[2025] ZACC 6 · case CCT69/23
Servitude — whether praedial or personal — approach to interpretation of servitude — whether servitude compliant 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
The court's own headnote.
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court. On Wednesday, 30 April 2025, the Constitutional Court handed down judgment in an application for leave to appeal against the judgment of the Supreme Court of Appeal handed down on 21 February 2023. The application concerned a dispute over whether access to and maintenance of a garden on neighbouring property constituted a praedial servitude, thereby binding the servient property in perpetuity, or a personal servitude of usus, existing for no more than the life of a servitude holder. The matter produced three judgments.
The first judgment (majority) is penned by Dodson AJ (Madlanga ADCJ, Majiedt J, Mathopo J, Mhlantla J and Tshiqi J concurring). The second judgment is penned by Chaskalson AJ (Zondo CJ concurring). The third judgment is penned by Bilchitz AJ. The applicant is Huntrex 277 (Pty) Ltd (Huntrex) which owned a property in Constantia that is the servient property in terms of a servitude held by Huntrex’s neighbour, Ms Margot Berzack, the first respondent and owner of the neighbouring property.
Ms Samantha Bain and her husband in effect owned the Huntrex property through the company and used and occupied it as their home. The second respondent is the Registrar of Deeds: Cape Town, and the third respondent is the City of Cape Town Municipality. The second and third respondents did not participate in this case, and the third respondent filed a notice to abide. Ms Berzack was the initial owner of a property in Constantia, having acquired it in 1970.
She did not use the entire property. The end of her garden was demarcated by a wooden fence. When Ms Berzack sought to subdivide and sell the unused portion of her property beyond the wooden fence in 1982, she found that a local ordinance imposed a minimum erf size. The area of the unused portion of her property which she sought to subdivide was below the minimum erf size.
To get around this problem, Ms Berzack subdivided an erf that complied with the ordinance, but purported to register a servitude over the subdivided portion that would allow her as well as her successors in title to “plant, control, care for and renew” the existing garden on the subdivided portion. The terms of the servitude were agreed to with a Mr Wellens in 1983 when he purchased the subdivided portion and registered against the deed of transfer. The servitude was retained when the property was transferred to successive owners, including the Bains when they acquired it in 2017. When the Bains sought to replace the wooden fence demarcating the garden in order to prevent their dog from escaping through it, Ms Berzack refused.
Huntrex approached the Western Cape Division of the High Court, Cape Town for relief that would allow them to demolish the existing wooden pole fence at the end of the garden and to erect a new wooden pole fence along the common boundary between the subdivided erven, giving Ms Berzack access to the servitude area by way of a gate in the envisaged boundary fence. Huntrex also contended that the servitude was a personal servitude of use and had incorrectly been registered by the Registrar of Deeds as a praedial servitude. Ms Berzack then filed a counter-application seeking a declaration that the servitude conferred on her and those owning the property after her, the right to exclusive access to and use and maintenance of the garden, to retain and extend the existing wooden fence and that the owners of the Huntrex property were prohibited from erecting any fence within the servitude area. In the alternative, she sought the rectification of the servitude to align with the declaratory relief sought.
Ms Berzack justified her acquisition of any rights not in the servitude title deed by exercising them openly for over 30 years and acquiring them by prescription. The High Court found that the servitude did no more than enable Ms Berzack to engage in a personal pleasure or caprice in the form of gardening. In dealing with the requirement for a praedial servitude that it provide utility, the Court found that the activity in the servitude area did not increase the economic, industrial or professional potential of the dominant property, the Berzack Property. Hence it did not provide utility.
Consequently, the High Court found that the servitude should not have been registered as it violated section 66 of the Deeds Registries Act (DRA), which prohibited the registration of personal servitudes extending beyond the lifetime of the beneficiary. The Court granted the legal relief sought by the Bains, including the rectification of the servitude to reflect as a personal servitude of usus. Aggrieved, Ms Berzack appealed to the Supreme Court of Appeal. In a split (3-2) decision, the Court upheld Ms Berzack’s appeal and the decision of the High Court was set aside.
