 4 000m2 and t he unused area was less than this. A subdivision of the
property into two 4 000m2 erven would have divided the part of the property wh ere
Ms Berzack had created her garden. The new boundary would have cross ed the
paving alongside her swimming pool.

[7] In order to avoid the impact of the ordinance, Ms Berzack decided to create a
servitude. The servitude would allow her and her successors -in-title to retain “the
exclusive right to use, access and tend to that portion of the garden”3 that fell on the
newly -subdivided area (the Bains’ property). The terms of the servitude were agreed
with a Mr Arnold Gerhard Wellens who wished to purchase the 4 000m2

1 47 of 1937. Section 97(1) reads as follows:
“Before any application is made to the court for authority or an order involving the
performance of any act in a deeds registry, the applicant shall give the registrar concerned at
least seven days’ notice before the hearing of such application and such registrar may submit
to the court such report thereon as he may deem desirable to make.”
2 The parties are unable to identify the ordinance, but it is common cause that it was in place in 1982.
3 This is how she described what she sought to achieve by the servitude. This is not how the servitude itself
reads.
DODSON AJ
7 newly -subdivided erf. He has provided an affidavit in which he confirms that it was
their mutual intention in creating the servitude to give effect to Ms Berzack’s
decision. Mr Wellens purchased the newly -subdivided erf and t he servitude was
duly registered on 21 September 1983 when the erf was transferred to Mr Wellens.
The servitude conditions were retained in each successive deed of transfer, the most
recent being the deed in terms of which the Bains’ property was transferred to them
on 28 February 2017.

[8] The servitude is set out in the relevant deeds of transfer as follows:

“P. SUBJECT FURTHER to the following conditions imposed by the
Transferor in favour of [herself] and [ her] successors in title as
owner of the REMAINDER of ERF 3[...] C[...] , 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 D E on
Diagram No 5253/1981 in favour of the Remainder of
Erf 3[...] C[...] , held by the said Transferor, Margo t
Berzack . . . under Deed of Transfer No . 38631 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.
DODSON AJ
8 (the term Seller shall include her Successors -in-Title)”

[9] Diagrammatically, the servitude may be represented as
follows:


[10] In the above diagram ,4 the Bains’ property is “Erf 8[...]”5 and Ms Berzack’s
property is “Remainder Erf 3[...]”. The servitude area is represented by the polygon
“HGAKJH ”. The solid line AG represent s the boundary between Ms Berzack’s
property and the Bains’ property. The dotted line “HJ” represents the eastern

4 The diagram is not the official surveyor -general diagram referred to in clause P of the title deed. It is a
diagram prepared by a surveyor for purposes of the present proceedings.
5 The western boundary of the Bains’ property is not shown on the diagram.
Diagram 1
DODSON AJ
9 boundary of the servitude area. The dotted lines within the servitude area, with the
word “Fence” appearing alongside them, represent the wooden pole fencing
enclosing the garden which forms the subject matter of the servitude. It is common
cause that the wooden pole fence completely precludes the Bains from accessing
the part of the servitude area that is gardened by Ms Berzack.

[11] What precipitated the dispute was that the Bains’ small and adventurous dogs
were able to climb through the wooden pole fence. The Bains could not. So ,
retrieving their dogs was difficult . They asked an architect to design an
impermeable, transparent fence to replace the wooden pole fence. This would keep
the dogs on the Bains’ side of the fence and give them sight of Ms Berzack ’s garden
area.

[12] The Bains sought Ms Berzack’s consent to the replacement of the fence, but
she refused. She relied on her rights in terms of the servitude, particularly
clause P(b)(i) , requiring 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)”. It was at this point that the Bains investigated the matter further and for
the first time came to appreciate more fully the implications of the servitude.

[13] Ms Berzack’s unwillingness to agree to replacing the fence is not the only
complaint the Bains have. Ms Berzack, they say, treats the servitude area as being
de facto (as a matter of fact ) in her ownership. This is not seriously disputed by
Ms Berzack. She asserts that the terms of the servitude give her exclusive access to
and control over the entire servitude area. Photographs taken from Ms Berzack’s
property of the servitude area would give the impression that at least that part of the
servitude area that lies on her side of the wooden fence, forms part and parcel of her
property. Notwithstanding her assertion of exclusive access to and control over the
servitude area, she declined a request by a previous owner of the Huntrex property
to pay a proportionate share of their municipal rates. She persists in this stance.

DODSON AJ
10 Litigation history
In the High Court
[14] The battle lines were drawn. The Bains applied to the Western Cape Division
of the High Court , Cape Town ( High Court ). They took the attitude in their
founding affidavit that clause P(b)(i) did not preclude them from erecting a wooden
pole fence along the common boundary and giving Ms Berzack access to the
servitude area by way of a gate in the envisaged boundary fence. Neither did it
prevent them from demolishing the existing wooden pole fencing in the servitude
area. The Bains asserted that the garden servitude was a personal servitude of
usus (use) ; that the Registrar of Deeds had overlooked this ; and that it had been
impermissibly registered as a praedial servitude. Accordingly, the Bains sought
rectification of the servitude and declaratory relief consistent with their stance.

[15] In answering the case sought to be made by the Bains, Ms Berzack insisted
that a praedial servitude had been properly and lawfully registered over the Bains
property as the servient tenement, in favour of her property as the dominant
tenement.6 The servitude was not one of usus . It afforded her “a right of exclusive
use”7 over the servitude area. The Bains ’ envisaged new fence on the boundary
between them would run almost along the edge of her swimming pool, over the
surrounding paving, and would “sequester the servitude garden from [her] property”.
On Ms Berzack’s interpretation, the servitude grant ed the owner of her property “sole
and absolute discretion” to decide whether the existing wooden fence should be
demolished or extended into the servitude area and the exclusive right to control
access to the servitude area.

[16] Ms Berzack counter -applied for relief declaring that the servitude was to be
interpreted in accordance with her understanding . Alternatively, she sought

6 In the context of a praedial servitude, the dominant tenement is the property whose owner enjoys rights over
the property subject to the servitude, which is the servient tenement.
7 Ms Berzack’s words.
DODSON AJ
11 rectification to this effect. In the further alternative, she asserted rights equivalent to
her interpretation of the servitude acquired by way of acquisitive prescription.8

[17] The High Court identified the requirements for a praedial servitude. It focused
on the requirement of utility. This requires that, for the servitude to be a praedial
one, it “must offer some permanent advantage or benefit to the owner of the
dominant land qua [(in their capacity as)] owner and must not merely serve his or her
pleasure or caprice”.9

[18] The High Court went on to hold as follows:

“An inspection in loco revealed that the portion of the servitude area
located on Ms Berzack’s property is but a part of the very large and
beautiful garden and an additional area, as it were, for the private
exclusive enjoyment and pleasure of the owners of Ms Berzack’s
property . It is not an area that can be used separately from the rest of
the garden and cannot be said to increase its economic, industrial or
professional potential. It is at best a pleasant add -on to an already
large and pleasant garden, providing pleasure to the owners of
Ms Berzack’s property . The fact that they have exclusive use and
access thereto for other pleasurable activities does not detract from
this. I am inclined to agree that these rights do not increase the utility
of Ms Berzack’s property . It does no more than enable Ms Berzack to
engage in a personal pleasure or caprice, and is therefore one which
may only be conferred by a personal servitude of usus .
The servitude is thus in substance a personal servitude of usus and as
such can only be in favour of Ms Berzack personally, and not her
successors in title or in favour of Ms Berzack’s property . This being so,

8 Acquisitive prescription of servitudinal rights comes about where a party has openly, and as if she were a
servitude holder, exercised rights consistent with a servitude in a property, over an uninterrupted period of
30 years. See section 6 of the Prescription Act 68 of 1969.
9 Huntrex 277 (Pty) Ltd v Margot Berzack , unreported judgment of the High Court of South Africa, Cape Town,
Case No 6407/2020 (10 December 2020) ( High Court judgment) at para 14, citing Van der Merwe “Servitudes”
in LAWSA 2 ed (2010) vol 24 at para 549.
DODSON AJ
12 the servitude was prohibited from being registered as it is contrary to
section 66 of the Deeds Registries Act . . . which prohibits the
registration of a personal servitude of usus , purporting to extend same
beyond the lifetime of the person in whose favour it was created.”10

[19] Insofar as the counter -application based on acquisitive prescription is
concerned, the High Court rejected this claim. It reasoned that —

“if the servitude was originally legally flawed, because it amounted to
the registration as a praedial servitude of what was actually a personal
servitude of usus , that legal flaw was not cured by the operation of
[acquisitive ] prescription. . . . Put differently, [Ms Berzack] could not
have , by acquisitive prescription, acquired a praedial servitude by
subverting the provisions of Section 66 of the Deeds Registries Act ”.11

[20] Insofar as the Bains sought orders permitting demolition of the existing
wooden pole fence enclosing the garden and authorisation to erect a wooden pole
fence along the boundary between the erven, the High Court found that there was
nothing in clause P(b)(i) of the servitude that precluded such relief.

[21] Accordingly, the High Court granted the relief sought by the Bains, including
rectification of the terms of the servitude to reflect it as being a personal servitude of
usus , not a praedial servitude ; deletion of clause P(b)(i) ; the substitution for it of a
clause stating “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)” ; and granting a series of declarators including those permitting demolition
of the existing wooden pole fence and authorising erection of a wooden pole fence
along the boundary between the erven. Ms Berzack’s counter -application was
dismissed and she was ordered to pay the Bains’ costs of both the application and

10 Id at paras 16-17.
11 Id at para 18.
DODSON AJ
13 the counter -application. Ms Berzack’s application to the High Court for leave to
appeal failed.

Supreme Court of Appeal
[22] Ms Berzack then applied to the Supreme Court of Appeal for leave to appeal.
The Supreme Court of Appeal set the matter down for oral argument on both the
application for leave to appeal and the merits of the appeal .

[23] Ms Berzack also applied to the Supreme Court of Appeal in terms of
section 19(b) of the Superior Courts Act12 for the admission on appeal of new
evidence. This took the form of affidavits by a Mr Richard Moffat and a
Ms Margaret Boag, both attorneys and conveyancers with over 35 years’ experience.
Each claims to have registered what they consider to be praedial servitudes identical
to the one in question, along with other servitudes which they contend are similar.
These include servitudes to protect the view from a dominant property by restricting
building on a servient property, and “grant[ing] the dominant property the use of the
servient property for certain defined purposes which may be recreational in nature,
for example, walking, hiking and jogging”. They go on to express the view that the
High Court judgment creates uncertainty in the law and conveyancing practice.

[24] The Supreme Court of Appeal disregarded these affidavits on the basis that
they had no bearing on the merits of the appeal but were , rather, filed in order to
bolster Ms Berzack’s application for leave to appeal.13 I will, similarly, treat them as
being relevant only to whether this Court has jurisdiction and whether it is in the
interests of justice to grant leave to appeal.


12 Section 19(b) reads:
“The Supreme Court of Appeal . . . may, in addition to any power as may specifically be provided for
in any other law —
. . .
(b) receive further evidence.”
13 Berzack v Huntrex 277 (Pty) Ltd [2023] ZASCA 17; 2023 (6) SA 120 (SCA) (Supreme Court of Appeal
judgment) at para 4.
DODSON AJ
14 [25] The Supreme Court of Appeal was divided. By a majority of 3:2, it upheld the
appeal, set aside the decision of the High Court, and replaced it with a decision
dismissing the Bains’ application.

[26] The minority agreed with the majority insofar as it overturned the relief
allowing the Bain s to demolish the existing wooden pole fence, to erect a new
wooden pole fence on the boundary between the erven and to have clause P(b)(i)
deleted. Save for that, their judgments diverged.

[27] The majority held that the High Court had misinterpreted the servitude and
misconstrued the meaning of utilitas (utility) in finding that this requirement for a
praedial servitude was not satisfied.14 In its view, the element of utility was indeed
present in that —

“[t]he right to the garden is reserved on the servient land and it inures
in favour of the Berzack property , serving the pursuit of Ms Berzack’s
personal pleasure or caprice. . . . The fact that the servitudal rights are
enjoyed by the owner of the dominant tenement is a natural feature of
the praedial right.”15

[28] The utility requirement was also satisfied insofar as the servitude increased
the economic potential of Ms Berzack’s property . The majority held further that the
garden servitude in question was akin to the praedial servitude of view; and that the
intention of Ms Berzack and Mr Wellens in 1983 , was that the garden servitude
should be reserved for the benefit of both Ms Berzack and her successors -in-title in
perpetuity.16 Its registration as a praedial servitude by the Registrar of Deeds could
therefore not be faulted.

[29] The minority pointed out that the determination of the rights under a servitude
is not simply a matter of interpreting its terms. Sometimes the peremptory principles

14 Id.
15 Id at para 24.
16 Id.
DODSON AJ
15 of property law will override the intention of the parties.17 It placed considerable
emphasis on the presumption against a servitude , including that component of it that
operates in favour of a personal over a praedial servitude .18

[30] According to the minority, t he operative provisions of the servitude conferred
on Ms Berzack the right to use the servitude to tend her garden and to access it for
that purpose. The only indications that the servitude was praedial were the
reference to successors -in-title and the identification of the two properties, one being
subject to a servitude area and one in whose favour the servitude area op erated.

[31] The minority held further that t he rights imposed were, by their nature,
personal to Ms Berzack. On this basis it concluded that the intention of the parties
was to create a personal servitude allowing Ms Berzack to “enjoy gardening in the
servitude area”.19 The servitude fell squarely within the definition of the personal
servitude of usus .20 To the extent that Ms Berzack sought to impose the servitude
not only in favour of herself but also on her successors -in-title, section 66 of the
Deeds Registries Act precluded its registration.21

[32] The minority also consider ed the matter from the perspective of the
requirements for a praedial servitude. It considered that the requirement of utility
was not satisfied by a mere view of the servient property. Whilst an increase in
market value might afford utility, this they held must flow from the enhanced
usefulness of the dominant property deriving from the servitude. For perpetuity , the
servient property must have a particular attribute afford ing some permanent
advantage to the dominant property. Neither requirement was satisfied.22


17 Here they referenced the late Prof Van der Walt in his work The Law of Servitudes (Juta & Co Ltd, Cape
Town 2016) at 189.
18 Supreme Court of Appeal judgment above n 13 at paras 45-6. This is discussed later in the judgment.
19 Id at para 53.
20 Id at paras 54-5.
21 Id at para 56. Section 66 of the Deeds Registries Act is set out at para [100] below.
22 Supreme Court of Appeal judgment above n 13 at paras 60, 65 -6 and 68.
DODSON AJ
16 In this Court
Applicant ’s submissions
[33] In their application for leave to appeal the Bains do not seek to reinstate the
relief granted in their favour by the High Court , allowing them to demolish the fence
in the servitude area and erect a fence on the boundary. They seek only to secure
the relief that would have been granted by the minority of the
Supreme Court of Appeal, namely to rectify the servitude to reflect it as a personal
servitude of usus in favour of Ms Berzack. Consistent with this stance, the Bains in
essence base their case on appeal on the reasoning of the minority in the Supreme
Court of Appeal.

[34] The Bains make the point that “a significant difference between a praedial
servitude and a personal servitude is that the intensity of the burden imposed by the
latter is much greater than the intensity of the burden imposed by the former”.
Personal servitudes allow the servitude holder to exercise certain central
entitlements of ownership.23 If personal servitudes were allowed to operate as
praedial servitudes, thus permitting the servitude holder to exercise the central
entitlements of ownership in perpetuity, he or she would , the Bains submit, become
the de facto owner of the subject property, with the registered owner left as the
nominal or token owner of the property .

[35] On the basis of this analysis the Bains make the submission that —

“the underpinning policy of section 66 of the Deeds Registries Act is to
avoid this outcome by specifically providing that the personal
servitudes of usufruct, usus and habitatio [(habitation)] shall not extend
beyond the lifetime of the person in whose favour it is created”.

Yet, they contend, this is the effect of the servitude in question.

23 They refer here to the rights to possession and use of the property, along with the right to the natural and civil
fruits of the property. The natural fruits or fructus naturales are those that are the products of nature such as
fruit from a tree or crops. Civil fruits are constituted by income derived from property, such as rental. See
Muller et al (eds) Silberberg and Schoeman’s The Law of Property 6 ed (LexisNexis, Durban 2019) ( Silberberg
and Schoeman ) at 50.
DODSON AJ
17
[36] The Bains assert jurisdiction solely under this Court’s general jurisdiction in
terms of section 167(3)(b)(ii) of the Constitution on the basis that the matter raises
an arguable point of law of general public importance .

First respondent’s submissions
[37] Ms Berzack places considerable reliance on the assertion that this Court’s
general jurisdiction is not engaged. She submits that the matter raises questions of
fact, not law. To the extent that it might be held that the Bains raise as a question of
law that praedial servitudes only impose benign restrictions on the main entitlements
of ownership, whereas personal servitudes divest the owner of the central
entitlements of ownership, she submits that the point is not arguable. This is
because there is no authority for it and the argument is at variance with the central
tenets of the common law on servitudes. What in truth distinguishes personal
servitudes from praedial servitudes , she says , is that the former are inseparably
attached to the identity of a particular beneficiary, not to the dominant property.

[38] Ms Berzack contends that the garden servitude in question imposes no
greater burden than other recognised praedial servitudes, including those which
afford the dominant landowner the exclusive right to trade on the property of
another;24 the praedial servitude of jutting beams, which provides for overhangs on
balconies ,25 and praedial servitudes that afford the owner of the dominant property
the right to establish and use parking bays on the servient property .26

[39] Ms Berzack contends that the lack of prospects of success preclude a finding
that it is in the interests of justice to grant leave to appeal. While acknowledging the
principle of restrictive interpretation of servitudes, she argues that where the
servitude is framed in unambiguous terms, a court is not entitled to ignore that

24 Hollmann v Estate Latre 1970 (3) SA 638 (A) [1970] 3 All SA 483 (A).
25 Voet Commentarius ad Pandectas Trans: Gane The Selective Voet Being the Commentary on the Pandects
(Butterworths, Durban 1955) 2 ( Voet) at 442 -3 at 8 2 3(a).
26 Olive Marketing CC v Eden Crescent Share Block Ltd 2021 (2) SA 170 (KZD) ( Olive Marketing High Court )
and, on appeal, Eden Crescent Share Block Ltd v Olive Marketing CC [2022] ZASCA 177; 2023 (3) SA 476
(SCA) ( Olive Marketing SCA ).
DODSON AJ
18 meaning in order to achieve a lesser curtailment.27 Moreover, she says the servitude
in question satisfies the five requirements for a praedial servitude including those of
utility and perpetuity.28

[40] On this basis, Ms Berzack asks that the application for leave to appeal be
dismissed.

Analysis
Jurisdiction
[41] The Bains do not contend that the matter raises any constitutional issue. The
enquiry is therefore confined to whether the matter raises arguable points of law of
general public importance which ought to be considered by this Court. Since this is
a major focus of Ms Berzack’s resistance to the application, it deserves more
attention than would ordinarily be the case.