The majority found that the servitude was praedial in nature. In doing so, it accepted that a garden servitude could be praedial in nature if it met the characteristics of a praedial servitude. This reasoning was based on the finding that the requirements of utility and perpetuity were present, noting that the servitude area served the property of Ms Berzack continuously for 30 years and the corresponding right to garden reserved on the servitude area inured in favour of Ms Berzack’s property, thus, serving the pursuit of Ms Berzack’s personal pleasure or caprice. In response to the minority judgment, the majority supported their finding of the presence of utility by noting that the effect of the servitude was to entitle the dominant property to a view of the grounds and that view, said the majority, contributed to the utility of the servitude, thus enhancing the value of Ms Berzack’s property.
The minority disagreed. It commenced by observing that the conclusion of the majority that a garden servitude like the one in question constituted a praedial servitude on the basis inter alia of a right to a view (as satisfying the requirement of utility) marked a significant development of the scope of presently recognised praedial servitudes at common law. They maintained that this development was premised on the misapplication of the legal principles which governed servitudes. The minority found that the servitude was a personal servitude and largely endorsed the reasoning of the High Court.
It said that the interpretation of the title deed recording the servitude was not on its own dispositive of the matter as there were limits in property law that restricted the unbounded creation of praedial servitudes and that the contracting parties were not free to create the real rights at will. Clause P(b)(ii) granted the right to “plant, control, care for and renew” the garden within the servitude area, while Clause P(b)(iii) guaranteed access to the servitude area for gardening purposes. While acknowledging indications suggesting a praedial servitude, such as the reference to successors in title, the minority maintained that other factors pointed towards a personal servitude. Notably, the servitude was “imposed” by Ms Berzack in favour of herself, and the rights granted were personal in nature, primarily serving her enjoyment of gardening.
Additionally, they invoked the common law presumption that generally land was servitude-free. In the event of doubt, an interpretation favouring a personal servitude as opposed to a praedial servitude was to be preferred since the former imposed a lesser burden on the servient land. On the examination of both the provisions of clause P and the nature of the servitude in question, the minority concluded that the servitude was personal in nature. The minority would have dismissed the appeal with costs.
Before this Court, Huntrex sought leave to appeal the judgment and order of the Supreme Court of Appeal. Huntrex submitted that this Court had jurisdiction in that the matter raised an arguable point of law of general public importance. The arguable point of law related to whether a garden servitude may be praedial on account of a right to a view constituting the element of utility. They submitted that the arguability of the point of law was evident from the fact that the Supreme Court of Appeal expressed itself by a narrow majority in its judgment, with a forceful dissent from the minority.
Huntrex contended that the majority decision not only misapplied settled law, but misstated servitude legal principles, which misstatement now reflected the law. They submitted that this Court needed to provide legal certainty on the correct approach to the interpretation of servitudes. Huntrex maintained that this matter was of general public importance, as the public had an interest in the correct interpretation and enforcement of servitudes. They argued that if the Supreme Court of Appeal’s decision stood, private parties could agree to extensively and perpetually burden land regardless of public policy.
On the merits, Huntrex submitted that the findings of the minority in the Supreme Court of Appeal accorded with the proper approach to the determination of the nature of a personal versus praedial servitude, and that the Supreme Court of Appeal erred in applying a different test and concluding that the servitude was praedial. Ms Berzack submitted that this Court’s jurisdiction was not engaged as the difference between the majority and the minority was purely in relation to factual issues. She argued that mixed questions of fact and law required an evaluative assessment which it was not the function of this Court to undertake. On the merits, Ms Berzack averred that the majority’s analysis of both the language of the servitude as well as its essential feature was unassailable, including its conclusion that the servitude was praedial in nature.
She argued that a garden did indeed provide utility beyond mere pleasure and therefore the utility requirement was satisfied. She submitted that section 66 was thus of no application. Ms Berzack asked that the application for leave to appeal be dismissed with costs. The first judgment The first judgment, which holds majority, found that the appeal before the Court raised arguable points of law.
The arguable points of law raised included whether the garden servitude was praedial or personal; the legal certainty provided for specific provisions under the DRA and the imperative to explicate the test for identifying praedial servitudes; the meaning of usus under section 66 of the DRA; the content of the utility and perpetuity requirements for praedial servitudes; and the distinguishing feature of personal servitudes by way of the intensity of the burden imposed by them on the servient property. Regarding this matter being of general public importance, the first judgment held that it was because of a finding that the servitude was praedial, and that it would bind all future owners of the dominant and servient properties in perpetuity. Furthermore, it was of general public importance because, having registered garden servitudes in the past, the obligations of the Registrar of Deeds needed to be clarified in this regard and a number of praedial servitudes over servient properties for various purposes would be precluded from future registration, depending on the finding of this Court. The first judgment granted leave to appeal on the basis that the split decision of the Supreme Court of Appeal spoke to the reasonable prospects of success and this matter also provided an opportunity to provide legal certainty on specific areas of law.