[42] Relying on the second judgment in Media 24,29 Ms Berzack contends that this
Court will only assume general jurisdiction on “purely legal issues”, because it was
said that “mixed questions of fact and law require evaluative assessments and it is
precisely those assessments that it is not the function of this Court to tread into” .30
Apart from the fact that the second judgment in Media 24 was the minority judgment
on the issue of jurisdiction, the quote is taken out of context. On the view taken in
that minority judgment, resolving the point there in issue unavoidably required
assessing the relative merits of conflicting expert evidence . The minority considered
this a factual enquiry which it was not the function of this Court to perform,
particularly where the matter was on appeal from a specialist court, the Competition
Appeal Court.31 In this case , we are not concerned with that scenario.


27 Kruger v Joles Eiendomme (Pty) Ltd [2008] ZASCA 138; 2009 (3) SA 5 (SCA) at para 9.
28 Hollman above n 24 at 644E -645B and In Re Ellenborough Park [1956] Ch 131.
29 Competition Commission of South Africa v Media 24 (Pty) Ltd [2019] ZACC 26; 2019 (5) SA 598 (CC); 2019
(9) BCLR 1049 (CC).
30 Id at paras 134 -5.
31 Id at para 137-8.
DODSON AJ
19 [43] As this Court pointed out in Paulsen ,32 it will not entertain purely factual
matters.33 In truth it will seldom be that a question comes before this Court as a pure
question of law, divorced from the underlying facts of the case. Of course, the point
of law must be arguable, requiring a degree of plausibility that provides some
prospects of success.34 Criteria to support making that assessment include whether
“[t]he Supreme Court of Appeal . . . expressed itself on the matter by a narrow
minority”, whether a minority view in the Supreme Court of Appeal is “quite forceful”,
whether the matter raises a “new and difficult question o f law” or where “the answer
to the question in issue may not be readily discernible”.35

[44] Taking into account the majority and minority judgments of the
Supreme Court of Appeal, these criteria are satisfied in relation to at least the
following points of law:
(a) The question whether the garden servitude in question constitutes a
praedial servitude or a personal servitude.
(b) Sections 3(1)(o), 66, 67 and 76 of the Deeds Registries Act all refer
variously to personal and praedial servitudes. This judgment will give
meaning to these terms in the statute and explicate the test for
identifying praedial servitudes, an issue that is by no means settled.
(c) Section 66 of the Deeds Registries Act expressly incorporates by
reference three personal servitudes that derive from Roman and
Roman‑Dutch law, namely usufruct , usus and habitatio (habitation).
The meaning of the term usus in section 66 is a question of law that
must be determined and then applied to the facts of this matter in order
to render a decision.
(d) The content of the utility requirement for a praedial servitude is not
settled. According to the late Professor van der Walt, there are
different approaches to the utility requirement discernible amongst the

32 Paulsen v Slip Knot Investments 777 (Pty) Ltd [2015] ZACC 5; 2015 (3) SA 479 (CC); 2015 (5) BCLR 509
(CC).
33 Id at para 20.
34 Id at paras 21-2.
35 Id at para 23.
DODSON AJ
20 Roman‑Dutch authorities and in the case law.36 It is necessary to
explore these in order to decide this case.
(e) The content of the perpetuity requirement for a praedial servitude has
received relatively scant attention in the case law and is central to the
decision of this case.
(f) Contrary to the submission made by Ms Berzack, the Bains’ argument
that a distinguishing feature of personal servitudes is the intensity of
the burden imposed by them on the servient property is indeed
arguable and enjoys the support of well -respected academic writers on
the law of property.

[45] Are the above questions of law ones of general public importance ? This
raises the question whether a dispute between two neighbours over a gardening
servitude “transcends the narrow interests of the litigants and implicates the interest
of a significant part of the general public.”37 Ms Berzack contends that it does not.
In my view it does for the following reasons:
(a) If the servitude is held to be praedial it binds all future owners of both
the dominant and servient properties in perpetuity. The future owners
in perpetuity are , potentially, an infinite number.
(b) It is apparent from the affidavits of both Ms Boag and Mr Moffat, both
experienced conveyancers, that the Registrar of Deeds has registered
similar garden servitudes involving other properties as praedial
servitudes without demur. It is important for the Registrars of Deeds
that their obligations in this regard are clarified.
(c) The Registrar of Deeds has, according to them, also registered
praedial servitudes over servient properties for other recreational or
pleasurable purposes such as walking, hiking and jogging. In their
view the High Court judgment will preclude the future registration of all
these kinds of servitudes and lead to the expungement of “countless
numbers of praedial servitudes that are already registered” with

36 Van der Walt above n 17 at 128 -34.
37 Paulsen above n 32 at para 26.
DODSON AJ
21 “serious consequences for the rights of the owners of the properties
that benefit from these praedial servitudes and rely upon them” . This,
too, points to the dispute transcending the narrow interests of the
litigants.

Leave to appeal
[46] In Paulsen , the enquiry as to whether the matter was one that “ought to be
considered” by this Court was treated as co -extensive with the enquiry whether it is
in the interests of justice to grant leave to appeal.38 Considerations that are
important in this enquiry include the importance of the issues raised, the prospects of
success and whether it is in the public interest that the matter be entertained.39

[47] The split decision in the Supreme Court of Appeal, with a carefully reasoned
dissent by two of the five judges , who aligned themselves largely with the High Court
judgment, points to there being reasonable prospects of success. The Deeds Office
will benefit from clarification of its duties with reference to section 66 of the
Deeds Registries Act. The case presents an opportunity to provide some clarity on
areas of the law that have remained unclear for close -on two mille nnia. I am
accordingly satisfied that the Court has jurisdiction in terms of section 167(3)(b)(ii)
and that it is in the interests of justice to grant leave to appeal.

The legal nature of a servitude
[48] In Link Africa ,40 this Court provided an overview of the origins and nature of
servitudes.41 Our law in relation to servitudes derives from Roman law.42 A

38 Id at para 30.
39 Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd [2013] ZACC 48;
2014 (3) BCLR 265 (CC); 2014 (5) SA 138 (CC) at para 52.
40 City of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd [2015] ZACC 29; 2015 (6) SA 440 (CC);
2015 (11) BCLR 1265 (CC) . References in the context of this judgment to “the Court” are a reference to the
judgment of the majority.
41 Id at paras 132-59.
42 Id at para 139.
DODSON AJ
22 servitude is “a real right carved out of the full dominium [(ownership) ] of the owner
and transferred to another”.43 LAWSA defines servitudes as follows:

“A servitude is a limited real right that imposes a burden on movable
or immovable property by restricting the rights, powers or liberties of
its owner in favour of either another person (in the case of a personal
servitude) or the owner of another immovable property (in the case of
a praedial servitude).”44

[49] A praedial servitude involves immovable properties. It confers rights on one
property, the dominant property, over another, the servient property, upon which it
imposes corresponding burdens.45 The owner of the dominant property enjoys the
benefits of, and rights conferred by, the servitude over the servient property, but only
for as long as she is owner. Since the rights attach to the dominant property and not
its owner, when the owner transfers the land she loses the right s and they pass to
the new owner for as long as she remains owner.46 This continues in perpetuity.
The successive owners of the servient property are similarly bound in perpetuity.47

[50] Nowadays it is recognised that there is no limit to the kinds of praedial
servitude s that may be registered, as long as they satisfy the requirements for a valid
praedial servitude.48 Roman Law distinguished between rural and urban praedial
servitudes. Examples of rural praedial servitudes inherited from Roman law include

43 Id at para 135.
44 LAWSA above n 9 at para 540.
45 The properties are traditionally referred to as the dominant and servient tenements, but I will refer to them as
the dominant and servient properties.
46 Link Africa above n 40 at para 136.
47 This is subject to the statutory exception that a praedial servitude may in terms of section 75(1) and (2), read
with section 76(1) bis of the Deeds Registries Act, be registered for a limited period. As pointed out by
Van der Walt and in Silberberg and Schoeman , this would allow for the registration of a praedial servitude
subject to a resolutive condition. See Van der Walt above n 17 at 162 and Silberberg and Schoeman above n 23
at 372 fn 16.
48 Silberberg and Schoeman above n 23 at 373 and Van der Walt above n 17 at 445.
DODSON AJ
23 a right of way49 and a range of water servitudes.50 Examples of urban servitudes
inherited from Roman law include a servitude of light51 and a servitude of view.52

[51] A personal servitude is a real right of use, vesting in a person, over the
movable or immovable property of another. The right attaches to the person holding
the servitude, not to a dominant property. It burdens the servient property for the
duration of the life of the servitude holder ,53 unless a shorter period is specified in the
agreement or will creating the servitude.54 For as long as the servitude -holder is
alive, the servient property remains bound, notwithstanding a transfer of ownership.55
As with praedial servitudes, subject to these qualifications, there is no limit on the
range of personal servitudes that may be registered.56 In contrast, Roman Law only
recognised four personal servitudes namely usufruct ,57 use,58 habitation59 and

49 For example, the right to walk or drive over the property of another ( via) and the right to herd livestock over
the property of another ( actus ). See Silberberg and Schoeman above n 23 at 377 and Spiller A Manual of
Roman Law (Butterworths, Durban 1986) at 124.
50 For example, the right to source water on the servient property and lead it in a furrow or pipe over the servient
property to the dominant property ( aquaeductus ), and the right to water livestock of the owner of the dominant
property on the servient property. Water servitudes of this nature survive only to the extent that the
National Water Act 36 of 1998 allowed certain existing servitudes at the time of its promulgation to continue.
See also Van der Walt above n 17 at 431.
51 The servitus luminibus non officiendi . This is the right to a free flow of light to the dominant property from
the servient property. It may preclude the owner of the servient property from erecting a structure or growing
trees above a particular height so as to interfere with the flow of light, the servitus altius non tollendi . See
Silberberg and Schoeman above n 23 at 378 and Pickard v Stein 2015 (1) SA 439 (GJ).
52 Known in Roman law as servitus ne luminibus, and ne prospectui officiator, or the duty which a man owes to
his neighbour’s land not to obstruct his light or his prospect . See Silberberg and Schoeman above n 23 at 378.
53 In the case of a juristic person, it burdens the servient property for 100 years, or until the juristic person is
dissolved. See Van der Walt above n 17 at 458.
54 National Stadium South Africa (Pty) Ltd v FirstRand Bank Ltd [2010] ZASCA 164; 2011 (2) SA 157 (SCA)
at paras 12 and 33 -6 gives an example of a personal servitude registered for a shorter period. See also Van der
Walt n 17 at 488. In relation to the analogous position in respect of a servitude of usufruct, see Van der Walt at
483 and the authorities at fn 111.
55 Link Africa above n 40 at paras 136-7 and Van der Walt above n 17 at 455. This is unless the personal
servitude is lawfully terminated during the life of the servitude holder.
56 Van der Walt above n 17 at 460.
57 Ususfructus , or, in Roman -Dutch Law, lijftocht , which gives the rights to occupy and use the immovable
property of another, and to take its natural and civil fruits. See Van der Walt above n 17 at 464 -74 and
Van der Merwe Sakereg 2 ed (Butterworths, Durban 1989) at 508 -20. It may also apply to movable property.
58 Usus , or, in Roman -Dutch law, bruick, which gives the rights to occupy and use the immovable property of
another and take such fruits as are required for the use of the servitude holder and her family. See Van der Walt
above n 17 at 488 -92 and Van der Merwe above n 57 at 521 -3. It may also apply to movable property.
59 Habitatio , which gives the right to occupy and use the immovable property of another for residential
purposes. See Van der Walt above n 17 at 464 -74 and Van der Merwe above n 57 at 523 -4.
DODSON AJ
24 services, the latter in the form of the use of a slave or animal.60 Save for services ,
not only have the se servitudes been inherited as part of our common law, but they
are also recognised and regulated by statute in section 66 of the Deeds Registries
Act.

[52] Praedial and personal servitudes are created either by conditions included in
a deed of transfer61 of immovable property or by registration of a notarial deed.62 In
this case t he former method was employed.

[53] Against this backdrop I now turn to consider how the provisions in a deed of
transfer or notarial deed creating a servitude are interpreted.

Interpretation
[54] The starting point in interpreting a servitude was described in Willoughby’s63
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.”64

[55] That presumption operates at three levels. First, it is presumed that the
property is free of any servitudes at all. Second, if the servitude is proven, it is
presumed to impose the least onerous burden. Third, if it is unclear whether t he

60 Operae servorum and operae animalium. Nowadays, the latter servitude would simply be treated as falling
under usus. See Van der Merwe above n 57 at 524 -5.
61 Section 76 of the Deeds Registries Act in respect of praedial servitudes and section 67 in the case of personal
servitudes.
62 Section 75 of the Deeds Registries Act in respect of praedial servitudes and section 65 in the case of personal
servitudes.
63 Willoughby’s Consolidated Company Ltd v Copthall Stores Ltd 1918 AD 1 at 16.
64 Id at 16. On the Roman -Dutch law origins of the presumption, see Kruger v Joles Eiendomme above n 27 at
para 8.
DODSON AJ
25 servitude is praedial or personal, the presumption favours a personal servitude.65
However, where the terms of the servitude are clear and unambiguous, the
presumption does not operate and effect must be given to the servitude on its
terms.66

[56] I pause here to point out that the language used in the authoritative judgments
on the interpretation of servitudes is outdated. This is no doubt because they
generally predate the judgments of this Court and the Supreme Court of Appeal that
modernis e the approach to the interpretation of legal instruments .67 I will base the
interpretation o f the terms of the servitude in question on the modern judgments ,
which require that the exercise be approached “holistically: simultaneously
considering the text, context and purpose ”.68

[57] Applying these principles of interpretation to the present matter, there are two
components to the interpretive exercise. The first is to establish the content of the
rights capable of being exercised by Ms Berzack, and the forbearance69 imposed on

65 Jonordon Investment (Pty) Ltd v De Aar Drankwinkel (Edms) Bpk 1969 (2) SA 117 (C) at 125H -126B and
Van der Walt above n 17 at 193. Neither party called for, or adduced any evidence to support, any development
of the common law pertaining to servitudes or their interpretation in terms of section 39(2) or section 173 of the
Constitution. As this Court has pointed out, the modern approach to property ownership under the Constitution
eschews the notion that the owner enjoys absolute control, use and enjoyment of her land to the exclusion of all
other competing private and public interests. This was aptly described in Link Africa , as “a more supple
conception of ownership rights”. See Link Africa above n 40 at para 106 and the authorities referred to at fn 74
of that judgment. That more supple conception might call for a reassessment of the approach to the
interpretation of servitudes, which is arguably based on the prior more absolutist notion of property ownership.
Against that, however, one would have to consider the fact that property rights have been accorded
constitutional protection in section 25 of the Constitution; and that praedial servitudes bind future owners who
were not party to their original formulation or imposition. Any such a development of the law is, however, a
conversation for another day.
66 Kruger v Joles Eiendomme above 27 at para 9; Van Rensburg v Taute 1975 (1) SA 279 (A) at 301G and
Van der Walt above n 17 at 196.
67 See, for example, University of Johannesburg v Auckland Park Theological Seminary [2021] ZACC 13; 2021
(6) SA 1 (CC); 2021 (8) BCLR 807 (CC) ( Auckland Park Theological Seminary ) at paras 63-9; Chisuse v
Director -General, Department of Home Affairs [2020] ZACC 20; 2020 (6) SA 14 (CC); 2020 (10) BCLR 1173
(CC) ( Chisuse ) at paras 46-59 and the authorities there referred to; and Natal Joint Municipal Pension Fund v
Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA) at paras 17-26.
68 Auckland Park Theological Seminary id at para 65.
69 I use the word “forbearance” because generally a servitude may not impose upon the owner of the servient
property any positive or active duties. This is referred to as the passivity principle. Silberberg and Schoeman
above n 23 at 374 -6 at para 14.3.1.4.
DODSON AJ
26 the Bains, under the servitude. The second is to determine whether the servitude in
question is praedial or personal.

[58] The operative part of the servitude for purposes of identifying the primary
rights afforded and forbearance imposed, is in clause P(b)(ii). That affords
Ms Berzack the right to “plant, control, care for and renew the existing garden
situated within the servitude area”. It is common cause that the gardening does not
take place over the entire servitude area. The word “existing” would mean that the
garden itself would be confined to the limits that existed when the servitude was first
established in 1983. It is not disputed that this is precisely the area in which
Ms Berzack gardens today.

[59] Clause P(b)(iii), conferring upon “the [s]eller . . . full rights of access to [the]
servitude area”, determines access for purposes of exercising the gardening rights.
In Ms Berzack ’s own words in her answering affidavit, she says :

“Since 1983 , I have continued openly and as of right, to exercise (as
owner of my property) exclusive control over the portion of my garden
that now falls on the Huntrex property in the same manner I did before
the subdivision .”

She is supported in her stance that this is what was intended by the servitude, by the
evidence of Mr Wellens , who was the first owner to receive transfer of the subdivided
portion and consented to the terms of the reservation of the servitude in the deed of
transfer . This provides important context.

[60] Taking into account this evidence of the factual matrix at the time of the
conclusion of the original servitude document, the words “full rights of access” in
clause P(b)(iii) must mean exclusive access, at least in that part of the servitude area
that is bounded by the wooden pole fence in existence at the time of the creation of
the servitude and still in place today.

[61] It is common cause that the effect of the wooden pole fence is to preclude
entirely the rights of access and possession that the Bains would, as owner of the
DODSON AJ
27 land, otherwise be able to exercise in the servitude area. There was some
suggestion that clause P(b)(i) (which precludes erection of any wall or fence on the
servitude boundary other than extension of the existing wooden pole fence), exists
as a distinct, negative praedial servitude separate from clause P(b)(ii) and (iii). I
disagree. In my view it is ancillary to, and part and parcel of, the servitude created
by clause P(b)(ii) and (iii). Although the wording is a little obscure, in my view it
serves to protect Ms Berzack’s exclusive use of the area that she gardens. This is
because it is implicit in the wording that the existing wooden pole fence can only be
extended, it cannot be removed.

[62] The corollary of Ms Berzack’s exclusive access to the servitude area for
gardening is that the Bains are entirely deprived of any access to, possession of, or
use for any purpose of the servitude area, or at least that part of it behind the
wooden pole fence. None of the ordinary incidents of ownership accrue to them in
respect of that portion, although counsel for Ms Berzack pointed out that the Bains
would, as the owner s of their property, be entitled to object to any use by her that fell
outside the terms of the servitude.

[63] Is the servitude personal or praedial? The terms of the servitude are in my
view ambiguous in this regard . As the minority pointed out , “the wording . . . pulls, at
times, in different directions”.70 In one breath the servitudinal rights are conferred on
the person of Ms Berzack. In the next, they are conferred on Ms Berzack’s property .
That ambiguity brings the presumption favouring a personal servitude into play. But
the reference twice in the conditions to the conferral of the rights also on successors -
in-title, favours a praedial servitude . The evidence of both Ms Berzack and
Mr Wellens as to what they sought to achieve at the time also tends to favour a
praedial servitude. On balance, and notwithstanding the presumption , I accept that
based purely o n the wording of the deed of transfer creating the servitude, they
intended to create a praedial servitude.


70 Supreme Court of Appeal judgment above n 13 at para 49.
DODSON AJ
28 [64] That however is not the end of the enquiry, because, as is pointed out by
Van der Walt—

“the nature and content of a servitude depends to a degree on the
intention of the parties creating it, but the law will not give effect to the
intention of the parties if they intended to do something that is not
possible according to the principles of property law .”71 (Emphasis
added .)