On the merits, the first judgment embarked on an analysis of the legal nature of servitudes, the perpetuity requirement, the utility requirement, the consequences of the absence of utility and perpetuity and whether the servitude was lawfully registered as a praedial servitude. The first judgment found that the suggestion that clause P(b)(i), which precluded the 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) was incorrect. It was to be read together with clause P(b)(ii) and (iii), which protected Ms Berzack’s exclusive use of the area she gardened because of the wording that the existing wooden pole fence can only be extended and not removed. This had the effect of depriving the Bains of access to, possession of or use for any purpose of, the servitude area.
The first judgment held that the garden did not meet the requirement of perpetuity for a praedial servitude. As for the requirement of utility, the first judgment held that this too was not met. The first judgment found that because there was no compliance with the perpetuity and utility requirements for a praedial servitude, the registration was unlawful. It further found that the servitude in this case was one of usus.
The first judgment granted leave to appeal and upheld the appeal. It set aside the order of the Supreme Court of Appeal, which was substituted with an order that stated that leave to appeal was granted and that the appeal was upheld. The order of the High Court was also amended so as to provide that the servitude would operate as a personal servitude of usus until the death of Ms Berzack or the transfer of the property, whichever was the earlier. Ms Berzack was ordered to pay Huntrex’s costs of the application for leave to appeal and the appeal in this Court, including the costs of two counsel.
The second judgment The second judgment penned by Chaskalson AJ (with Zondo CJ concurring) disagreed with the reasoning of the first judgment and its conclusions on the merits of the appeal. It held that the servitude was a praedial servitude. Therefore, the second judgment would have granted leave to appeal and dismissed the appeal. The second judgment’s central point of departure with the first judgment is that the servitude makes clear that Ms Berzack’s property constitutes a dominant property.
This, it holds, is a decisive factor in determining whether a praedial servitude exists. Since the servitude was registered in favour of the Berzack property, this meant that the servitude was a praedial one. The second judgment questions whether there is still any distinct requirement of perpetuity. But even perpetuity and utility were distinct requirements, the second judgment held that both requirements were fulfilled in this case.
This was so in regard to the perpetuity requirement because the land and soil on which the garden existed was permanent, and could be enjoyed by successors in title of the Berzack property regardless of what happened to the garden itself. Regarding the utility requirement, any successive owners of the Berzack property were able to use the garden and thus benefit from the servitude in their capacity as owner of the property. Such owners also benefitted from the property because the garden enhanced the aesthetic appeal and price of the property. The second judgment held, therefore, that the applicants’ reliance on the lack of perpetuity or utility to prove that the servitude was personal, and not praedial, had to fail.
The second judgment held further that the wording of the servitude was clear, in that it intended to create a praedial servitude in favour of successors in title who owned the Berzack property. Thus, it held, the servitude vested in the property itself, and not Ms Berzack personally, a clear indication that it was a praedial servitude. Finally, the second judgment held that the law of servitudes was outdated, requiring both lawyers and laypersons to make sense of 17th Century Roman-Dutch Law principles in order to apply it to a 21st century South African context. This was undesirable given the vast differences in the worlds in which these principles applied.
Therefore, the second judgment held that intervention from the South African Law Reform Commission and Parliament was necessary to ensure that the law of servitudes reflects modern-day South Africa. The third judgment The third judgment, penned by Bilchitz AJ, concurred with the second judgment that the servitude was praedial in nature. However, it found that two additional matters needed to be addressed: first, the servitude needed to be interpreted to determine whether it granted Ms Berzack exclusive rights of access and control over the servitude area. Secondly, it needed to be determined whether Ms Berzack could exercise her servitude in an absolutist manner – through refusing to permit any modification to the existing fencing – without regard to the interests of Huntrex, and the companion animals (or other potentially vulnerable parties) residing on the property.