[65] This raises the questions whether the servitude complies with the principles of
property law pertaining to the requirements for a valid praedial servitude and
whether, if it does not, the servitude is a personal servitude registered in conflict with
the requirements of section 66 of the Deeds Registries Act.

[66] The requirements for a praedial servitude are essentially duality, vicinity
perpetuity, utility and passivity. In this case , we have two separately -owned,
adjacent properties, so the duality and vicinity requirements are satisfied. In relation
to the passivity requirement, the Bains have no positive duties arising from the
servitude. This means that the passivity requirement is satisfied. What then of the
remaining two requirements, perpetuity and utility?


71 Van der Walt above n 17 at 217. See also the extract quoted from Van der Walt at 189 above at [ 29]. As
authority for this proposition, Van der Walt relies on Lorentz v Melle 1978 (3) SA 1044 (T). That case
concerned a property that had been purchased jointly by L and V. When they took transfer they divided out
from the jointly owned property a Portion A and a Portion B. L would have exclusive ownership of Portion A
and V would have exclusive ownership of Portion B. They registered as a condition in the title deeds in respect
of Portion A and B reciprocal undertakings, that if either developed a township on their portion, the other would
have an entitlement to 50% of the net profit derived from the sale of erven in the township. The conditions were
retained in the title deeds when subdivisions of Portions A and B were sold and transferred. One of these
transferees sought relief that had the effect of deleting the condition pertaining to the reciprocal entitlement to a
50% share of the profits on the basis that it gave rise to a personal obligation as between L and V, was not
binding on successors in title, was not capable of registration and ought not to have been registered. The
transferee was successful before both a single judge and, on appeal, a full court of the Transvaal Provincial
Division. Notwithstanding the intention of L and V to include the condition as part of the servitude, the full
court said that “the sanctity of the register must in the present matter yield to the need for deleting what I regard
as the incorrect registration of a contingent personal right”. Whilst the matter concerned a contingent personal
obligation not capable of registration, rather than a personal servitude, it supports the point that the intention of
the parties cannot prevail over the principles of property law.
DODSON AJ
29 Perpetuity
[67] LAWSA has the following explanation of the perpetuity requirement:

“The use made of the servient land must be based on some
permanent feature or attribute of the servient land. The servient
tenement must be capable of continuously fulfilling the needs of the
dominant tenement. This is known as the requirement of perpetual
purpose .”72 (Emphasis added .)

[68] The requirement traces its origins to a passage in the Digest based on views
attributed to the jurist Paulus . It refers to the requirement of perpetuity in the context
of water servitudes and states that “all real [ that is, in this context, praedial]
servitudes are required to depend on the causes that are perpetual”.73 Paulus’ view
is that water servitudes will thus only be recognised where there is a natural supply
of water or rainwater.

[69] The view is also expressed in th e same part of the Digest that “what is
effected by human hands has not perpetual cause” .74 On the basis of this statement,
the late Professor de Waal questions the accuracy of this part of the Digest as a
basis for a general, self -standing perpetuity requirement. He does so because by
the time that Paulus wrote, Roman law had developed to accept that a servitude may
be based on something that was constructed by human hands , such as a building.
He refers in this regard to the various urban praedial servitudes that are based upon
a construction on the servient property .


72 LAWSA above n 9 at para 548.
73 The Digest of Justinian (Digest ) Trans: Mommsen et al (University of Pennsylvania Press, Philadelphia 1985)
at 8 2 28; and De Waal Perpetua causa (permanente grondslag) as vestigingsvereiste vir grondserwitute (1991)
54 THRHR 705 at 719, with the English translation of the Latin text in fn 7. The translation is attributed to
Monro. Spiller above n 49 at 17 describes Paulus as a jurist who served as praefectus praetorio (a high
administrative office) under the emperor Alexander Severus (222 -235 AD).
74 De Waal (1991) above n 73 at 719 -21. See also De Waal Die Vereistes vir die Vestiging van Grondserwitute
in die Suid -Afrikaanse Reg (LLD thesis, University of Stellenbosch, 1989) at 70 -2.
DODSON AJ
30 [70] Voet, however , accepts the perpetuity requirement as part of Roman -Dutch
law and bases his view on the above extract from the Digest .75 Professor de Waal’s
view is that the perpetuity and utility requirements are closely related and the former
may be subsumed into the latter.76 He does , however , accept perpetuity as a
continuing and important requirement. He summarises the combined requirements
of utility and perpetuity as follows:

“A praedial servitude can only be exercised to the use and advantage
of successive owners of the dominant tenement if the character,
quality or a feature (kenmerk) of the servient tenement that provides
the use or advantage is constant (standhoudend), not accidental or
transient.”77

[71] The requirement has received some attention in the case law. Watermeyer J
in Dreyer ,78 like Paulus, regarded a servitude of aqueduct as requiring a natural
source ( aqua viva ) of water. By contrast, Professor de Waal refers to various cases
where water servitudes were recognised in respect of man -made structures like
dams and where no regard is had to the source of the water.79

[72] The perpetuity requirement was seemingly first referred to expressly in
Venter80 where Hoexter JP said “[a] praedial servitude comes into existence only if
the right to be acquired by the praedium dominans [(dominant property)] is for its
perpetual benefit” .81 In Willoughby’s, the fact that the buildings erected to give effect
to the contract sought to be registered as a servitude were temporary in nature, not

75 Voet above n 25 at 50 2-3 at 8 4 1 7.
76 De Waal (1991) above n 73 at 735(c).
77 Id at 736. The translation from Afrikaans is mine.
78 Dreyer v Ireland (1874) 4 Buch 193 at 199 in a minority judgment seemingly not contradicted on this aspect
by the majority.
79 De Waal (1991) above n 73 at 731.
80 Venter v Minister of Railways 1949 (2) SA 178 (EC) at 185.
81 Id.
DODSON AJ
31 involving any durable construction, was an indicator for the court that there was no
intention to establish servitudinal rights.82

[73] Based on this survey of the academic writings and the case law, I am satisfied
that perpetuity remains a distinctive requirement for the existence of a praedial
servitude , albeit one that is closely related to the utility requirement . The servitude
must therefore “ be based on some permanent feature or attribute of the servient
land”.83

[74] Turning to the facts of this case, whilst the garden has been maintained by
Ms Berzack for more than 50 years, it cannot be considered a “permanent feature or
attribute” or a “characteristic” that inheres in the Bains’ property that will be
constantly present in perpetuity. A garden is subject to the vagaries of drought,
flood, hail, pests, climate change, neglect by a disinterested or absent owner or
tenant and so on. Without more, i t involves no durable natural feature, nor any
permanently constructed feature. It requires constant upkeep, including watering,
fertilising, replanting , pruning, mowing and trimming.

[75] The wooden pole fence is neither a distinctive feature nor a durable
installation in the way that a brick and mortar structure might be. The underlying
land on which the garden is kept is like any other land, including vacant land on
Ms Berzack ’s property. It lacks any permanent feature or attribute to serve
Ms Berzack’s property in perpetuity.

[76] In the circumstances , I am of the view that the garden servitude does not
satisfy the perpetuity requirement of a praedial servitude.

Utility
[77] Utility is the next requirement to consider. LAWSA describes this requirement
as follows:84

82 Willoughby’s above n 63 at 18.
83 LAWSA above n 9 at para 548.
84 LAWSA above n 9 at para 549.
DODSON AJ
32
“A praedial servitude must offer some permanent advantage or
benefit to the owner of the dominant land qua [(in their capacity as)]
owner and must not merely serve his or her personal pleasure or
caprice. This is known as the requirement of utilitas . The locus
classicus [(classic example)] of this requirement is a Digest text85
which states that a praedial servitude cannot be constituted to allow
the owner of the dominant tenement to pick fruit or to promenade or
dine on another’s land. Such a right advances the pleasurable
pursuits of a person and does not increase the utility of landed
property.”86

[78] Significantly for the present matter, Voet explains the rationale behind the rule
precluding a servitude based on pleasurable pursuits, as follows:

“To promenade, to dine and to pick fruit is a right not of such an estate
but of a person, and is related rather to the delectation of human
beings than to the benefiting of landed estates. . . . Apart from that it is
not to be doubted that picking fruit, promenading and dining on
another’s ground can without question be brought into a servitude of
use, restricted in a definite manner.”87

[79] Voet is supported in this strict approach to praedial servitudes by Huber , who
adds singing, dancing and playing to the list of examples of activities that do not
establish a servitude .88 A number of respected South African academic writers
express the firm view that a praedial servitude cannot be established for the personal
pleasure of the owner of the dominant property, although it may form the basis for a

85 Digest above n 73 at 8 1 8, again attributed to the writings of the jurist Paulus.
86 LAWSA above n 9 at para 549. It does go on to qualify this by saying, on the authority of Voet, that a praedial
servitude will be recognised where the servitude provides benefits additional to those that are purely
pleasurable.
87 Voet above n 25 at 432 at 8 1 1.
88 De Waal (1989) above n 74 at 117 citing Huber Heedensdaegse Rechtsgeleertheyt, soo elders, als in
Frieslandt gebruikelik 5 ed (De Groot and Schouten, Amsterdam 1768) Trans: Gane The Jurisprudence of my
Time 5 ed (Butterworths, Durban 1939) vol 1 and 2 at 2 43 9.
DODSON AJ
33 personal servitude.89 This was stated as being part of our law in the judgment of
Davis AJ in De Kock .90 Indeed Ms Berzack in her written submissions described the
fifth requirement as “utility provided to the dominant tenement that is not merely
aimed at the pleasure or caprice of the person who happens to be the owner
thereof”.

[80] In applying this requirement to the facts of this case, we are constrained by
the factual finding of the High Court , the majority and the minority of the
Supreme Court of Appeal, on a conspectus of the evidence put up, that the garden
servitude in this case, to quote the majority of the Supreme Court of Appeal ,91 served
“the pursuit of Ms Berzack’s personal pleasure or caprice”.92 The High Court arrived
at its conclusion also having had the benefit of a site inspection. As an appellate
court, we may not lightly interfere with that factual finding.93

[81] It is so that Voet acknowledges that the utility requirement is satisfied where a
servitude affords both pleasure and utility. This is discusse d under the heading
“[p]raedial servitudes may be granted for both pleasure and benefit.”94 Relevant to
this authority, Ms Berzack argues that the gardening servitude also provided a view
over the servitude area. I do not accept this argument. Any pleasurable right given
over the property of another that involves access to it, will always afford a view over
that servient property. Indeed , in many urban homes, there is a view over the
neighbour’s garden simply by reason of its proximity, not by reason of any servitude.
In any event, the view contemplated by a servitude of view is surely the ability to see
into the distance beyond one’s immediate confines, not 20 metres into the
neighbour’s garden. The view cannot therefore provide the requisite additional

89 Van der Walt above n 17 at 130 -1; Hall Servitudes 3 ed (Juta & Co Ltd, Cape Town 1973) at 2, Silberberg
and Schoeman above n 23 at 374 and fn 25; and Hahlo and Kahn The Union of South Africa: The Development
of its Laws and Constitution (Juta & Co Ltd, Cape Town 1960) at 602.
90 De Kock v Hanel 1999 (1) SA 994 (C) at 998G.
91 Supreme Court of Appeal judgment above n 13 at para 24.
92 Id at para 57 and the High Court judgment above n 9 at paras 13-17.
93 Rex v Dhlumayo 1948 (2) SA 677 (A) at 705 -6 and Makate v Vodacom Ltd [2016] ZACC 13; 2016 (4) SA
121 (CC); 2016 (6) BCLR 709 (CC) at para 39.
94 Voet above n 25 at 500 -1 at 8 4 15.
DODSON AJ
34 element to constitute the form of utility envisaged for a praedial servitude , and the
majority of the Supreme Court of Appeal was in my view incorrect in this regard.

[82] Ms Berzack attempts to deal with this difficulty by saying —

“Voet confirms [that] a servitude which is directed at increasing the
pleasure of the dominant landowner is likely also to increase the
enjoyment of the property as a whole, and that is likely to increase the
market value of the property, which is sufficient to satisfy the
requirement of utility”.

[83] Reliance is placed on Hollmann95 in this regard. There are the following
difficulties with this argument:
(a) The Appellate Division in Hollmann only went as far as saying that
Voet96 and Brunneman97 “appear to be of the view that a servitude
would qualify as a praedial servitude if it would raise the price of the
dominant [property] ”.98 Moreover, the comment is obiter (made in
passing) because the Appellate Division went on to decide that the
utility in that case lay in the exclusive right of the owner of the dominant
property to trad e on the servient and dominant properties and the
protection from competition that came with that restraint.
(b) De Waal’s comment on the extract from Voet relied on for this view is
that it is inconsistent with Huber and with Voet’s approach to the utility
requirement in every other respect.99
(c) To the extent that Hollmann is to be considered as authority for an
increase in market value providing the requisite utility, this has been
criticised by most South African authors “because the decision
effectively does not require any direct land -use link between the

95 Hollmann above n 24.
96 Id at 644G quoting Voet above n 25 at 501 at 8 4 15.
97 Id at 644 G quoting Digest above n 73 at 8 1 19.
98 Hollmann above n 24 at 644H (emphasis added).
99 De Waal (1989) above n 74 at 120 -1.
DODSON AJ
35 servitude and the dominant land and therefore abandons the utility
requirement altogether”.100

[84] I am accordingly not satisfied that value enhancement is a sufficient basis for
satisfying the utility requirement. Yes, it may be a consequence of the utility
otherwise afforded by a servitude. But value enhancement is not sufficient in and of
itself to satisfy the utility requirement. Judgments suggesting otherwise were not
correctly decided.

[85] Even if this were not the case, the question whether or not a servitude
enhances the market value of a property is something which cannot simply be
speculated on. Qualified valuers must provide evidence on market value101 and
there is authority as to the methodology to be used in assessing the enhancement or
reduction in value brought about by the registration of a servitude.102 Although both
the minority and majority in the Supreme Court of Appeal (and the Bains) accepted
that there may be an enhancement in market value brought about by the servitude in
question, this was not based on any reliable evidence of market value. Accordingly,
even if an increase in market value was sufficient to establish utility, there is no
evidentiary basis for a finding in this regard.

[86] Accordingly, the utility requirement for a praedial servitude is also not
satisfied.

Consequences of absence of utility and perpetuity
[87] Before dealing with the consequences of the failure to satisfy the perpetuity
and utility requirements, regard must be had to Ms Berzack’s reliance on the
judgment of the England and Wales Court of Appeal in Ellenborough Park.103 That
case concerned a large rectangular garden, 350 yards by 100 yards, around which
houses had been built on three sides, with the fourth side open to the sea. The

100 Van der Walt above n 17 at 144 -5.
101 Gildenhuys Onteieningsreg 2 ed (Butterworths, Durban 2001) at 207 -33.
102 Id at 242 -4.
103 Ellenborough Park above n 28.
DODSON AJ
36 houses were designed so that they would have one communal garden rather than
individual gardens.104 The original deeds of transfer conferred on the owners of the
houses and their successors -in-title, jointly, full rights of access to and enjoyment of
the garden, subject to a fair share of the costs of maintaining it. The issue in dispute
was whether this amounted to a binding easement, the equivalent for present
purposes of a praedial servitude. The English law of easements was strongly
influenced by Roman Law. There was however debate about whether that extended
to the rejection of easements for purely recreational or pleasurable purposes. The
Court of Appeal said —

“we do not think that the right to use a garden of the character with
which we are concerned in this case can be called one of mere
recreation and amusement . . . No doubt a garden is a pleasure – on
high authority, it is the purest of pleasures; but, in our judgment, it is
not a right having no quality either of utility or benefit as those words
should be understood. Its use for the purposes, not only of exercise
and rest but also for such normal domestic purposes as were
suggested in argument – for example, for taking out small children in
prams or otherwise – is not fairly to be described as one of mere
recreation or amusement , and is clearly beneficial to the premises to
which it is attached. ”105

[88] A binding easement was therefore found to exist , benefitting not only the
original owners, but also the successors -in-title to the houses surrounding the
garden. It is noteworthy that the Court of Appeal found that the garden in question
was distinctive and that the utility went beyond “mere recreation and enjoyment ”.
This was, to a degree , an acknowledgement of the continuing impact of the principle
deriving from Roman Law.


104 Id at 166 -7.
105 Id at 179.
DODSON AJ
37 [89] In Regency Villas ,106 the United Kingdom Supreme Court nevertheless treated
Ellenborough Park as a development of the common law so as to include rights in a
communal garden that were “essentially recreational” as affording the requisite
“service, utility and benefit” to constitute an easement .107 On this basis, the
Supreme Court consider ed whether or not to endorse Ellenborough Park. That case
concerned a timeshare development in which the owners of the timeshare
apartments as the dominant properties had an easement purporting to confer rights
to a park and manor house, as servient property, with a range of sporting facilities,
including a golf course, tennis courts, squash courts, a gym, a billiards room and a
heated pool. In deciding on its validity, t he Supreme Court took into account
judgments in Canada108 and Australia109 that held that an easement could be
established in relation to recreational rights.110 The Supreme Court held that it —

“should affirm the lead given by the principled analysis . . . in In re
Ellenborough Park by a clear statement that the grant of purely
recreational (including sporting) rights over land . . . may be the subject
matter of an easement.”111

However, this was subject to compliance with the other requirements for a valid
easement,112 including that the rights genuinely benefit the dominant property. The

106 Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2019] AC 553.
107 Id at paras 48-53 and 74 -81.
108 See Dukart v Corpn of the District of Surrey [1978] 2 SCR 1039 and Blankstein v Walsh [1989] 1 WWR
277.
109 Riley v Penttila [1974] VR 547 and City Developments Pty Ltd v Registrar General of the Northern Territory
[2000] NTSC 33, 135 NTR 1.
110 Regency Villas above n 106 at paras 77-8.
111 Id at para 81.
112 In English law these are (a) there must be a dominant property; (b) the easement must accommodate the
dominant property; (c) the dominant and servient owners must be different persons; and (d) the right must be
capable of forming the subject -matter of a grant. The latter requirement breaks down into requirements that the
terms of the easement should not be too broad and vague; the easement should not “deprive the servient owners
of proprietorship or possession” and the rights must provide utility or benefit to the dominant property. See
Ellenborough Park above n 28 at 179 and Regency Villas above n 106 at para 35.
DODSON AJ
38 Supreme Court took into account that sport and recreation are “a beneficial part of
modern life.”113

[90] The present matter is distinguishable from these two judgments in important
respects. The ouster principle in English law precludes an easement that has the
effect of depriving the owner of the servient property of lawful possession and
control. In both judgments, the courts enquired into the question whether the
servient property owners were so ousted and held that they were not.114 By contrast,
the Bains and their successors -in-title are entirely deprived of possession in the
servitude area. There is no sharing of possession of the servitude area with the
owners of the servient property, or, as was the case in Regency Villas , with
members of the public. In both Ellenborough Park and Regency Villas , the
properties were developed in ways that the garden and the recreational facilities
were permanent features serving to benefit the dominant properties. Under South
African law, unlike Ms Berzack’s garden, this would have satisfied the perpetuity
requirement. In Ellenborough Park, the costs of maintaining the garden were shared
amongst the owners of the dominant and servient properties. No provision
equivalent to section 66 of the Deeds Registries Act c ame into play in the English
cases.