On the first issue, the third judgment focused on the common law principle that, where a servitude was ambiguous, it should be interpreted in a way that least encumbered the servient property. In the view of the third judgment, this servitude did not unambiguously create a right of exclusive access for Ms Berzack. If interpreted to do so, the servitude would almost completely deprive the Huntrex owners of their enjoyment of that part of their property. The presumption thus operated in favour of a restrictive interpretation of the servitude – namely, that Ms Berzack does not have exclusive rights of access to the servitude area.
On the second issue, the exercise of Ms Berzack’s powers in terms of the servitude – her refusal to permit any modification of the existing fencing - implicated the common law principle that a servitude must be exercised in a reasonable manner (civiliter modo) and in a way that considered the servient owner’s interests. The third judgment found that this principle entailed balancing the interests of the servitude holder and servient property owner and embodies an acknowledgement that a servitude was essentially relational in nature. This principle was consistent with and required development in light of the Constitution, which required a rejection of an absolutist approach to property rights that permitted the exercise of those rights without due concern for those affected and the wider environment. In this case, Ms Berzack already had a duty to consider the interests of the Huntrex owners and their desire and duty to ensure the safety of the dogs they care for.
However, the third judgment found that the common law should be developed to require a servitude holder to consider the interests of all those who can be affected by the exercise of a servitude. This included the interests of unlawful occupiers on a property, children and non-human animals. Since the Constitutional Court had found that animals such as dogs have intrinsic value as individuals, their interests needed to be considered by Ms Berzack in their own right. The existing fencing allowed the dogs to escape the Huntrex property, thus exposing them to the risk of injury or loss of life.
Permitting the modification of the fence to prevent the escape of the dogs would be consistent with what the existing servitude sought to accomplish and would not harm Ms Berzack’s enjoyment of her entitlements. Therefore, by refusing to agree to the modification of the existing fencing on the servitude area, Ms Berzack failed to exercise her servitude civiliter modo. In relation to remedies, the third judgment held that, by virtue of section 173 of the Constitution, this Court had the power to order just and equitable relief where the Court’s general jurisdiction is invoked. Even if the focus of argument in this case was on whether the servitude was praedial or personal, the Court had a duty to ensure substantive justice and must not be shoehorned by the parties to address a narrow question if the result leads to an unjust state of affairs capable of harming vulnerable individuals’ interests.
Therefore, the third judgment would have, in addition to finding the servitude was praedial, ordered that the servitude be interpreted in such a way that Ms Berzack could not claim exclusive access to the servitude area. It would also have ordered that the servitude be exercised civiliter modo, which would have required Ms Berzack to permit the modification of the fencing for purposes of ensuring protection for the dogs cared for by the Huntrex owners.
Published by the court for the media; it does not form part of the judgment.
APPLICANT’S COUNSEL DETAILS APPLICANT’S ATTORNEYS DETAILS Adv S Rosenberg SC Email.: rosenberg@capebar.co.za Mobile.: 072 831 1554 Adv TR Tyler Email.: ttyler@law.co.za Mobile.: 082 709 6344 Mr SG Lamprecht LAMPRECHT & ASSOC IATES INC Email.: stephen@lamprecht-attorneys.co.za Mobile.: 074 969 6437 IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CCT case no : 69/2023 SCA case no.: 210/2021 WCC case no.: 6407/2020 In the matter between: HUNTREX 277 (PTY) LTD Applicant and MARGO BERZACK First Respondent THE REGISTRAR OF DEEDS : CAPE TOWN Second Respondent THE CITY OF CAPE TOWN MUNICIPALITY Third Respondent APPLICANT’S WRITTEN ARGUMENT 2 TABLE OF CONTENTS I INTRODUCTION 3 II CENTRAL FACTS AND CENTRAL DISPUTE 4 III SECTION 66 OF DEEDS REGISTRIES ACT 9 (a) Introduction 9 (b) Common law underpinning section 66 9 (c) Interpretation and enforcement of section 66 16 IV REQUIREMENTS FOR PRAEDIAL SERV ITUDES 24 V SUBVERSION OF LOCAL LAND USE ORDINANCE 32 VI CLAUSE P(b)(i) OF SERVITUDE 34 VII COUNTER-APPLICATION 36 VIII JURISDICTION 38 (a) Arguable points of law 38 (b) Of general public importance 39 (c) Interests of Justice 39 