[91] Nevertheless, the development of the common law in the United Kingdom and
other countries to accommodate recreational servitudes is something that cannot be
ignored in this country. Arguably i t would be a dystopian society that failed to
recognise the utility of recreational praedial servitudes that are otherwise compliant
with property law principles , particularly if they are created for the benefit of the
public or communities .

[92] Our courts have shown a willingness, when called upon to do so, to develop
the common law of servitudes in terms of section 173 of the Constitution so as to

113 Regency Villas above n 106 at para 81.
114 Id at paras 60-5 and Ellenborough Park above n 28 at 176.
DODSON AJ
39 adapt to modern conditions.115 It may also be appropriate in particular
circumstances to relax the strict application of one or more of the five requirements
for a praedial servitude in order to develop , on a case by case basis, 116 new praedial
servitudes that are manifestly of benefit to society and are not unduly oppressive to
the owner of the servient property or precluded by statute .117

[93] For a number of reasons, this is not the case for a development of the law
along the lines of English law or otherwise . Ms Berzack did not seek the
development of the common law. Both parties plea ded and argued the case based
on the common law as it stands. Before developing the common law, consideration
would have to be given to whether or not a legislative amendment is a better manner
of proceeding. Even if we were to develop the law in relation to the utility
requirement, Ms Berzack does not satisfy the perpetuity requirement. The fact that
the servitude in this case was conceived in the context of an attempt to circumvent a
land use ordinance does not provide fertile ground for a significant development of
the common law. And the complete ouster of the Bains’ possession of the servitude
area presents a significant difficulty. I will return to this later .

[94] The upshot is that the garden servitude in question does not qualify as a
praedial servitude. Section 3(1)(o) of the Deeds Registries Act provides that the
Registrar of Deeds “shall, subject to the provisions of the Act . . . register any
servitude, whether personal or praedial”. Section 76(1) provides that “[a] praedial
servitude in perpetuity . . . may be created in a transfer of land only if the servitude is

115 Linvestment CC v Hammersley [2008] ZASCA 1; 2008 (3) SA 283 (SCA) at paras 25 -33 and Pickard above
n 51 at paras 42 -4.
116 A case for such a development would have to be properly pleaded and supported by appropriate evidence.
See, for example, MEC for Health and Social Development, Gauteng v DZ obo WZ [2017] ZACC 37; 2017 (12)
BCLR 1528 (CC); 2018 (1) SA 335 (CC) at paras 29 and 57 -8.
117 This has arguably been done in the past, for example, in the case of the praedial servitude of outspan
registered against the title deeds of a privately -owned property, the servitude being in favour of members of the
travelling public in need of a place to outspan their cattle, not in favour of a dominant property. This does not
satisfy the duality (two properties) requirement. See Hall above n 89 at 122 -3. Van der Merwe above n 57 at
544, does not however recognise outspan as a true servitude because of the absence of duality. Nowadays,
registration of such a servitude may be precluded by sections 75(1) and 76(1) of the Deeds Registries Act, which
appear to render the duality requirement a statutory obligation. The need for such servitudes has in any event
fallen away since the arrival of motor transport.
DODSON AJ
40 imposed on the land transferred in favour of other land registered in the name of the
transferor”.

[95] In terms of these provisions the Registrar of Deeds purported to register the
servitude in question as a praedial servitude upon transfer of what is now the Bains’
property from Ms Berzack to Mr Wellens on 21 September 1983. However, because
the servitude did not qualify as a praedial servitude, there was no lawful basis to do
so.

Was the servitude lawfully registered as a personal servitude?
[96] Having found that the servitude in question was not capable of registration as
a praedial servitude, the question that follows is whether the servitude was
registerable as a personal servitude.

[97] Section 67 of the Deeds Registries Act provides that “[a] personal servitude
may be reserved by condition in a deed of transfer of land if the reservation is in
favour of the transferor ”.

[98] As discussed above ,118 Voet explains why pleasurable servitudes may not be
registered as praedial servitudes but goes on to say that “it is not to be doubted that
picking fruit, promenading and dining on another’s ground can without question be
brought into a servitude of use , restricted in a definite manner” .119

[99] From this it is clear that Voet considers that a servitude over immovable
property that is for the pleasure of a person may be recognised as a personal
servitude of use. However, he qualifies it by saying that it must be “restricted in a
definite manner”. This requires that the servitude must be framed in accordance with
its character as personal, not praedial , and in accordance with what is recognised as
a servitude of use.


118 Above at [78].
119 Emphasis added.
DODSON AJ
41 [100] Section 66 of the Deeds Registries Act also comes into play. It is headed
“Restriction on registration of personal servitudes ”, and reads as follows:

“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 tran sfer or cession of such personal
servitude to any person other than the owner of the land encumbered
thereby, be registered.”

[101] Applying this provision to the servitude in this case, it is clear from the
reference in clause P, the opening paragraph of the servitude, to “and [her]
successors -in-title as owner s of the Remainder of Erf 3[...] C[...] ” and from the words
in parentheses at the end of the servitude, “the term Seller shall include her
Successors -in-Title”, that it purports to extend beyond the lifetime of the person in
whose favour it has been registered. Accordingly, if the underlying servitude is one
of usufruct , usus or habitatio , it has been registered in breach of section 66.
Similarly, the servitude will not have been “restricted in a definite manner”, as
required by the common law.120

[102] There was no suggestion that the servitude was one of usufruct or habitatio .
Is the servitude one of usus ? In making this assessment, it seems to me that one
must, in applying section 66 and having established that it cannot be a praedial
servitude, ignore the components of the servitude that purport to extend beyond the
life of the person in whose favour it is created and look at the essence of the right
created. The essence of the right created is to be found in paragraphs (b)(i) to (iii) of
the servitude , interpreted in the factual context provided by the evidence.

[103] Van der Walt describes usus as follows:

“The personal servitude of use . . . is similar to but narrower than
usufruct. The beneficiary of a servitude of use . . . can, like the

120 Voet above n 25 at 432 at 8 1 1.
DODSON AJ
42 usufructuary, use the property of another 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 of use is terminated.”121

[104] In my view, the nature of the access to and conduct within the servitude area
provided for in paragraphs (b)(i) to (iii) of the servitude falls squarely within the above
description of usus . It simply affords Ms Berzack exclusive occupation and use of
the servitude area for the purpose of gardening. She herself described it in her
answering affidavit as “a right of exclusive use” (emphasis added). The fact that , as
found by the High Court and all of the judges of the Supreme Court of Appeal, she
uses it for the pursuit of her personal pleasure or caprice, is dispositive of it being a
personal servitude , and , on the authority of Voet, is entirely compatible with the
servitude of usus .

[105] There is another perspective from which the matter may be assessed. As I
have found above, the terms of the servitude, interpreted in the context provided by
the affidavits of Ms Berzack and Mr Wellens, confer exclusive access to and use of
at least that part of the servitude area that falls behind the wooden pole fence.122
The Bains are entirely deprived of virtually all of the main components of the rights
that are constitutive of ownership. That represents a significant burden on the
property from their perspective.

[106] Silberberg and Schoeman identify as one of the criteria on the basis of which
praedial and personal servitudes may be distinguished, the nature of the burden
imposed by the servitude. In this regard, they s tate the following:

“If on e considers the duration of a praedial servitude, [it] imposes a
significan t burden on the servient tenement because the burden is in
principle perpetual. However, if one considers the use and enjoyment

121 Van der Walt above n 17 at 488 .
122 See [10] above.
DODSON AJ
43 entitlements of the servient owner, a personal servitude (like usufruct)
places a more intense burden on the servient owner over a relatively
shorter period of time than a praedial servitude (like the right of way or
a grazing right) which places a bu rden of comparabl[y] lower intensity
on the servient owner perpetually.”123

[107] This is precisely the complaint raised by the Bains about the nature of the
servitude that has been registered against their property. Their property must bear
the “more intense burden” associated with a personal servitude over the period of
infinite duration associated with a praedial servitude. The effect is to sterilise some
25% of their property in perpetuity (34% if one includes the full servitude area
including that outside of the area gardened). With justification, they complain that
Ms Berzack cannot have it both ways. Section 66, they say, is there to prevent
precisely this situation.

[108] Ms Berzack’s answer to this is to point to recognised servitudes that she
contends have a similar impact.124 In this regard, she identifies t he servitudes
associated with overhanging balconies and beams jutting into a neighbour’s
property . However, these servitudes manifestly have a lesser intensity than the
servitude she asserts here. The praedial servitude affording an exclusive right to
trade in Hollman could be exercised anywhere on a servient property s panning 836
morgen125 in extent. The fact that the right was not exercised for over a third of a
century suggests that if there had been any market for the envisaged trade, the
stores were not going to take up much of the 836 morgen, and certainly not 25 to
34%.

[109] The example of a servitude allowing the owner of the dominant property to
establish parking bays on the servient property is offered as another example of a
praedial servitude of equal or greater intensity. For this submission, Ms Berzack

123 Silberberg and Schoeman above n 23 at 373. The same point is made by Van der Merwe above n 57 at 506,
citing Dernberg Pandekten 6 ed (Müller, Berlin 1900) at para 245.
124 These are referred to in [38] above.
125 A morgen is a unit of measurement of land equal to 0.856 hectare.
DODSON AJ
44 relies on the judgments of the High Court and the Supreme Court of Appeal in
Olive Marketing .126 These do not avail Ms Berzack. That matter involved a praedial
servitude obliging the owner of the servient property to make available at least 250
parking bays to the dominant property (where an ice rink and cinema were located)
in perpetuity.

[110] The case is distinguishable from the present matter in several respects. The
servitude did not permanently sterilise the property in the hands of the owner of the
servient property. It was entitled to charge for the use of the parking bays at the rate
prevailing in the area.127 The property was in any event statutorily bound by a
long-standing town planning scheme that compelled the servient owner to provide
the parking bays.128

[111] On the factual finding of the High Court , which was not disturbed on appeal,
there was sufficient parking within the three levels of parking at the bottom of the
retirement complex for both its residents and the users of the 250 bays.129 The utility
and perpetuity requirements for a praedial servitude were plainly satisfied. The
parking bays were a permanent installation, affording the necessary permanent
feature and the losses sustained by the plaintiff when the first defendant breached its
obligation to provide the parking bays,130 demonstrated the utility of the servitude.
The grounds of the challenge to the validity of the servitude were different from those
in this case. It did not involve a servitude for the pleasure of a particular person.

[112] In the circumstances, it is quite clear that the servitude is indeed a personal
servitude of usus , which purports to have been registered beyond the lifetime of
Ms Berzack. This was done in breach of section 66 and should never have been
allowed by the Registrar of Deeds.


126 Olive Marketing High Court and Olive Marketing SCA above n 26.
127 Olive Marketing High Court id at para 30.
128 Id at para 36.
129 Id at para 104 and Olive Marketing SCA above n 26 at para 20.
130 See Olive Marketing High Court above n 26 at para 4 of the order.
DODSON AJ
45 The second judgment
[113] The second judgment suggest s, with reference to Malan ,131 that th is judgment
overlooks the fact that the decisive factor in distinguishing servitudes is whether
there is a dominant property .132 If one considers this observation in Malan in its full
context ,133 the only point the court was making is that in a praedial servitude the
servitudinal rights attach to a property, being the dominant property , whereas in a
personal servitude they attach to a person, so there is no dominant property .

[114] That begs the question whether a praedial servitud e has lawfully been
registered in favour of the dominant property . If a servitude is registered as a
praedial servitude either in conflict with the principles of pro perty law,134 or in breach
of section 66 of the Deeds Registries Act , the mere fact that a dominant property is
referred to in the deed purportedly establishing the servitude takes the matter no
further. It is precisely this enquiry as to the lawfulness of the registration in favour of
Ms Berzack’s property that we are concerned with in this case.

[115] The second judgment emphasis es the “clear wording” of the servitude.135
Whilst I do not agree that the wording is clear, it is so that the wording of the
servitude reflected an intention to register and reflect a praedial servitude in the
records of the deeds registry .136 The primary indicator of that intention is that it
purports to extend beyond the lifetime of Ms Berzack in favour of her successors -in-
title. But this leaves unanswered the question as to whether the servitude is lawful .
That requires an enquiry in this case into whether the servitude in fact satisfies the
requirements for a praedial servitude or those of a personal servitude. This must
include the evidence of the parties as to how the servitude operates in practice.


131 Malan v Ardconnel Investments (Pty) Ltd 1988 (2) SA 12 (A) at 37D.
132 Second judgment at [ 148]-[149].
133 Malan above n 131 at 37C -G.
134 See above at [64], quoting Van der Walt above n 17 at 217.
135 Second judgment at [ 150].
136 See above at [8].
DODSON AJ
46 [116] What I have set out earlier in this judgment demonstrates why the finding is
unavoidable that the servitude in question is personal. Central to this is a factual
finding of the High Court and all of the judges of the Supreme Court of Appeal that
the servitude , to quote the majority, “serv[es] the pursuit of Ms Berzack’s personal
pleasure or caprice” .137 The finding leaves no room but to hold that the servitude is
personal , particularly when taken in conjunction with Ms Berzack’s own description
of it as “a right of exclusive use”. And, on good authority,138 the more exclusive the
use, the more probable that the servitude is personal, not praedial.

[117] The second judgment asserts that if the servitude was to be treated as
personal, it would extend beyond Ms Berzack’s alienation and vacation of the
dominant property .139 However, that assumes that a personal servitude always
endures for the life of the servitude holder. As I have pointed out,140 it does not
invariably do so . Given t he factual circumstances here , particularly the integration of
the garden on the servitude area with the garden on the dominant property , with the
purpose being the pursuit of Ms Berzack’s personal pleasure or caprice, the personal
servitude was bound to end when she alienated and vacated the property. Even in
its form as currently registered , the servitude d oes not purport to give her use of the
property beyond alienation.

[118] The second judgment prefers the line of academic thought that treats
perpetuity as being closely related with utility and subsumed by it as a
requirement.141 I agree that perpetuity and utility are closely related. The permanent
feature of the servient property is what affords the utility to the dominant property.
But to collapse them into one overlooks an essential feature of a servitude . It risks
the registration of servitudes that unfairly burden the servient property owner’s land ,
as is the case here if the Bains are refused relief . Even if perpetuity is subsumed by

137 Supreme Court of Appeal judgment above n 13 at para 24.
138 See above [105] -[107] .
139 Second judgment at [ 151].
140 At [51] above.
141 Second judgment at [ 154].
DODSON AJ
47 utility , the servitude in this case does not withstand scrutiny as a praedial servitude
for the reasons I have given .142

[119] The second judgment characterises the perpetuity requirement as being
whether the condition establishing the servitude is “designed to have permanent
operation”.143 I respectfully disagree. The perpetuity requirement contemplates
“some permanent feature or attribute of the servient land ”144 that is capable of
permanently fulfilling the needs of the dominant property . Its focus is on a feature or
attribute of the land , not on the deed creating the servitude. The reference in this
judgment to the impermanence of a garden is a reference to the absence of a
permanent feature o n the land constituting the servient property to satisfy the
perpetuity requirement . A garden is, for the reasons given, not a permanent feature
or attribute of the land on the servient tenement for the purposes of satisfying this
requirement .

[120] Nor can the land itself constitute the permanent feature of the land to satisfy
the perpetuity requirement. Logically that must be so. To suggest that land itself
can be the permanent feature , as the second judgment also does,145 is to do away
with the perpetuity requirement . Land is required for the existence of any servitude
and it will always be there. The danger with recognising land in and of itself as
providing the requisite permanent feature of the land, is that the distinction between
ownership and servitudinal rights is undermined. O ne may then end up with
precisely the unjust situation that confronts us here. The owners of the servient
property in perpetuity have , to all intents and purposes , forfeited ownership under the
exclusive terms of the servitude.


142 I say this subject to the enquiry below as to whether the requisite perpetual benefit may be provided in this
case by an increase in market value.
143 Second judgment at [ 156].
144 See [67] above, citing LAWSA above n 9.
145 Second judgment at [ 158].
DODSON AJ
48 [121] The second judgment suggest s146 that this judgment is at odds with my own
judgment in Pickard147 and with that of the High Court in De Kock .148 This is not so.
Neither judgment turned on the perpetuity requirement . The question in those cases
was whether a permanent loss of the utility of a servitude resulted in the permanent
loss of the servitude itself. Pickard found that it di d.149 De Kock assumed that it did ,
without deciding the question ,150 and held on the facts, that the utility of the servitude
was not permanently lost. If anything, Pickard implicitly supports a perpetuity
requirement, particularly if it is seen as a component of utility (as the second
judgment does) . On that basis a permanent loss of perpetuity means the permanent
loss of the servitude. Van der Walt makes the same point.151

[122] The second judgment refers to Van der Walt’s conception of the perpetuity
requirement as being one that is not absolute but relative.152 However, in saying
this, Van der Walt still requires that there be a “feature or characteristic of the
servient land” that is relatively durable.153 Even if this were to be accepted , a planted
garden is in my view not a “feature or characteristic” of the land for the purposes of
satisfying the perpetuity requirement ; nor is it “relatively durable” for the reasons I
have given .

[123] The second judgment cites several examples of servitudes recognised by the
old authorities that survive periods of interruption . This, it seems to be suggested,
casts doubt upon the existence of a perpetuity requirement as understood in this
judgment . It is important to consider the context in which the examples are cited by
the old authorities . At least one of the examples derive s from a discussion of the

146 Second judgment at [ 158] and [ 163].
147 Pickard above n 51.
148 De Kock above n 90.
149 Pickard above n 51 at paras 34-44.
150 De Kock above n 90 at 999D -E.
151 Van der Walt above n 17 at 164.
152 Second judgment at [ 162], citing Van der Walt above n 17 at 164 -5.
153 Van der Walt above n 17 at 164 -5.
DODSON AJ
49 loss of praedial servitudes through non -use.154 The section of Van Leeuwen relied
upon in the second judgment also pertains to the loss of servitudinal rights due to
non-use for the period of prescription.155 This has no bearing on the perpetuity
requirement. The fact that a servitude will survive non-use by the owner of the
dominant property for up to thirty years ,156 and sometimes longer in the case of a
negative praedial servitude , is not an indication that there is no perpetuity
requirement or that it is somehow attenuated , as I will explain .

[124] The example in question comes from the Digest . It is based on the negative
praedial servitude that prevents building above a certain height on the servient
property so that light may flow to the dominant property.157 It assume s that the
servitude is not exercised by the dominant property owner, who covers their own
windows for an extended period. The servitude is not lost through the conduct of the
owner of the dominant property in covering their windows . This is unless the owner
of the servient property has built a structure on their property blocking the light and
has kept it in place for thirty years without the dominant owner acting to stop them .