IX CONCLUSION 40 3 I INTRODUCTION 1 The applicant (“Huntrex 277”) was the first respondent in the Su- preme Court of Appeal (“SCA”), in which the applicant in the mat- ter, the present first respondent (“Mrs Berzack”), sought leave to appeal against a judgment delivered by a single Judge in the Court of first instance. By a majority of three to two the SCA granted leave to appeal and thereupon upheld the appeal. Huntrex 277 wishes to appeal against that judgment. It maintains that the Minor- ity Judgment was correct and that the Majority Judgment was in- correct. In the premises Huntrex 277 seeks the leave of this Hon- ourable Court to appeal to it against the Majority Judgment and or- der of the SCA. 2 The question raised in the proposed appeal is the following: Whether a servitude, which permitted the owner of a residential erf to undertake pleasurable gardening activities on approximately one quarter of a neighbouring residential erf and prescribed the materi- al of which the garden fence might be constructed, (a) constituted a personal servitude of usus in favour of the owner of the first- mentioned erf, so that, in terms of section 66 of the Deeds Regis- tries Act 47 of 1937 (“section 66”) it was not capable of being law- 4 fully registered against the title deed of the last-mentioned erf inso- far as it purported to extend beyond the lifetime of that owner, or whether, on the other hand, (b) was lawfully capable of being regis- tered against the title deed of the last-mentioned erf (notionally the servient tenement) as a praedial servitude, thus in perpetuity bur- dening it in favour of the first mentioned erf (notionally the domi- nant tenement). II CENTRAL FACTS AND CENTRA L DISPUTE 3 Huntrex 277 is the owner of Erf 8478, Constantia (“the Huntrex 277 property”). Mrs Berzack is the owner of the remainder of Erf 380, Constantia (“the Berzack property”). 4 Mrs Berzack was previously the owner of Erf 380 Constantia (“the parent property”), on which was situated her house and an estab- lished garden. Prior to 2 December 1982 she subdivided the parent property into two erven, namely the Berzack property (to the East) and the Huntrex 277 property (to the West). She wanted to retain the Berzack property, on which her house was situated, while sell- ing the Huntrex 277 property. 5 Mrs Berzack’s garden, which was physically demarcated along its Western perimeter by a wooden pole fence (which still exists), ex- 5 tended well onto that part of the parent property which, upon sub- division, became the Huntrex 277 property. Mrs Berzack’s initial in- tention had been to align the subdivision with the wooden pole fence, so that the whole of her garden would remain a part of the Berzack property. 6 However, although none of the parties has been able to identify it, it is common cause that erven in the neighbourhood, including the parent property, were subject to a local land use ordinance 1 , which imposed a minimum erf size of 4 000 m 2 on erven 2 . The parent property was too small to admit of the subdivision that Mrs Berzack sought: If it was so subdivided that the garden remained a part of the Berzack property, the Huntrex 277 property would be signifi- cantly smaller than 4 000 m 2 , so that such subdivision was pro- scribed by the ordinance. 7 Accordingly, the subdivision of the parent property was effected in accordance with the ordinance. The Berzack property was 4320 m 2 1 This was likely a regulation in relation to a town planning scheme under section 35(1) and (2) read with section 60(e) and item 10 in the Second Schedule of Cape Ordinance 33 of 1934. 2 Record Vol 1 p 77 (Answering affidavit para 28). 6 in extent and the Huntrex 277 property was 4013 m 2 in extent 3 . 8 It follows that after the subdivision a significant portion of Mrs Ber- zack’s established garden lay within the Huntrex 277 property. In order to overcome this impact of the land use ordinance, Mrs Ber- zack conceived a plan, which she expressed as follows 4 : “As appears from annexure ‘MB-4’, an unavoidable conse- quence of the subdivision was that a significant portion of my existing (private) garden fell within the Huntrex property. I wished to protect, for my benefit and for the successors in title to the Berzack property the exclusive right to use, access and tend that portion of the garden by creating a servitude over the Huntrex 277 property at the same time as selling and transfer- ring it.” 9 On 2 December 1982 Mrs Berzack sold the Huntrex 277 property to Mr A G Wellens. Her abovementioned plan was implemented in the deed of sale concluded between them, which provided for the introduction of the servitude now in issue as clause P of the deed of transfer (“the servitude”) 5 . The servitude is quoted both in the 3 Record Vol 1 p 30 (Founding Affidavit annexure “A”: title deed). 4 Record Vol 1 p 78 (Answering Affidavit para 31). 5 Record Vol 1 p 37 and 40 ( Founding Affidavit annexures A and B: title deed and diagram ). 7 Majority Judgment and in the Minority Judgment 6 , and is not here repeated. We simply wish to emphasise, in the light of the Minority judgment, that the servitude was imposed by Mrs Berzack “in fa- vour of himself [sic] and his [sic] successors in title as owner of [the Berzack property]” but not in favour of the Berzack property itself. 10 The right to “use, access and tend” the portion of the existing gar- den on the Huntrex 277 property, which Mrs Berzack wished to se- cure, was embodied in clauses P(b)(ii) and (iii) of the servitude. The actual rights conferred are (in clause P(b)(ii)) “the right to plant, control, care for and renew the existing garden” and (in clause P(b)(iii)) “full rights of access to such servitude area”. Clause P(b)(i) will be addressed below. In the light of the Majority Judgment it may be noted that the right to harvest produce from the garden was not expressly reserved. 11 It is important to appreciate that the servitude, which is 20 metres wide, covers approximately one third (by estimation) of the surface area of the Huntrex 277 property 7 . Because the wooden pole fence which demarcates the outer perimeter of the garden does not 6 Record Vol 3 p 238 – 239 para
[9](Majority Judgment); p 253 para
[37](Minority Judgment). 7 Record Vol 1 p 57 (Founding Affidavit annexure “E”), 8 follow the servitude boundary, but runs diagonally across the servi- tude area, the whole of the servitude area is not used as Mrs Ber- zack’s garden. A visual examination of the relevant diagram re- veals that approximately one quarter of the surface area of the Huntrex 277 property is actually used for the garden. 12 Mrs Berzack has stated that it was her and Mr Wellens’s common understanding that the servitude would enure to any subsequent owners of the Berzack property 8 , and this much has been con- firmed by Mr Wellens 9 . 13 Huntrex 277 submits that, objectively assessed with reference to its stated content, the servitude was a personal servitude of usus in favour of Mrs Berzack personally, so that it was barred by section 66 of the Deeds Registries Act from being lawfully registered as a praedial servitude, which would have had the effect of extending it beyond her lifetime. Mrs Berzack, on the other hand, submits that it was lawfully capable of being registered as a praedial servitude in perpetuity. That is, and has from the outset been, the central dis- pute between Huntrex 277 and Mrs Berzack. 8 Record Vol 1 p 79 (Answering Affidavit, para 32.6). 9 Record Vol 2 p 126 (Affidavit of Mr Wellens, para 6). 9 III SECTION 66 OF THE DEEDS REGISTRIES ACT 47 OF 1937 (a) Introduction 14 Section 3(1)(o) of the Deeds Registries Act provides that the Reg- istrar of Deeds shall “register any servitude, whether personal or praedial, . . .”. There is, accordingly, no objection to the registration per se of personal servitudes. However, section 66 qualifies sec- tion 3(1)(o) 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 transfer or cession of such personal servitude to any person other than the owner of the land encumbered thereby, be registered.” 15 Huntrex 277 relies not only on the literal interpretation and en- forcement of section 66, but also on the common law which under- pins it. (b) Common law underpinning section 66 16 Ownership confers certain entitlements upon the owner of a thing, such as (a) the entitlement to use the thing (ius utendi); (b) the enti- tlement to draw natural fruits (fructus naturales) and civil fruits (fructus civiles) from the thing (ius fruendi); and (c) the entitlement 10 to possess the thing (ius possidendi) 10 . We regard these as the “central entitlements” of ownership. There are other entitlements, such as (d) the entitlement to consume and destroy the thing (ius abutendi); (e) the entitlement to dispose of the thing (ius disponen- di); the entitlement to claim the thing from an unlawful occupier (ius vindicandi); and the entitlement of resist any unlawful invasion (ius negandi) 11 but they do not arise for consideration in the present matter. 17 Ownership has been described as a “mother right”, which is unlim- ited in duration. It has a residuary character, which implies that no matter how many central entitlements the owner disposes of, he or she retains a reversionary right to them 12 . There are, of course, numerous ways in which the central entitlements of ownership may be curtailed or lost. They may be curtailed by the owner himself or herself, for example, when the property is let, or is hypothecated, or is given in pledge. The entitlements of ownership may also be curtailed or lost independently of the will of the owner, for example, 10 Silberberg & Schoeman The Law of Property (6 th Ed) at 104 – 105; Van der Merwe Sakereg (2 nd Ed) at 173. 