[125] If one analyses this example from the perspective of the perpetuity
requirement , the permanent feature of the servient property is that it provides an
uninterrupted flow of light into the dominant property. That permanent feature of the
servient property is not interrupted or removed if the dominant property owner
chooses to block up their own windows. On the contrary, i t remains in place ,

154 Digest above n 73 at 8 2 6. The relevant paragraph begins as follows:
“As with rustic praedial servitudes, these rights are lost by non -use over a specific period, except that
there is the following difference. They are not lost by non -use in every case, but are only lost if, at the
same time, the servient proprietor acquires freedom from the servitude by lapse of time.”
155 Second judgment at [ 163] and n 197, citing Van Leeuwen Commentaries on Roman Dutch Law Trans: Kotze
(Steven & Heyns, London 1881) at 301 at 1266.
156 In Roman Law, the period for loss of a servitude through non -user was ten or twenty years, depending on the
circumstances. See Van der Merwe above n 57 at 539. Section 7 of the Prescription Act 68 of 1969 deals with
extinctive prescription of servitudes and provides as follows:
“(1) A servitude shall be extinguished by prescription if it has not been exercised for an
uninterrupted period of thirty years.
(2) For the purposes of subsection (1), a negative servitude shall be deemed to be exercised as
long as nothing which impairs the enjoyment of the servitude has been done on the servient
tenement.”
157 Second judgment at n 195. Digest above n 73 at 8 2 2.
DODSON AJ
50 whether or not the dominant owner decides to unblock the window s and enjoy the
servitude that is in place . The owner’s non -use does not give rise to non -compliance
with the perpetuity requirement.

[126] If, however, the owner of the servient property erects a high building on it that
blocks the light , the effect is to eliminate the permanent feature of the servient
property . If the obstructing building remains in place for a period exce eding the
extinctive prescription period , without the dominant owner acting to have it removed ,
the servitude is los t. It is lost because the feature allowing the uninterrupted flow of
light is permanently lost. That confirms rather than undermines the perpetuity
requirement as explicated in this judgment. The permanent feature must be in place
for the servitude to continue to exist .

[127] Analysis of the example of a n urban servitude allowing a beam to be
extended into a wall of a neighbouring servient property,158 yields a similar result.
Voet says that such a servitude is “renewed ” when the house on either the servient
or the dominant property falls down and is then rebuilt.159 The permanent feature is
the supporting wall on the servient property . If only the dominant owner’s house falls
down, the permanent feature of the supporting wall remains in place. If the house
with the supporting wall on the servient property falls down and is rebuilt, the
permanent feature has been restored and the servitude remains in place.

[128] As the second judgment points out, a river in a n arid area might support a
water servitude, even if the river runs dry periodically.160 But here the riverbed
rema ins throughout a permanent feature or characteristic of the land on the servient
property, capable of supplying the dominant property with water when the rain fills it .
The access afforded by a right of way to and from a particular point over the servient
property remains a permanent feature or characteristic, even if it becomes
overgrown through non -use.161 A servitude of grazing or pasturage affords a

158 Second judgment at [ 161] and n 185.
159 Voet above n 25 at 441 at 8 2 2; and second judgment at n 185.
160 Second judgment at [ 161].
161 It would, though, be extinguished by prescription if not used for thirty years.
DODSON AJ
51 permanent supply of natural grasses suited to feeding cattle , reviving naturally after
they were depleted during a drought or destruction for some other reason .162 The
various examples do not therefore undermine the perpetuity requirement . They
confirm it.

[129] The second judgment expresses the view that the perpetuity requirement
could not have survived the enactment of section 76(1) of the Deeds Registries Ac t
because it provides for “a praedial servitude in perpetuity or for a limited period”.163 I
respectfully disagree. All that it does is introduce the statutory option of a praedial
servitude for “limited period s”.164 It express ly retains the option of a servitude in
perpetuity and, if anything, adds statutory force to the distinct common law
requirement of perpetuity .

[130] Insofar as utility is concerned, the second judgment relies on Voet’s assertion
that “praedial servitudes may be granted for both pleasure and benefit”.165 As
appears from what I have said earlier in the judgment , I agree with this statement of
the law . The second judgment identifies an increase in market value deriving from
both the aesthetic appeal and exclusive access to and control over the servitude
area, as providing the requisite additional benefit. Here I respectfully differ.

[131] As authority for the increase in market value constituting benefit , the
second judgment cites Voet’s example of a servitude that allows for water to be led
from a servient property , not for irrigation but for the dominant property’s “leaping
fountains” and “gently murmuring waterfalls”.166 Of this example, Voet says that

162 Badenhorst v Joubert 1920 TPD 100 at 105. The court held there that in determining the extent of the
grazing right of the dominant property over the servient property, the reasonable needs of the owner of the
servient property for grazing and other agricultural activities had to be taken into account. The grazing on the
servient property had to be shared accordingly. See pages 106 -12. This too distinguishes the servitude in the
present matter.
163 Second judgment at [ 155]. Section 6(1) pertains to the establishment of a praedial servitude in a deed of
transfer. Section 75(1) has a similar provision in relation to the establishment of a praedial servitude by
notarial deed. These provisions were amended by sections 34(a) and 35(a) respectively of the Deeds Registries
Amendment Act 43 of 1957 by the insertion of the words “in perpetuity or for a limited period”.
164 Hall above n 89 at 10.
165 Second judgment at [ 168], citing Voet above n 25 at 501 at 8 4 15.
166 Voet above n 25 at 501 at 8 4 15. Second judgment at [166].
DODSON AJ
52 such rights “will not be praedial servitudes for any other reason tha n that the price of
the tenement . . . is raised because of them .”

[132] As regards Voet’s suggestion that the additional , non -aesthetic utility can be
provided by an increase in the market value of the dominant property , De Waal says :

“Myns insiens is dit egter te geïsoleerd en ongemotiveerd om enigsins
as oortuigen d aangemerk to word. ‘n Uitgangspunt s ó vreemd aan die
oorwegende benadering tot die utilitas -vereiste sou immers meer
gesag vereis as hierdie enkele stelling van Voet .”167

[133] Van der Walt and other authors are also critical of this view .168 Referring to it
as the widest approach to utility, he goes on to say —

“CG van der Merwe . . . argues that the most important objection
against the widest approach is that it effectively abolishes the utility
requirement, which could result in the imposition of unbearable
burdens on servient land and inhibit a healthy land market.”169

The outcome on the reasoning of the second judgment would indeed give rise to the
unbearable burden to which Van der Merwe refers.

[134] There is also , with respect, a contradiction inherent in the second judgment
insofar as it on the one hand finds as a source of increased value (and thereby
utility) the exclusively controlled “encroach [ment ]” twenty metres into the servient
property,170 yet on the other hand hints at the possibility of further proceedings by the
Bains on the basis that Ms Berzack does not exercise the servitude civiliter modo (in

167 De Waal (1989) above n 74 at 121. It may be translated as follows:
“In my opinion, however, it is too isolated and unmotivated to be considered convincing at all.
A point of departure so foreign to the prevailing approach to the utilitas requirement would
require more authority than this single statement of Voet”.
168 Van der Walt above n 17 at 131.
169 Id at n 270.
170 Second judgment at [ 165].
DODSON AJ
53 a civil way ).171 If the exercise of exclusive control by Ms Berzack is unlawful on this
ground, it cannot sustain the utility requirement . Nor does the potential for legal
proceedings restricting exclusive control leave space for assuming that the servitude
enhances the value of the dominant property.

[135] I do not join in the second judgment ’s assertion that there is no scope for the
development of the common law of servitudes in terms of section 39(2) of the
Constitution. Indeed , it would be in conflict with section 39(2) and section 173 of the
Constitution for this Court to declare in advance that it would not perform the
constitutional obligations resting on it in this regard. The common law of servitudes
cannot simply be cast aside because it is based on an absolutist theory of property
ownership. Yes, whilst aspects such as the presumption against servitudes might be
open to criticism on that basis, that is a matter that could be addressed by way of a
development of the common law. The outcome in this judgment demonstrates that
the common law principles retain a logic that is relevant in today’s society. In Link
Africa172 this Court demonstrated how the law of servitudes could be harnessed in
support of a socially desirable outcome. In terms of section 22(4)(c) of the Land
Reform (Labour Tenants) Act,173 the Land Court may award a servitude to a labour
tenant to protect rights of access to water and the like. Other statutes also provide
for the expropriation of servitudes for the public weal.174 The application of the
common law of servitudes together with the relevant provisions of the Deeds
Registries Act in this judgment gives rise to a fair result which is not absolutist by any
means.

[136] The common law of servitudes is intertwined with the common law of
property , so a reconfiguration and codification would have to cover both. It would be
a massive and complex undertaking , likely spawning more litigation on the
interpretation of the new statute or statutes . My own view, for what it is worth, is that

171 Id at [178].
172 Link Africa above n 40.
173 3 of 1996.
174 See, for example, sections 2(1) and 5(1), both read with section 12(1)(b) of the Expropriation Act 63 of 1975;
sections 126 to 134 of the National Water Act 36 of 1998; and section 19(1) of the Gauteng Transport
Infrastructure Act 8 of 2001. See also Link Africa above n 40 at para 140 and fn 107.
DODSON AJ
54 the time of the Executive, the Legislature and the Judiciary would be better spent
ensuring , as best they are able, that the land reform provisions in section 25 of the
Constitution bear the fruit that they promise .

The third judgment
[137] I respectfully differ from the reasoning and proposed order in the third
judgment. Amongst other things, n o case was pleaded on the basis that the
servitude was not exercised civiliter modo . This is not remedied by questions having
been put to counsel from the bench at the hearing in this Court. The interpretation of
the servitude in the third judgment does not , with respect, take into account the
factual and legal context in which the servitude was established , as set out earlier in
this judgment .175

[138] In relation to the modification of the fencing provided for in the third
judgment’s proposed order, the relief granted to the Bains by the High Court in this
regard was overturned by both the majority and the minority in the Supreme Court of
Appeal. In the founding affidavit in the application for leave to appeal to this Court,
the Bains adopted without reservation the reasoning and order that would have been
granted by the minority. That renders the question of the modification of the fencing
res judicata (a matter already decided) against the Bains , notwithstanding the broad
wording of the notice of application for leave to appeal . This Court is therefore
precluded from entertaining that issue, as the third judgment seeks to do.

Remedy
[139] What is the appropriate remedy where a court finds that a servitude has been
registered without statutory authorisation to do so in terms of section 76(1) and in
contravention of section 66 of the Deeds Registries Act? The Act makes no express
provision for the appropriate form of relief. In Pickard ,176 it was held that the superior
courts have a broad jurisdiction under the Deeds Registries Act in appropriate cases

175 At [60]-[63].
176 Pickard above n 51.
DODSON AJ
55 to order changes to the title deeds.177 It referred to various provisions of the Act
pointing to such a jurisdiction and went on to say:

“Such powers derive also from the courts' inherent jurisdiction at
common law and under section 173 of the Constitution. Thus in Ex
parte Millsite Investment Co (Pty) Ltd178 Vieyra J examined the
historical development of land registration and the role of the courts in
that regard in Holland and the Cape from the sixteenth century
onwards, and went on to hold as follows:
‘In its origin then the acts of transfer, hypothecation and
similar burdening of land and all matters ancillary thereto
were judicial acts. In view of the inherent jurisdiction
above referred to and the historical circumstances
regarding land registration it would be surprising if the
Courts did not claim to have the right of surveillance over
the whole system and to interpose their authority in the
interests of justice. A consideration of various decided
cases shows that this is what happened. Thus it has
intervened to authorise rectification of deeds of transfer:
see Nhlapo v Nhlapo ,179 where a review of various cases
will be found at [page] 499.
. . .
It seems to me, accordingly, that there is ample support
for the view that the Supreme Court does possess the
inherent power of interposition in matters pertaining to
land registration and matters ancillary thereto. ’”180

[140] In those circumstances, the High Court plainly had the power to order the
rectif ication of the deed of transfer in question by changing it to reflect the personal

177 Id at para 79.
178 1965 (2) SA 582 (T) at 585D -586G.
179 1946 NPD 492.
180 Pickard above n 51 at para 80.
DODSON AJ
56 servitude that ought originally to have been registered, based on the evidence before
the Court. This should have render ed the deed compliant with sections 66 and 76(1)
of the Deeds Registries Act . However, the rectification ordered by the High Court
needs to be corrected in the following respects to reflect the outcomes in the
Supreme Court of Appeal and in this Court.

[141] Paragraphs 1 to 4 of the order of the High Court allowed the Bains to
demolish Ms Berzack’s wooden pole fence and erect a new one along the boundary
between their respective erven. Both the majority and the minority in the
Supreme Court of Appeal agreed that those paragraphs should be set aside . That
component of the order of the Supreme Court of Appeal was not challenged before
this Court and i t must stand.

[142] Paragraph 6 of the order of the High Court ordered that “clauses P(b)(ii) and
(iii) shall cease to have force or effect upon the death of [Ms Berzack] .” It fails to
provide for the scenario where Ms Berzack alienates the property before she dies.
On the order of the High Court , she would remain entitled to exercise her servitudinal
rights over the servitude area , despite no longer being the owner of the property from
which she accesses the garden . As has already been pointed out, t his would ma ke
no sense. Paragraph 6 should also have provided for the possibility of lawful
termination of the servitude by any other means earlier than her death or alienation
of the property .

[143] Paragraph 8 of the High Court ’s order fell short in the following respects:
(a) The High Court deleted clause P(b)(i) of the servitude when no case
was made out for this relief.
(b) The High Court inserted a new clause Pbis to replace clause P(b)(i)
and amend it so as to align with the relief granted in relation to the
fences . Because that relief was wrongly granted, clause Pbis stands to
be deleted and P(b)(i) reinstated, including the cross -references to that
clause .

[144] Paragraph 10 of the order of the High Court directed that Ms Berzack pay the
Bains’ costs. This needs to be revisited because the relief granted in paragraphs 1
DODSON AJ
57 to 4 ought to have been refused by the High Court . In my view, an order granting the
Bains two thirds of their costs in the High Court would be a fair reflection of what the
outcome should have been in that Court. Ms Berzack successfully appealed against
paragraphs 1 to 4 in the Supreme Court of Appeal . That relief was not challenged
before us. In this Court, t he Bains , broadly speaking, successfully defended the
balance of the relief granted by the High Court . An order that Ms Berzack pay two
thirds of the Bains’ costs in the Supreme Court of Appeal would fairly reflect what the
outcome ought to have been there. The Bains have been wholly successful in this
Court. They are accordingly entitled to their costs in this Court.

[145] The Registrar confirms in his report that “[f]rom a registration point of view
there are no objections to the order being granted as prayed”, subject to compliance
with the usual requirements for any act of registration consequent upon a court
order.

Order
[146] The following order is made :
1. Leave to appeal is granted.
2. The appeal is upheld .
3. The order of the Supreme Court of Appeal is set aside and replaced
with the following order:
“(1) Leave to appeal is granted.
(2) The appeal is upheld.
(3) The order of the High Court is amended to read as follows:
‘1. The second respondent is ordered to rectify c lause P of
deed of transfer No. T10518/2017 executed at the office
of the Registrar of Deeds, Cape Town on
28 February 2017 so as to read as follows:
‘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
DODSON AJ
58 parallel to the boundary marked DE on
Diagram No 5253/1981 of the Remainder of
Erf 3[...] C[...] , held by the said Transferor,
Margot Berzack (born Illman) married out of
community of property to Jeffrey Cyril
Berzack, under Deed of Transfer No. 38631
dated 31 st 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 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.’
2. It is declared that clauses P(b)(i), (ii) and (iii) of the
servitude —
(a) were in their original form not lawfully capable of
being registered in the title deed, or of operating,
as a praedial servitude over Erf 8[...] C[...] , (a) in
favour of the remainder of Erf 3[...] C[...] , or (b)
beyond the lifetime of the first respondent in favour
of her successors -in-title, and the second
respondent erred in permitting those clauses to be
so registered;
DODSON AJ / CHASKALSON AJ
59 (b) were in their original form and are in their rectified
form, lawfully capable of operating only as a
personal servitude of usus over Erf 8[...] C[...] in
favour of the first respondent;
(c) in their rectified form shall cease to have force or
effect upon the death of the first respondent, or the
alienation of Erf 3[...] by the first respondent, or if
otherwise lawfully terminated, whichever is the
earlier.
3. The balance of the relief sought by the applicant is
dismissed.
4. The first respondent is ordered to pay two thirds of the
costs of the applicant, including the costs of two counsel. ’
(4) The app licant is ordered pay two thirds of the costs of the first
respondent in the applications for leave to appeal and the
appeal to the Supreme Court of Appeal , including the costs of
two counsel. ”
4. The first respondent is ordered to pay the applicant’s costs of the
application for leave to appeal and the appeal in this Court , including
the costs of two counsel.



CHASKALSON AJ (Zondo CJ concurring ):


[147] I have read the judgments of my colleagues Dodson AJ (first judgment) and
Bilchitz AJ (third judgment). I find myself disagreeing with the reasoning of the first
judgment and its conclusions on the merits of the appeal. In my view, the servitude
in this case is a praedial servitude and I would therefore grant leave to appeal but,
dismiss the appeal.

[148] The first judgment’s focus on the elements of permanence and utility
overlooks the fact that:
CHASKALSON AJ
60
“It is the existence or non -existence of a dominant tenement which is
the decisive factor in differentiating between personal and praedial
servitudes.”181

[149] In the present case, there is a dominant tenement, namely the Berzack
property. The primary clause of the servitude is clearly designed to create a praedial
servitude which operates in favour of the Berzack property as opposed to a personal
servitude vesting rights only in Ms Berzack. It states:

“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[...] C[...] , held by the said Transferor, MARGOT
BERZACK (born ILLMAN) married out of community of property to
Jeffrey Cyril Berzack under Deed of Transfer No. 38631 dated
31st December 1970. ” (Emphasis added.)

While clauses (b)(ii) and (b)(iii) of the servitude might be thought to contemplate a
personal servitude by vesting rights in “[t]he Seller”, the servitude makes clear that
these are not rights personal to Ms Berzack because it states that “the term SELLER
shall include her Successors in Title”.

[150] Quite aside from its clear wording, the garden servitude has no rationale
unless it is seen as being in support of the Berzack property, not least because the
garden which Ms Berzack and her successors in title are entitled to plant, control,
care for and renew in terms of the servitude, is a garden which straddles both the
Berzack property and the Bains property. Ms Berzack is not given the rights in
respect of a self -contained garden on the Bains property. She is given rights in
respect of a single integrated garden, which has always served the house on the
Berzack property and a substantial part of which remains on the Berzack property.

181 Malan above n 131 at 37C-E.
CHASKALSON AJ
61
[151] Moreover, the servitude cannot be seen as a personal servitude vesting rights
in Ms Berzack because it does not vest any rights in her, independent of her
ownership and occupation of the dominant tenement, namely the Berzack property.
If the servitude was to be treated as a personal servitude, it would entitle Ms Berzack
to enter the Bains property to plant and care for that part of the garden on the Bains
property even after she sold the Berzack property and ceased to occupy it. That
would clearly be an absurd result. The absurdity would be magnified by the fact that
after Ms Berzack sold the Berzack property, she would no longer have the right to
enter onto the Berzack property at all, still less to plant and care for any part of the
garden on the Berzack property.

[152] In order to address the absurdity of this outcome, the first judgment is forced
to treat the servitude as a personal servitude in favour of Ms Berzack but one which
is limited to the period in which she remains owner of the Berzack property. Thus
the logic of the first judgment depends on the creation of a hitherto unrecognised
hybrid of personal and praedial servitudes – a personal servitude that is defined with
reference to the ownership of a dominant tenement by the person in whose favour it
is created.

[153] Apart from these complications which flow from treating the servitude as a
personal servitude in favour of Ms Berzack, that conclusion can only be achieved by
simply ignoring the express wording of the servitude that makes clear that the rights
that the servitude vests in “the Seller” are rights which vest in Ms Berzack’s
successors in title to the Berzack property when they take ownership of the Berzack
property.

[154] What then of the permanence and utility requirements for praedial servitudes?
I shall assume for the purposes of argument that permanence is an independent
requirement for a praedial servitude despite the fact that there is a strong argument
to the contrary. In this regard, as Van der Walt points out:182

182 Van der Walt above n 17 at 158.
CHASKALSON AJ
62
“[T]he majority of South African authors currently merely emphasise
that there is a close correlation between perpetuity and utility, which
suggests that perpetuity is regarded as an aspect of utility rather than
an independent requirement.”183

[155] It is also difficult to see how a common law requirement of perpetuity for
praedial servitudes could have survived the enactment of section 76(1) of the Deeds
Registries Act, which states:

“A praedial servitude in perpetuity or for a limited period may be
created in a transfer of land only if the servitude is imposed on the land
transferred in favour of other land registered in the name of the
transferor, or is imposed in favour of the land transferred on other land
registered in the name of the transferor .” (Emphasis added.)

[156] In any event, the notional requirement of permanence would be satisfied in
this case. The wording of the servitude described makes clear that the servitude
was designed to have permanent operation. That interpretation of the servitude is
confirmed by the evidence of both Ms Berzack and the first owner of the Bains
property , Mr Wellens, who concluded the servitude agreement with Ms Berzack.

[157] Notwithstanding the wording of the servitude and the evidence of the parties
who created it, the first judgment finds that the servitude fails the “permanence”
requirement for praedial servitudes because —

“[a] garden is subject to the vagaries of drought, flood, hail, pests,
climate change, neglect by a disinterested or absent owner or tenant
and so on. Without more, it involves no durable natural feature, nor
any permanently constructed feature. It requires constant upkeep,

183 The authorities cited by Van der Walt bear out this proposition. They are Erasmus et al Lee and Honoré:
Family, Things and Succession 2 ed (Butterworths, Durban 1983) at para 372; Van der Merwe above n 57
at 471; and Badenhorst et al Silberberg and Schoeman’s The Law of Property 5 ed (LexisNexis, Durban 2006)
at 323. See also De Waal (1991) above n 73.
CHASKALSON AJ
63 including watering, fertilising, replanting, pruning, mowing and
trimming.”184

[158] This reasoning in the first judgment conflates two separate issues: the
permanence in relation to the servitude of the land and soil on which the garden
grows, and the permanence of the garden itself. The feature of the Berzack property
which is required to satisfy the requirement of “permanence” is the former, not the
latter. Thus, as was pointed out in De Kock :

“Indeed in Digest 8.3.13 it is stated that a servitude can be acquired for
a particular type of estate, for example a vineyard, because in this case
the right attaches to the soil rather than to the surface. For this reason
the servitude remains in force even if the vineyard is removed .”185
(Emphasis added.)

[159] Moreover, logic dictates that any “permanence” requirement must be
approached in this fashion. Even before climate change, the interior of South Africa
has always been an arid region with periodic droughts in which perennial rivers run
dry. This does not mean that no praedial servitudes allowing the flowing of water
across a servient tenement into a dominant tenement could ever exist in the interior
of our country. Similarly, a right of way, if not maintained, will become overgrown
and unusable.186 That does not mean that no right of way can ever satisfy the
“permanence” requirement of a praedial servitude.

[160] A garden that is neglected or harmed by drought can be revived when the
drought is broken or the owner stops neglecting it. So a praedial servitude providing
for a garden would not fall foul of the “permanence” requirement because of the
mere possibility that it may be damaged by drought or fall into disrepair if the owner
of the dominant tenement neglects it. That is generally true. It is clearly the case in

184 See the first judgment at [ 74].
185 De Kock above n 90 at 998I-999A. See also Voet above n 25 at 519 at 8 6 4 which confirms this principle.
186 See, for example, Braun v Powrie (1903) 20 SC 476.
CHASKALSON AJ
64 the present matter where the servitude with which we are concerned is “ the right to
plant, control, care for and renew the existing garden” .187

[161] The first judgment seeks to distinguish the permanence of the garden
servitude in the present case from the permanence of servitudes of unblocked light,
supporting beam extensions, rights to draw water and rights of way.188 In my view,
there is no distinction. Just as “the riverbed remains throughout a permanent feature
or characteristic of the land on the servient property, capable of supplying the
dominant property with water when the rain fills it”,189 the land and soil remain
throughout a permanent feature of the servient property capable of supporting a
garden when a drought breaks or when overgrowth is cleared. It is also difficult to
see how, despite its vulnerability to drought and weather, grass on land satisfies a
notional “permanence” requirement of praedial servitudes when it is necessary to
support the well -recognised praedial servitude of grazing,190 but not when it is
necessary to support a garden servitude.

[162] Van der Walt treats “permanence” not as absolute but merely as requiring
durability. On his review of the authorities, he sees permanence/durability as an
element of the utility requirement rather than a free -standing requirement of its own.
He points out:

“The possibility that the feature or characteristic of the servient land
that renders the servitude useful might in the future terminate does
therefore not mean that the servitude is not durable and thus not
useful; if that characteristic or feature appears relatively durable and
therefore useful at the time when the servitude is created it satisfies the
utility requirement, even though there is a possibility that the situation
could change in the future. Even if it is clear from the outset, at the

187 Emphasis added.
188 See [ 124] to [128].
189 See [ 128].
190 See, for example, Minister of Forestry v Michaux 1957 (2) SA 32 (N); Badenhorst v Joubert above n 162;
and Kempenaars v Jonker, Van der Berg and Havenga 1898 5 OR 223.
CHASKALSON AJ
65 time when the servitude is created, that the beneficial characteristics or
features that render the servitude useful to the dominant land will not
endure and that they will cease to exist at a certain point in the future,
the utility requirement is still met, provided that the benefit is sufficiently
durable to render the servitude beneficial for the use of the dominant
land (and its successive owners, rather than just one individual) for the
interim.” 191

[163] Confirmation of the correctness of this approach to the “permanence”
requirement can be found in analogous cases dealing with the related question of
when loss of utility causes a servitude to lapse. In this regard, Dodson AJ’s own
judgment in Pickard is instructive . In Pickard192 reference is made to a passage in
Voet that describes how a praedial servitude that has lapsed by losing all utility for a
period of time, is revived if the intervening feature that caused it to lose utility is
subsequently removed “within the time prescribed for the loss of servitudes”.193
Consistent with this position, the conclusion reached in Pickard was that it was only
when the utility of the praedial servitude had permanently ceased that the servitude
would be extinguished.194 Voet shows with several of his other examples that
servitudes do not die when the capacity of the dominant or servient property to
accommodate or benefit from the servitude is interrupted for a sustained period.195
The Digest is similarly clear on this issue,196 as is Van Leeuwen.197

191 Van der Walt above n 17 at 164-5.
192 Pickard above n 51 at para 39.
193 Voet above n 25 at 510 at 8 5 4 reads as follows:
“When action on servitude fails . — This action fails . . . if when the owner of a more remote
tenement owes a servitude of not building higher, while an intermediate tenement is free, such
owner has built up higher after the owner of the intermediate free tenement has already built
up higher in his own right. The very owner of the servient tenement cannot appear in that way
to have done anything contrary to the servitude established, inasmuch as the servitude has
already been lawfully obstructed by the intermediate owner.
When action on servitude, after failing, revives — [t]his action nevertheless revives if the
house in the middle has been taken down or lowered within the time prescribed for the loss of
servitudes.”
194 Pickard above n 51 at para 46.
195 See, for example, Voet above n 25 at 440 at 8 2 2 explaining that the servitude of letting in of beams
(tigni immitendi ) “may even be renewed when either the dominant or the servient house has entirely fallen down
or been taken down, and then in turn been reinstated”. See also Voet at 518 at 8 6 4 which makes clear that the

CHASKALSON AJ
66
[164] Thus, a praedial servitude lapses only when there is no prospect of any future
utility being provided by the servitude , not when there is a sustained period in which
the utility of the servitude is interrupted. If interruption of the utility of a praedial
servitude does not lead to its termination, it would be anomalous if the mere prospect
of such interruption would preclude a praedial servitude from coming into existence.

[165] I therefore disagree with the first judgment’s conclusion in relation to the
permanence requirement. What then of the utility requirement ? In my view, it is
clear that the owner of a dominant property derives utility qua (in the capacity of)
owner from the right effectively to ensure that the garden on the property encroaches
20 metres onto the servient property and is exclusively controlled and accessed by
the owner of the dominant property. In this regard, the garden servitude clearly
enhances the aesthetic appeal (and price) of the dominant property.

[166] There is an obvious similarity between the servitude in th e present case and
the praedial servitude in the example cited by Voet of a right to draw water from the
servient tenement to supply fountains on the dominant tenement to enhance the
aesthetic appeal and price of the dominant tenement.198 Indeed, in the very passage
that deals with this example, Voet states that any rights granted to a tenement for the
purpose of bringing enjoyment to the owner of the dominant tenement, will be
sufficient to found a praedial servitude if they increase the price of the dominant
tenement.199

principle of revival of a servitude after a demolished house or washed away farm is restored, is a general
principle applicable to all servitudes.
196 Digest above n 73 at 8 2 6:
“Suppose, for example, your house is burdened with a servitude in favour of my house,
preventing it from being raised in height, lest it obstruct my light; and suppose further that I
keep an obstruction in front of my windows or keep them blocked up for the prescribed
period. I lose my right only if you have raised and kept raised the height of your house
throughout the same period. On the other hand, if you have made no alterations, I retain the
servitude.”
197 Van Leeuwen above n 155 at 301.
198 Voet above n 25 at 501 at 8 4 15.
199 Id at 501 at 8 4 15:

CHASKALSON AJ
67
[167] The first judgment places great store on commentaries on a Digest passage
stating that a praedial servitude cannot be constituted to allow the owner of the
dominant tenement to p luck fruit or to promenade or dine on another’s land because
such a right merely serves the caprice of the owner of the dominant property and
does not increase the utility of the property .200 It proceeds to argue:

“A number of respected South African academic writers express the
firm view that a praedial servitude cannot be established for the
personal pleasure of the owner of the dominant property, although it
may form the basis for a personal servitude.”201

[168] There is an important difference between the proposition that a praedial
servitude cannot be established merely to serve the caprice of the owner of the
dominant property without increas ing the utility of the property and the proposition
that a praedial servitude cannot be established for the personal pleasure of the
owner of the dominant property. The authorities cited by the first judgment support
the first proposition, but not the second proposition.202 Voet makes clear that the
second proposition is wrong. He states that “praedial servitudes may be granted for
both pleasure and benefit” and that “in a praedial servitude the benefit and
enjoyment of persons can also go hand in hand with the benefit attaching to the
dominant tenement”.203

“[W]hatever rights are granted to a tenement, such as will bring enjoyment also to the owner
of the tenement and to others . . . will not be praedial servitudes for any other reason than that
the price of the tenement, which perchance is likely to serve only purposes of enjoyment, is
raised because of them. Thus it comes about that what serves for pleasure in respect of human
beings, yet as regards the tenement embraces a benefit, and ought as such to be reckoned
among real servitudes [i.e. praedial servitudes].”
See also Hollmann above n 24 at 644G -I.
200 See the first judgment at [78].
201 See the first judgment at [79].
202 The passage in De Kock above n 90 at 998G cited by the first judgment states:
“This principle referred to as a requirement of utilitas demands that the servitude must offer
some permanent benefit to the dominant tenement and not merely serve the personal pleasure
or caprice of the owner of the land.” (Emphasis added.)
203 Voet above n 25 at 501 at 8 4 15.
CHASKALSON AJ
68
[169] So the utility question must be viewed objectively and without regard to the
personal preferences of Ms Berzack. If the garden servitude increases the utility of
the Berzack property, on the authorities, it matters not that it may have been created
to ensure that Ms Berzack could continue to enjoy and to tend to her existing garden.

[170] It seems to me self -evident that in contemporary urban Cape Town the right to
ensure that an existing garden is not destroyed, but is allowed to extend over an
area of 1 362 m2 into the property of a servient neighbouring property, enhances the
utility of the dominant property. Apart from the aesthetic considerations I have
described above, the right to enjoy a substantially larger garden on a property is self -
evidently a benefit to any owner of that property and cannot be characterised as an
element or as a feature which would be irrelevant beyond the mere caprice of
Ms Berzack. It is common cause that the servitude in the present case enhances
the value of the Berzack property.

[171] The utility of a garden to a property is also supported by the reasoning of the
Court of Appeal in Ellenborough Park :

“No doubt a garden is a pleasure – on high authority, it is the purest of
pleasures – but, in our judgment, it is not a right having no quality
either of utility or benefit as those words should be understood. The
right here in suit is, for reasons already given, one appurtenant to the
surrounding houses as such, and constitutes a beneficial attribute of
residence in a house as ordinarily understood . Its use for the
purposes, not only of exercise and rest but also for such normal
domestic purposes as were suggested in argument – for example, for
taking out small children in perambulators or otherwise – is not fairly to
be described as one of mere recreation or amusement, and is clearly
beneficial to the premises to which it is attached.”204 (Emphasis
added.)

204 Ellenborough Park above n 28 at 179.
CHASKALSON AJ
69
[172] In the circumstances, I conclude that there is no basis to override the clear
language of the servitude and the clear intention of the parties in the present case to
create a praedial servitude . The servitude cannot be characterise d as a personal
servitude by contending that it does not meet the permanence or utility requirements
for praedial servitudes.

[173] The Bains argued, in the alternative, that the registration of the servitude
should be set aside because the servitude was designed to subvert a local land use
ordinance which prescribed a minimum stand size of 4 000 m2. The common cause
facts support this argument. Ms Berzack makes clear that she wanted to subdivide
her original property on the line of the wooden fence, but that would have left the
Bains property substantially below the 4 000 m2 requirement. The servitude was
accordingly designed to circumvent the requirement in the ordinance and to give her
effective control of the servitude area, depriving the owners of the servient tenement
of almost all ownership rights of the servitude area and leaving them de facto (in
fact) able to exercise ownership rights only over an area that was substantially less
than 4 000 m2. She candidly admits that she would not have sold the Bains property
without being sure that she would have “ full authority and rights over the servitude
area” .

[174] Counsel for the Bains argued that, on these facts, the registration of the
praedial servitude was unlawful because it was part of a scheme that had the effect
of violating the ordinance.205 The principle on which they relied was trenchantly
described by Schreiner JA in his famous dissent in Collins ,206 where he would have
struck down the apartheid government’s scheme to disenfranchise “coloured” South
Africans:

“In general the parts of a scheme take their character from the whole.
A scheme to defraud is an obvious example. Another is a scheme to

205 Counsel for the Bains relied on the authority of Colonial Banking and Trust Co. Ltd v Hill’s Trustee 1927
AD 488.
206 Collins v Minister of the Interior 1957 (1) SA 552 (A) .
CHASKALSON AJ
70 get round a legislative obstacle . So in the case of the Colonial Banking
and Trust Company , supra , each part of the scheme taken by itself was
lawful but the combination constituted an unlawful evasion of
section 48(1), and the cheque, which by itself was certainly a cheque
payable on demand, was in the circumstances not a cheque at all, for
the purposes of the sub -section. The same principle should apply
where the obstacle is a constitutional protection against legislation and
the attempted means of avoiding it is legislative. There was of course
no intention in the case of the Senate Act to do anything known to be
illegal, but neither was there any such intention in the Colonial Banking
and Trust Company case. There the parties obviously hoped that it
would turn out to be legal, yet the existence of the scheme was the
decisive factor in the case.”207 (Emphasis added.)

[175] While there is much to commend this line of argument, I am unable to uphold
it in the present case, because the parties have not been able to identify the local
government ordinance which the servitude sought to circumvent. Without access to
the local government ordinance that the subdivision and servitude scheme was
apparently designed to circumvent, it is not possible for this Court to hold that the
registration of the servitude was part of a scheme that unlawfully conflicted with that
ordinance.

[176] It follows that I would dismiss the appeal. This is a dispute between two
private parties, both of whom appeared to accept that costs would follow the result.
Huntrex would accordingly pay the costs of Ms Berzack.

[177] I am mindful of the fact that my disposition of the appeal has the consequence
that a substantial part of the Bains’ property will permanently be controlled by the
owner of their neighbouring property and that they maintain that their current
neighbour, Ms Berzack, exercises her servitudinal rights in a manner that is unfair to
them. I express no views on whether Ms Berzack has behaved unfairly. Even if this

207 Id at 574E -G.
CHASKALSON AJ
71 were the case, however, we cannot find that the servitude is a personal servitude
because the de facto existing state of affairs may be unfair to the Bains.

[178] The Bains may or may not be able to obtain some relief from their alleged
predicament by invoking the principle that servitudes have to be exercised
civiliter modo (respectfully and with due caution) .208 In relation to the Bains’
complaints about municipal rates, objections to municipal valuations of both
properties that fail properly to take account of the effect of the servitude on the
respective values of the two properties may be able to provide them with adequate
redress. These, however, are not issues before us in the present appeal. I
accordingly express no views on them, and differ with the third judgment in so far as
it seeks to provide a solution to the dispute between the Bains and Ms Berzack on
the basis of issues that were not canvassed in the application for leave to appeal that
was brought to this Court. The only issue before us is whether the servitude was
validly registered as a praedial servitude. I would find that it was.

[179] There remains an important issue which I feel obliged to address. In the
course of preparing for the hearing of this case and the writing of this judgment, I
found myself spending a great deal of time reading the translated texts of 17 th and
early 18 th century writers in Holland who were expressing their views on what they
thought were the rules by which the ancient Romans organised social relations on
the land. In this exercise, the 17 th and 18 th century writers in Holland were limited
by the access they had to the surviving classical texts which had been written in a
period well over a thousand years earlier. In turn, I was limited by being confined to
those texts which had been translated into English, rather than being available only
in the original Latin or 17 th and 18 th century Dutch.

[180] This process of legal research was a fascinating intellectual exercise, but it
became increasingly clear to me that it was a wholly in appropriate process to use in
deciding the legal rules that will govern social relations on the land in 21 st century
South Africa .

208 Link Africa above n 40 at paras 142-55.
CHASKALSON AJ
72
[181] There are t hree principled reasons that underl ie my con victions in this regard .
The first is the obvious point that our world and the world s of ancient Rom e and
17th century Holland are completely different . We need to regulat e social relations
on the land with reference to a set of rules that are designed for our world, and not
by trying to squeeze results which we see as just for our world , from a set of rules
which , to the extent that they are ascertainable, were designed for very different
contexts .209 The law starts to look faintly ridiculous when in regulating relations
between neighbours in contemporary suburban Cape Town, it has to seek guidance
from 17 th century Dutch or Latin commentaries on a 6 th century Latin passage
describing the nature of rights to pluck fruits from trees on neighbouring properties in
ancient Rome.

[182] The second reason is that our entire body of common law rules applicable to
servitudes are rules that derive from a legal environment with an absolutist notion of
property . The principle of restrictive interpretation of servitudes is premised on the
notion that absolute rights of ownership should be constrained as little as possible.210
The very distinction between non -transferrable personal servitudes and enduring
praedial servitudes is designed to limit the types of servitudes that can “interfere”
with absolute property rights beyond a single lifetime: personal servitudes terminate
with the death of the person in whose favour they are created; if a servitude is to last
more than a single lifetime, it has to satisfy the requirements of a praedial servitude.
We are now in a post -constitutional era where South African law has rejected an
absolutist notion of property.211 This calls for a fundamental reconsideration of the

209 See, for example, Daniels v Scribante [2017] ZACC 13; 2017 (4) SA 341 (CC); 2017 (8) BCLR 949 (CC)
(Daniels ) at paras 135-8; Link Africa above n 40 at para 106; and Port Elizabeth Municipality v Various
Occupiers [2004] ZACC 7; 2004 (12) BCLR 1268 (CC); 2005 (1) SA 217 (CC) ( PE Municipality ) at para 23.
210 See the discussion of the origins of the principle that servitudes should be interpreted restrictively in Kruger v
Joles Eiendomme above n 27 at paras 8 -11 where the Supreme Court of Appeal cited Voet’s statement that
“[t]hat is especially so because the granting of a servitude receives a strict interpretation as being an odious
thing (because it is opposed to natural freedom)”. The natural freedom to which Voet refers is the freedom of
property owners to do what they will with their property. That is a freedom which exists only under an
absolutist notion of property.
211 This is particularly the case when the traditional set of rules evolved in a legal environment that had an
absolutist notion of property which South African law has rejected in the constitutional era. See, for example,
Daniels above n 209 at paras 135-8 and PE Municipality above n 209 at para 23.
CHASKALSON AJ
73 existing common law of servitudes which was constructed around a central principle
that no longer represents the approach taken by South African law.

[183] Finally, there is a pressing rule of law concern . The existing law of servitudes
requires legal answers to be found in an analysis of the available surviving ancient
texts which may or may not have been translated into English from the original Latin
or Dutch and which frequently contradict one another, and from a body of case law
which lacks consistency precisely because the source and meaning of the underlying
legal principles is so obscure.

[184] Almost any thorough investigation into a rule of the Roman Law and/or the
17th century Law of Holland applicable to servitudes will find authorities that are
fundamentally irreconcilable with each other. By way of illustration, I refer to the
valiant attempts of Kotze JP in Salmon212 to divine the Roman -Dutch Law applicable
to the extinction of servitudes by merger (confusio ) when ownership of both
dominant and servient properties is acquired by the same individual who
subsequently sells one of the properties:

“An important question of law arises in this case, namely, whether,
where a merger of a servitude has occurred, through the owner of the
res serviens becoming by purchase also the owner of the res
dominans , the servitude on a subsequent sale of either or both the
praedia will revive? . . . in Steffens v Bam (12 CTR 1002) the point was
touched upon by counsel and mentioned by BUCHANAN, J., who
spoke of the rule as laid down by Voet. (8, 6, 3) as well established; but
no decision in support of it was mentioned, and several of our most
approved Roman -Dutch authorities, some of whom have been relied
on by Mr Hutton , have expressed a contrary view.
. . .
There are several leges , some of which I shall have occasion to
consider later on, in the Corpus Juris , which relate to instances of

212 Salmon v Lamb’s Executor (1906) 20 EDC 351.
CHASKALSON AJ
74 temporary merger, and will be found mentioned by Cujacius, ad Dig . 8,
4, lex 9; Huber, Praelect vol. 2, lib. 8, tit. 6, sec. 1; Voet, 8, 6, 3; and
Glück, vol. 10, sec. 688, et in notis . Nowhere is the rule of the civil law
so clearly and concisely put as by Glück, who says that servitudes are
lost ‘by merger ( confusio ) when both praedia come to belong to one
owner. Here the rule applies nemini res sua servit . If the merger again
ceases, the question arises whether the former servitude revives?
Simon van Leeuwen ( Cens . For. 2, 14, 7) has no difficulty in answering
this in the affirmative. Wolfg. Ad Schöpff, on the other hand, point
blank denies this, but it is more correct to draw a distinction, as Voet (8,
6, 3) does, whether the merger has arisen through the acquisition of a
purely temporary or of a permanent property ( praedium ).”213

[185] The lack of clarity in the existing South African law of servitudes is illustrated
by the first two judgments in this case . The first judgment and this judgment reach
diametrically opposed conclusions. Yet both judgments are able to marshal detailed
references to the Roman -Dutch authorities on servitudes to support their
conclusions.

[186] There are very few trained lawyers who would be able to explain the common
law of servitudes with any confidence. For lay persons who are bound by the law of
servitudes, the law must seem utterly impenetrable. The rule of law requires law to
be clear and accessible.214 Our current law of servitudes falls a long way short in
this regard. It is a branch of the law which serves to mystify law and to preserve it as
a domain that is intelligible only to a chosen few. For anyone else to understand
their rights and obligations in relation to servitudes, they must be able to access the
wisdom and pronouncements of those chosen few. This is fundamentally offensive
to the rule of law.

213 Id at 359-61.
214 Beadica 231 CC v Trustees, Oregon Trust [2020] ZACC 13; 2020 (5) SA 247 (CC); 2020 (9) BCLR 1098
(CC) at para 81 and Affordable Medicines Trust v Minister of Health [2005] ZACC 3; 2005 (6) BCLR 529 (CC);
2006 (3) SA 247 (CC) at para 108.
CHASKALSON AJ / BILCHITZ AJ
74
[187] There was no request from the parties in this appeal to develop our law of
servitudes in accordance with section 39(2) of the Constitution. In any event, the
problems with our law of servitudes that I have described above are fundamental.
They cannot be cured under section 39(2). They require the thoroughgoing
reconfiguration of the existing law of servitudes, not its incremental development.
The existing common law that was apparently developed to deal with social relations
on the land in Ancient Rome and 17 th century Holland under an absolutist theory of
property ownership must be replaced with a publicly accessible set of rules that are
designed appropriately for 21 st century South Africa and that are at least written in
an official South African language. This is a task that requires speedy attention, but
it is a task for the South African Law Reform Commission (SALRC) and/or
Parliament, not for the courts.

[188] The first judgment suggests that Parliament and the SALRC should not waste
their time investigating and codifying a new law of servitudes because land reform is
a more pressing priority. I would hope that our organs of state could find time for
both tasks.

Conclusion
[189] If I had commanded the majority, I would have granted the application for
leave to appeal, and dismissed the appeal with costs, including the costs of two
counsel.



BILCHITZ AJ:


Introduction
[190] The dispute in this case had its origins in a request by the applicant (Huntrex,
which is wholly owned by Samantha and Rodney Bain) to the respondent
(Ms Berzack) to replace a wooden fence to prevent the dogs they care for from
escaping through it. The fence was erected broadly to demarcate the division
BILCHITZ AJ
76 between that area of the Huntrex property over which Ms Berzack held a servitude
and the rest of the Huntrex property. The refusal of Ms Berzack to agree to this
request led to litigation in which the Bains sought to have the existing fence on the
servitude boundary demolished and replaced with a fence on the boundary between
the two erven with a gate providing Ms Berzack with access to the area over which
she held a servitude. The case itself involved a contestation about the nature of the
servitude – as to whether it was praedial or personal – as well as the interpretation of
the content of the servitude.

[191] I have had the pleasure of reading the judgments of my
Colleagues Dodson AJ and Chaskalson AJ. I am persuaded by Chaskalson AJ’s
reasoning that the servitude in this case was intended to be praedial in nature and is
able to meet the objective legal principles that apply in that regard relating to
perpetuity and utility. I also agree with the reasons he provides why the law of
servitudes is ripe for an engagement by Parliament and that it needs to be
transformed in light of the conditions of modern -day South Africa as well as the
Constitution. Despite my agreement with Chaskalson AJ on these matters, I depart
from both him and my Colleague Dodson AJ in their conclusion that a finding that the
servitude is either praedial or personal is sufficient to resolve this matter. I am
particularly concerned that neither judgment addresses the problem that lay, in my
view, at the heart of this dispute, namely, whether it was permissible for Ms Berzack
to exercise the servitude in an absolutist manner without regard to the interests of the
Bains and the companion animals (or indeed other vulnerable parties such as
children) they care for . Without addressing that issue, after years of working its way
through the court system, the dispute will not be resolved and could result in further
litigation.

[192] The consequences of the first judgment’s finding that the servitude is personal
are that it will end upon Ms Berzack’s passing or, as stipulated by the first judgment,
upon the sale of her erf (whichever is the earlier) . If, as the second judgment holds,
the servitude is praedial in nature, it can continue to burden the servient property in
perpetuity , effectively preventing the Huntrex owners (or their successors -in-title)
from enjoying a large portion of their property . To avoid the unfairness in volved in
allowing a burdensome servitude to continue indefinitely, it is tempting to find that the
BILCHITZ AJ
77 servitude is personal in nature. Yet, in my view, that is to go against the express
intention of the parties as captured in the servitude , to adopt an unduly restrictive
approach to the objective characteristics of a praedial servitude and to cause serious
disruption to the existing registration of servitudes. Indeed, evidence was presented
in the record – from the affidavits of Mr Moffat and Ms Boag – of many praedial
servitudes having been registered that are similar in nature to that of Ms Berzack.
The first judgment is likely, as a result, to cause serious disruption to existing
servitudes – if there is to be a significant reform of the existing law of servitudes, that
would be better accomplished by a parliamentary intervention as indicated by my
Colleague Chaskalson AJ which can also create transitional provisions to address
existing servitudes.

[193] The first question I consider is the content of the entitlements that are granted
by this servitude. I depart from my Colleague Dodson AJ in that I consider certain
clauses of the servitude itself to be ambiguous which thus requires the application of
the principle that a servitude must be interpreted in the least restrictive manner. In
my view, this principle, in the context of the current servitude, entails that it does not
confer on the servitude holder (currently Ms Berzack ) an exclusive right of access
and control over the servitude area. Such a recognition, however, would still not
solve the problem that prompted this litigation – which related to the permeability of
the fence on the Bains’ property that enabled the dogs they cared for to escape into
the servitude area and onto Ms Berzack’s property.

[194] To address this aspect, it is important to have regard to the exercise of the
servitude itself. The central common law principle here is the duty on a servitude
holder to exercise a servitude civiliter – that is, in a manner that does not impose an
unreasonable burden on the servient owner215 (in Latin – civiliter modo – often
translated literally as “in a civil manner”). This Court should, on the usual casuistic
basis, develop the common law in specific instances whether or not there is a major
overhaul by Parliament. In my view, the Constitution requires this Court to do so.

215 See Scott “A Growing Trend in Source Application by Our Courts Illustrated by a Recent Judgment on Right
of Way” (2013) 76 Tydskrif vir Hedendaagse Romeins -Hollandse Reg 239 at 242-3 for an understanding of the
phrase “ civiliter modo ” in this way.
BILCHITZ AJ
78 The civiliter modo principle should be suitably developed in light of our Constitution
to require the servitude holder to consider the interests not only of the servient owner
but of all affected by the exercise of their entitlements including unlawful occupiers,
vulnerable children or animals. That, in turn, provides a constitutionally informed
approach both to temper any unfairness inherent in a praedial or personal servitude
as well as to resolve the dispute in this case.

Characterisation of the legal issues
[195] One of the differences between this judgment and the other two judgments is
in the characterisation of the legal issues in the dispute in this Court. The other two
judgments focus mainly on whether Ms Berzack’s servitude is praedial or personal in
nature. This judgment considers that the dispute concerned not only that question
but also the interpretation and exercise of the servitude itself.

[196] My view is supported by the original pleaded case in the High Court. The
case concerned not simply whether the servitude was praedial or personal but also
whether the owners of the servient property , the Bains, were permitted in terms of
the existing servitude to demolish the existing fence and erect another one on the
boundary between Ms Berzack’s property and their own. Ms Berzack also lodged a
counter -application to confirm her interpretation of the servitude as granting her
exclusive access to the servitude area. The Huntrex owners were successful in the
High Court and the servitude was interpreted to allow them the relief they had
requested.

[197] The appeal to the Supreme Court of Appeal concerned both the question of
whether the servitude was praedial or personal as well as the interpretation of the
servitude. Whilst diverging on the first issue, both the majority and minority
judgments rejected the relief relating to the fencing, effectively interpreting the
servitude in favour of Ms Berzack. The notice of application for leave to appeal to
this Court clearly is against the entire judgment and orders of the majority of the
Supreme Court of Appeal – that includes its finding on the interpretation of the
servitude. There is also a more general request for further and/or alternative relief.

BILCHITZ AJ
79 [198] The question of the interpretation of the servitude thus remained a n issue in
this Court. It was raised in the oral hearing but also, importantly, was at the heart of
this case since its commencement in the High Court.216 Indeed, the first judgment,
prior to ascertaining whether the servitude is praedial or personal, provides an
interpretation of the content of the servitude.217 This is unavoidable as it is
necessary in order to determine whether the servitude was personal or praedial.
Thus, in my view, the interpretation of the servitude cannot be divorced from a
consideration of whether it is praedial or personal. Therefore, t he matter could not
be res judicata (the matter is already decided) as it is integrally connected to the
question that the first and second judgments regard as central.

Interpreting a servitude restrictively
[199] My Colleague Dodson AJ recognises that there are several interpretive
presumptions that generally apply in favour of not burdening a property with
servitudes or limiting their extent. This approach was given expression to in the
Willoughby’s case 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.”218

[200] As my Colleague correctly writes, this approach leads to three presumptions.
The relevant presumption here is that referred to by the Supreme Court of Appeal in
Joles Eiendom me219 as the “well-established rule of construction that because a
servitude is a limitation on ownership, it must be accorded an interpretation which

216 See Link Africa above n 40 at para 119.
217 See above at [59]-[64].
218 Willoughby’s above n 63 at 16.
219 Kruger v Joles Eiendomme above n 27.
BILCHITZ AJ
80 least encumbers the servient tenement ”.220 The presumption applies where the
terms of the servitude are not clear and unambiguous. I agree with Van der Walt
that the presumption should also apply in circumstances of constructing a servitude
that imposes a significant burden on the servient property where the terms thereof
are wide and general rather than precise and specific:221 in such circumstances too,
a servitude should be interpreted in such a way so as to create the least onerous
burden on the servient property.

[201] In my view, this is a case of a servitude that does not unambiguously create a
right of exclusive access for the servitude holder to the servitude area. It is also a
servitude that, if interpreted to grant exclusive access, would almost completely
deprive the servient property owners of their enjoyment of that part of their property.
The presumption thus operates in favour of a restrictive reading of the servitude.

[202] The relevant part of the current servitude reads as follows:

“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.

220 Id at para 8. See Van der Walt above n 17 at 193.
221 See the discussion in Van der Walt id at 196-203 and, summarising his position at 203:
“Whenever very extensive servitude grants or heavy servitude burdens are created, reliance on
the contract should only oust consideration of the presumption if the wording of the servitude
grant is not only clear and unambiguous but also precise and specific in identifying and
describing exactly the burden to be placed on the servient land. However, when the wording
is general, wide and permissive (and unless the ‘real’, narrower and more precise intention of
the parties can be ascertained in terms of the golden rule) it should not be seen as a clear and
unambiguous servitude grant and the presumption should apply to reduce the servitude burden
to the minimum.”
BILCHITZ AJ
81 (The term of Seller shall include her successors -in-title).”

[203] A plain reading of the wording of the servitude is that it grants the servitude
holder a right of continuing access to the servitude area and a right to plant, control,
care for and renew the garden in that area. There is no reason why the enjoyment of
these rights necessarily requires excluding the owners of the servient property from
the servitude area. In fact, guaranteeing a right of access to the servitude holder
specifically suggests that the owners of the servient property may seek to prevent
such access due to their desire to enjoy that part of their property. Moreover, the
right to garden on a property in no way excludes the owners of the servient property
from enjoying that garden. The word “control” is not related to access but to the
“existing garden” – which indicates that the servitude holder has the right to
determine, for instance, what is planted in the garden and its aesthetic properties.

[204] The first part of the servitude prohibits erecting a wall or fence on the
servitude boundary except in relation to the extension of the existing type of fencing.
This provision is consistent with the removal of any fencing between the servitude
area and the rest of the servient property – there is indeed no prohibition on
removing existing fencing. Whilst there is an existing fence between the servitude
area and the rest of the servient property, that appears to be for purposes of
demarcating the servitude area rather than preventing the owners of that property
from accessing the area – otherwise, logically, there would be a prohibition on
removing that fence. The type of fencing (wooden pole fencing) is specified in a
consistent manner with the rest of the servitude – namely, to preserve an aesthetic
sensibility (consistent with the essence of the servitude which surrounds gardening).
It is conceivable that much stronger and permanent fencing could have been utilised
if the goal was to keep the owners of the servient property out of the area.

[205] Whilst evidence was presented that in the past the servitude was exercised by
Ms Berzack in a manner that involved her having exclusive access to that area, such
an entitlement in no way emerges clearly from the terms of the servitude itself. It is
precisely because the servitude is unclear on this point that Ms Berzack
counter -applied in the High Court to have a ruling specifying that the servitude
conferred on her – as the servitude holder – exclusive rights over the servitude area.
BILCHITZ AJ
82
[206] Yet, the law clearly provides that the opposite approach must be adopted:
where there is ambiguity, servitudes must be interpreted restrictively so as to burden
the servient property no more than is necessary. The interpretation of this servitude
not to confer on the servitude holder a right of exclusive access to the servitude area
would enable the servient property owner to gain access to that area and to enjoy
that part of their property too. That interpretation preserves the essence of the
servitude but also does not result in the obliteration of all rights the servient property
owners (currently the Bains) have over that portion of their property. The alternative
would be to exclude them entirely from enjoying part of their property which they
own. That consequence would arise irrespective of whether the servitude is
personal or praedial.

[207] My approach is similar to that adopted by Griesel J in Roeloffze .222 That case
related to a right of way and the respective rights of the servitude holder as well as
the owner of the servient property. Griesel J laid out some of the applicable
principles in the following quote:

“In the present case the phrase in question must be interpreted in the
light of the servitude as a whole, seen against the background of well-
established common -law principles. Applying those principles, the
rights of the owner of the servient property must not be unduly
burdened by the servitude. A strict interpretation of a servitude is
therefore called for. Moreover, on my understanding of the law, the
creation of a servitude does not preclude the owner of the servient
tenement from using the land which is the subject matter of the
servitude; he or she ordinarily retains all the rights flowing from his or
her ownership of such property, provided that the exercise of such
rights may not interfere with the rights of the servitude holder .”223


222 Roeloffze N.O. v Bothma N.O. 2007 (2) SA 257 (C).
223 Id at para 33.
BILCHITZ AJ
83 [208] As I have mentioned, it is unclear to me why in order to exercise the central
elements of her servitude, Ms Berzack must exclude the Bains from retaining any
rights associated with the ownership of their property. It is important, when
interpreting servitudes, to do so in a restrictive manner such that, where possible and
consistent with the terms of the servitude, a court does not extend the servitude
holder’s entitlements in such a way so as to deprive the servient property owners of
all the entitlements flowing from the ownership of their property.

[209] The interpretation I have adopted, however, does not address the problem
that brought about this litigation – whether the fencing can be modified to enable the
Huntrex owners to prevent the dogs they care for from escaping into the area over
which Ms Berzack holds a servitude and, without any barrier, onto her own property
too. The existing servitude provides that no wall or fence may be erected on the
servitude boundary “except extension of existing type of fencing (wooden pole
fencing)”. This provision clearly provides that the existing fence on the servitude
boundary may only be modified through “extension” – that could include the
augmenting of additional fencing or the modification thereof in other ways. The
existing type of fencing could involve wooden pole fencing but also could include
fencing of a similar nature that would have a similar aesthetic effect. The latter
understanding seems to be more consonant with the purpose of the servitude which
is to enable the servitude holder to create a beautiful extension of their garden onto
the adjoining property.

[210] Given these various possibilities, exactly which modifications would be
permissible can properly be understood to lie within the discretion of the servitude
holder – in this case, Ms Berzack. When the dispute first arose, the Bains asked
Ms Berzack for permission to make additional modifications to the fencing to protect
the dogs they care for. Ms Berzack refused to permit any modification to the existing
fencing – that refusal was an exercise of the powers conferred upon her by the
servitude. Yet, in the exercise of her powers in terms of the servitude, she was not
permitted to adopt an absolutist and intransigent approach to the interests of the
servient property owner or those on their property. Indeed, the exercise of
Ms Berzack’s rights, implicates the common law principle that a servitude must be
exercised in a reasonable manner, a matter which I now elaborate on.
BILCHITZ AJ
84
The duty to exercise a servitude reasonably
[211] The common law of servitudes recognised that the exercise of a servitude by a
servitude holder without regard to the interests of the owner of the servient property
could result in excesses that unreasonably interfered with the enjoyment of the
servient owner’s property.224 It therefore developed the principle that the servitude
holder must exercise their servitude entitlements reasonably – and in a way that has
regard to the interests of the servient owner ( civiliter modo ).225 In
Anglo Operations ,226 the Supreme Court of Appeal formulated the principle as
follows:

“The holder of the servitude is in turn bound to exercise his rights
civiliter modo , that is, reasonably viewed, with as much possible
consideration and with the least possible inconvenience to the servient
property and its owner .”227

[212] Van der Walt captures the purpose of the principle as follows:

“The principle protects the owner of the servient property against
unnecessary and unwarranted burdens, which in this context means
burdens that are neither required for the proper exercise of the
servitude nor clearly specified or included by implication in the
servitude grant.”228

[213] The principle includes a key element of balancing the interests of the
servitude holder and the servient property owner. That balancing, in our

224 This flows from the fact that a servitude is a limited real right and does not deprive the servient owner of all
uses of their property provided they are consistent with the servitude holder’s exercise of their entitlements . See
Sonnekus “ Erfdiensbaarhede en die uitoefening daarvan civiliter modo ” (2007) 70 Tydskrif vir Hedendaagse
Romeins -Hollandse Reg 351 at 353.
225 Van der Walt above n 17 at 247 and Silberberg and Schoeman above n 23 at 381-2.
226 Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd [2006] ZASCA 118; 2007 (2) SA 363 (SCA).
227 Id at para 21. See also in an analogous context, Trojan Exploration Company v Rustenburg Platinum Mines
[1996] ZASCA 74; 1996 (4) SA 499 (SCA); [1996] 4 All SA 121 (A) at para 67.
228 Van der Walt above n 17 at 247.
BILCHITZ AJ
85 constitutional era, includes facets of a proportionality test: the servitude holder must
be able to exercise their servitude effectively but do so in a way that is not overly
burdensome on the servient property.229 A right of way, for instance, must follow a
route that causes the least inconvenience to the servient owner. These principles
embody an acknowledgment that a servitude itself is essentially relational in nature –
it involves recognition of a limited real right that can be exercised over property that
someone else owns.230 That requires exercising such servitude entitlements with
due concern for the entitlements of others.

[214] The civiliter modo principle is consistent with and warrants development in our
constitutional era. It was referred to by Yacoob J in Motswagae231 which concerned
the right of a municipality in terms of a servitude to conduct public works on a
property in relation to the provision of public services. Given the significant intrusion
that bulldozing caused near the property, the Court emphasised the common law
principle that a servitude be exercised civiliter modo which it translated to mean
“respectfully and with due caution”.232

[215] In Link Africa ,233 Cameron J and Froneman J were also concerned with a
public servitude. They too recognised the principle that a servitude must be
exercised respectfully and with due caution.234 In their judgment, they reject what
they term an “o utdated, over -rigid and absolute notion of ownership. That
conception is alien to the holding of property under the common law, the Constitution
and other applicable law ”.235 Instead they state: “t his Court has recognised that
property as an individual right is not absolute. It is subject to societal imperatives ”.236


229 This is often referred to as the “necessity component” of the proportionality enquiry.
230 See the first judgment at n 44.
231 Motswagae v Rustenburg Local Municipality [2013] ZACC 1; 2013 (2) SA 613 (CC); 2013 (3) BCLR 271
(CC).
232 Id at para 14.
233 Link Africa above n 40.
234 Id at paras 142-3.
235 Id at para 106.
236 Id at para 109.
BILCHITZ AJ
86 [216] The approach of the Court in these cases recognises that property rights –
and servitudes in particular – are essentially relational in nature. Since the law plays
an essential role in the recognition of property rights, it must do so in such a way that
achieves a balance between the various interests involved. In his concurring
judgment in Daniels ,237 Froneman J recognises “[t] he social boundedness of
property in our current law has also been recognised and emphasised in many other
areas of our law ”.238

[217] The idea of property rights being exercised in isolation from society, other
individuals and the wider environment is also at odds with the transformative shift the
Constitution has brought about that requires a consideration of African239 and
feminist240 approaches to property. For instance, Okoth -Ogendo writes, that the key
shift required by an African approach to property is to consider “how individuals on
their own, or in community with others, relate not simply to the physical solum, but to
each other in respect of that solum and its associated resources”.241

[218] Such approaches are relational in nature and appreciate our interdependence
with other humans, animals and the environment. Recognising the need for a shift in
the relationship between humans and the environment induced by the climate crisis,
Nedelsky writes:


237 Daniels above n 209
238 Id at para 136.
239 See, for instance, Biko “Some African Cultural Concepts” in Stubbs (ed) I Write What I Like: Steve Biko. A
Selection of His Writings (Heinemann, London 1987) at 43; Mnisi Weeks et al “Tensions between Vernacular
Values that Prioritise Basic Needs and State Versions of Customary Law that Contradicts Them: ‘We Love
These Fields That Feed Us, but Not at the Expense of a Person’” (2011) 3 Stellenbosch Law Review 823
at 823-33; Du Plessis “African Indigenous Land Rights in a Private Ownership Paradigm” (2011) 14 PER/PELJ
45 at 48-57; and Shandu and Clark “Rethinking Property: Towards a Values -Based Approach to Property
Relations in South Africa” (2021) Constitutional Court Review 39 at 56 -7.
240 See, for instance, Davies “Persons, Property and Community” (2012) 2 Feminists@law 1 at 13-18;
Van Wagner “Putting Property in its Place: Relational Theory, Environmental Rights and Land Use Planning”
(2013) 43 Revue Générale de Droit 275 at 283-6; and Nedelsky “A relational approach to property” in Graham
et al The Routledge Handbook of Property, Law and Society (Routledge, New York 2023).
241 Okoth -Ogendo “The Nature of Land Rights under Indigenous Law in Africa” in Claassens and Cousins (eds)
Land, Power and Custom: Controversies Generated by South Africa’s Communal Land Rights Act (UCT Press,
Cape Town 2008) at 100 (emphasis added).
BILCHITZ AJ
87 “To embrace a conception of a genuinely shared Earth, humans would
see themselves as embedded in an interdependent community of life
forms as well as water, air, soil, rocks, and minerals (Davies, Godden
and Graham 2021). The goal of a property regime would then be to
organise relationships of care and respect between humans and all
other members of the Earth community.”242

[219] A shift brought about by our Constitution in the approach to property thus
requires a rejection of absolutist property rights which are exercised without due
concern for those affected by the exercise of such rights. Arguably, the common
law – through principles such as the duty to exercise a servitude civiliter modo –
already recognises the relational dimension of property. In developing the common
law, it is necessary to expand upon that underlying foundation.

Developing the common law
[220] Section 173 of the Constitution provides that “[t] he Constitutional Court, the
Supreme Court of Appeal and the High Court of South Africa each has the inherent
power to protect and regulate their own process, and to develop the common law,
taking into account the interests of justice ”.

[221] Whilst that section is permissive and recognises the power of the superior
courts to develop the common law, section 39(2) provides in more mandatory terms
that “[w] hen interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote the spirit, purport and
objects of the Bill of Rights ”.

[222] In Carmichele ,243 this Court held that “t here can be no question that the
obligation to develop the common law with due regard to the spirit, purport and
objects of the Bill of Rights is an obligation which falls on all of our courts including
this Court ”. It further held “ that this duty upon Judges arises in respect both of the

242 Nedelsky above n 240 at 329.
243 Carmichele v Minister of Safety and Security [2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (10) BCLR 995
(CC) at para 34.
BILCHITZ AJ
88 civil and criminal law, whether or not the parties in any particular case request the
Court to develop the common law under section 39(2) ”.244

[223] These are duties on the Court irrespective of whether the case has been
framed as requiring a development in terms of section 39(2) – indeed, to do that
would tether common law development to whether it is advantageous for parties to
argue for such a development.245 The Court must also apply the law holistically and
not allow parties to deflect from the true nature of a dispute. It must also consider
whether the interests of those who are vulnerable – and who lack a voice – have
adequately been addressed. As I have already discussed, the issue surrounding the
nature of the fencing was clearly at issue since the commencement of this litigation
in the High Court.246 Moreover, at the hearing in this Court, the question of the
approach adopted by Ms Berzack to the servitude in light of the civiliter modo
principle was raised in oral questions, providing the parties with an opportunity to
engage this issue.247

[224] The common law approach to exercising a servitude civiliter modo applies
with respect to the interests of the servient property owner – in this case, there would
be a duty on Ms Berzack to consider the interests of the Bains and both their right
and duty to ensure the safety of the companion animals they care for. This Court
has recognised in Dawood248 that the right to dignity protects the right of individuals
to enter into meaningful personal relationships and thus “ to achieve personal
fulfilment in an aspect of life that is of central significance ”.249 For many human
individuals, their relationships with other sentient creatures and the caring,

244 Id at para 36.
245 See Linvestment CC v Hammersely [2008] ZASCA 1; 2008 (3) SA 283 (SCA) at para 25 where the
Supreme Court of Appeal developed the existing law of servitudes on the basis of its inherent power to develop
the common law.
246 See, in this regard, a similar approach adopted in Link Africa above n 40 at para 119.
247 See Tuta v The State [2022] ZACC 19; 2023 (2) BCLR 179 (CC); 2024 (1) SACR 242 (CC) at para 52 where
a similar approach was adopted and raising a matter in oral argument was found to be sufficient to enable this
Court to pronounce on that matter.
248 Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs
[2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC).
249 Id at para 37.
BILCHITZ AJ
89 compassionate bonds that such relationships can entail are amongst the most
centrally important dimensions of their lives. The Bains thus have a constitutionally
protected interest in choosing to form and sustain relationships with companion
animals and to ensure that they are not harmed and that they are adequately
provided for.

[225] The Bains also have statutory responsibilities in terms of the Animals
Protection Act250 to avoid unreasonably committing any act or omitting to do any act
that could result in an animal being subject to unnecessary suffering.251 Failing to
act reasonably to prevent the companion animals they care for from escaping their
property and being subject to the dangers of an adjoining property (where there is a
swimming pool, for instance) could contravene this statutory duty, and result in a
criminal conviction.

[226] However, given the relational nature of property, the exercise of entitlements
in relation to a servitude can affect the interests of parties other than the servient
property owner. The question thus arises as to whether a servitude holder must
also, in exercising their servitude reasonably, consider the interests of those who can
be affected but who are not the servient owner. Consider, for instance, if the
Huntrex property owners had young children who could easily crawl through the
fence and fall into the swimming pool – would Ms Berzack have a duty to consider
the danger to the children in her decision concerning whether to permit the
modification of the existing fencing? It could also be that there are unlawful
occupiers on a property who temporarily have a right to remain on the servient
property pending the provision of alternative accommodation – must a servitude
holder consider their interests and those of their children (even if they diverge from
that of the servient tenement’s owner)?

[227] In this case, we are presented with a novel scenario. The Bains initially
became aware of the praedial nature of the servitude and challenged it pursuant to a

250 71 of 1962.
251 Id at section 2(1)(r).
BILCHITZ AJ
90 concern that the current fence was inadequate to prevent the escape of the dogs
they care for. In the event the dogs did escape, the Bains were concerned that the
fence inhibited their ability to retrieve those animals. I have thus far addressed the
interests of the Bains in relation to the companion animals they care for. However, in
our constitutional era, the dogs themselves have important interests that must be
considered. In Openshaw ,252 Cameron J wrote the following about animal protection
laws: “ The statutes recognise that animals are sentient beings that are capable of
suffering and of experiencing pain .”253

[228] In Lemt hongthai,254 the Supreme Court of Appeal further held that
“[c]onstitutional values dictate a more caring attitude towards fellow humans, animals
and the environment in general”.255 This Court in NSPCA256 built on these dicta to
find that, in the constitutional era, “ the rationale behind protecting animal welfare has
shifted from merely safeguarding the moral status of humans to placing intrinsic
value on animals as individuals ”.257

[229] If dogs are beings with intrinsic value, their interests must be considered too
in any balancing process relating to how a servitude holder may exercise their
servitude. Dogs are not simply inanimate objects: if the fence is left as it is, the dogs
cared for by the Bains can escape onto Ms Berzack’s property. Outside of their own
property, the Bains are not able to control the dangers those animals are exposed to
– such as in relation to the swimming pool – that can result in injury or the loss of life.
It may also be possible for the animals to escape onto other properties and public
spaces which, in urban settings, may result in injury or death. The inability to
recover the animals easily in the servitude area may also prevent the Bains from
realising their obligations to ensure the animals they care for can access adequate

252 National Council of Societies for the Prevention of Cruelty to Animals v Openshaw [2008] ZASCA 78; 2008
(5) SA 339 (SCA).
253 Id at para 38.
254 S v Lemthongthai [2014] ZASCA 131; 2015 (1) SACR 353 (SCA).
255 Id at para 20.
256 National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional
Development [2016] ZACC 46; 2017 (1) SACR 284 (CC); 2017 (4) BCLR 517 (CC).
257 Id at para 57.
BILCHITZ AJ
91 food and water. There are thus multiple reasons why it is in the interests of both the
Bains and the dogs they care for to ensure that there is a barrier through which those
dogs cannot escape.

Applying these principles
[230] In this case, when approached, Ms Berzack simply refused to modify in any
way the wooden fence that was erected between the servitude area and the rest of
the Bains’ property. A central question this case poses is whether that refusal was
an exercise of the servitude civiliter modo . In my view, it was not.

[231] Through consenting to a modification of the fence, Ms Berzack would not
have been disturbed in her enjoyment of her garden. There are multiple variations of
what could have been done: this could have included modifying the existing fence to
become sturdier and less permeable to a replacement of the wooden fence with
material of a similar nature that would have been more effective in keeping the dogs
in the Bains’ property. It would not be reasonable to require the Bains to erect
additional fencing on their own property given that the servitude already significantly
burdens and divides their property. Any modification of existing fencing would be
entirely consistent with what the servitude sought to accomplish. It would lead to
virtually no reduction in the enjoyment by Ms Berzack of her entitlements whilst
enabling the Bains to enjoy their property to the maximum and take account of the
interests of the dogs they care for. A blanket refusal to consider any such changes
was thus unreasonable and inconsistent with an ethos requiring the exercise of
property rights in a socially responsible manner.

[232] Consequently, in my view, the recognition that Ms Berzack has a praedial
servitude must go hand in hand with a restrictive interpretation of the servitude as
well as a recognition of her duty to exercise the servitude reasonably and with due
regard to the interests of the Bains and the dogs they care for. Consent to the
modification of the fence would have avoided this litigation and would have
conformed both to the wording of the servitude and Ms Berzack’s common law
obligations – now developed in the constitutional era – to exercise the servitude
civiliter modo with due regard to all the interests involved.

BILCHITZ AJ
92 [233] In relation to the order that can be issued by this Court, I wish to address the
suggestion by the first judgment that the question of the modification of fencing is
res judicata . I have already expressed my view that the interpretation of the
servitude was before this Court, both in terms of the pleadings – such an order would
clearly fall within the terms of the notice of application for leave to appeal – and in
relation to the fact that there is an integral connection between the interpretation
thereof and a finding concerning whether the servitude is praedial or personal.
Given that essential connection, it is also entirely permissible for this Court to grant
relief that relates to the interpretation of the servitude. The first judgment also
cannot, consistently, hold this view: even though there is no express provision that
the servitude would terminate on the alienation by Ms Berzack of her property, the
first judgment justifies effectively rectifying the servitude so as not only to terminate
upon her passing, but also upon the alienation of the property.258 An order is made
to that effect.259 This demonstrates that an order concerning the interpretation of the
servitude is entirely appropriate. I have already provided a justification for providing
an order relating to the exercise of the servitude civiliter modo .260

[234] The question of relief in this case raises a wider matter of this Court’s powers
when exercising its general jurisdiction. In constitutional matters, it is clear that the
Constitution provides in section 172(1)(b) that a court “may make any order that is
just and equitable”. In relation to its general jurisdiction, courts are governed by
section 173 which confers “the inherent power to protect and regulate their own
process, and to develop the common law, taking into account the interests of
justice”. This provision must be understood to confer a similar power on this Court to
provide just and equitable relief where its general jurisdiction is engaged. Its
common law powers in this regard must clearly be exercised “in the interests of
justice”. This is particularly important when the interests of a vulnerable party – such
as a child or non -human animal – are at stake. It seems to me that a court should
not be shoehorned by the parties to address a narrow question with the result that its
finding leads to relief that entrenches an unjust or inequitable state of affairs which

258 See above at [142].
259 See para 3(2)(c) of the order.
260 See above at [220]-[223].
BILCHITZ AJ
93 can imperil the interests of vulnerable individuals. That is inconsistent with a court’s
central duty to do substantive justice between the parties. In relation to this case,
even if the focus of argument was on whether the servitude was praedial or
personal, that fact does not preclude this Court from ensuring that a finding either
way does not result in unjust and inequitable consequences or addressing the
interests of vulnerable individuals affected by its order.

[235] Had I commanded the majority, I would have concluded that the servitude is a
praedial one but ordered, in addition, the following:
1. Clauses P(b)(ii) and (iii) of the servitude are to be interpreted such that
the servitude holder has all the rights contained therein but does not
have exclusive rights of access to the servitude area.
2. Clause P(b)(i) is to be interpreted to enable the servient property
owners to have access to the servitude area up to the boundary of their
property. Any use the servient property owners make of that area must
not interfere with the full enjoyment by the servitude holder of their
rights under the servitude.
3. The servitude holder must exercise the servitude civiliter modo which,
in this instance, requires the granting of permission to modify the
existing fence to create a barrier that does not allow the companion
animals cared for by the Bains to escape into the servitude area . The
modification must also be consistent with allowing the Bains to gain
access to the servitude area.
4. Seeing that both parties have been partially successful, each party
would have been responsible for their own costs in this Court.

For the Applicant :




For the First Respondent :
S P Rosenberg SC and T R Tyler
instructed by Lamprecht and
Associates Incorporated .

J G Dickerson SC and S G Fuller
instructed by Dorrington Jessop
Incorporated .