11 Ibid 12 Silberberg & Schoeman The Law of Property (6 th Ed) at 105 - 107; Van der Merwe Sakereg (2 nd Ed) at 174 – 176. 11 by the law of neighbours or by the law of expropriation or by nu- merous legislative provisions which broadly fall within the scope of public law, such as, most commonly, town planning and building regulations (and the approvals required thereunder) 13 . In this doc- ument we focus solely on the curtailment or loss of the central enti- tlements of ownership occasioned by servitudes. 18 A servitude over property is a limited real right in terms of which the owner forfeits the full exercise of the central entitlements of owner- ship in favour of a servitude-holder, either by (positively) conferring upon the servitude-holder a right to use or enjoy his property in a defined manner or by (negatively) conferring upon the servitude- holder the right to restrain the owner from using or enjoying his property in a defined manner 14 . 19 An essential characteristic of praedial servitudes is that they are conferred in favour of a dominant tenement over a neighbouring or proximate servient tenement. Given the permanence of the tene- ments, praedial servitudes constitute a perpetual burden upon the 13 See generally, Silberberg & Schoeman The Law of Property (6 th Ed) at 107 – 150; Van der Merwe Sakereg (2 nd Ed) at 176 – 213. 14 Silberberg & Schoeman The Law of Property (6 th Ed) at 371 – 372; Van der Merwe Sakereg (2 nd Ed) at 458 – 459, 463 (iv) 12 servient tenement, well beyond the lifetime of the owner of the dominant tenement at the time that they were first granted 15 . How- ever, not one of the traditionally recognised praedial servitudes, whether they are rural 16 or urban 17 , to a significant degree divest the servient owner of the central entitlements of ownership. They merely curtail the exercise of those entitlements, to the extent that it is necessary to accommodate the exercise by the dominant own- er of his or her rights. The residuary character of ownership means that the servient owner may exercise all the central entitlements of ownership to the extent that they have not been so curtailed in fa- vour of the dominant owner 18 . Given this minimal curtailment of the central entitlements of the servient owner, it follows that in practice the traditionally recognised praedial servitudes leave intact the great preponderance of the servient owner’s central entitlements. 15 Silberberg & Schoeman The Law of Property (6 th Ed) at 372 – 373; Van der Merwe Sakereg (2 nd Ed) at 467. 16 As to rural praedial servitudes see Silberberg & Schoeman The Law of Property (6 h Ed) at 377 – 378; Van der Merwe Sakereg (2 nd Ed) at 481 – 497. 17 As to urban praedial servitudes see Silberberg & Schoeman The Law of Property (6 h Ed) at 378 – 379; Van der Merwe Sakereg (2 nd Ed) at 497 – 501. Voet 8.2 (Gane’s Translation Vol 2 pp 438 – 460 describes a plethora of urban praedial servitudes, which appear to be variations on a few cen- tral themes. More recently, registered restrictive conditions governing the use of land or the erec- tion of structures in townships have been recognised in South Africa as urban praedial servitudes, as to which see Silberbeg & Schoeman The Law of Property (5 th Ed) at 343 – 356; Van der Merwe Sakereg (2 nd Ed) at 501 – 505. 18 Silberberg & Schoeman The Law of Property (6 th Ed) at 379 para 14.3.3; Van der Merwe Sakereg (2 nd Ed) at 464 – 465 (para i). 13 In other words, the fact that praedial servitudes are of indefinite du- ration ordinarily does not impact significantly on the servient own- er’s enjoyment of the ownership of his or her land. 20 On the other hand, the personal servitudes of usufruct 19 , usus 20 and habitatio 21 in respect of land are entirely different. They are conferred for the enjoyment of a person, and they do, to a greater or lesser extent, substantially divest the owner of the subject land of the central entitlements of ownership, by vesting them in the beneficiary under servitude. In the case of usufruct the central enti- tlements are almost completely forfeit. In the case of usus and hab- itatio they are forfeit to a somewhat lesser extent, but still to a de- gree that leaves the subject property substantially useless in the hands of its owner. It is for this reason that at common law the du- ration of the right conferred by a personal servitude was confined to the lifetime of the beneficiary of the right, ie, so that the right per- 19 LAWSA Vol 24 (2 nd Ed) at para 581. See also Van der Merwe Sakereg (2 nd Ed ) at 508; Silberberg & Schoeman The Law of Property (6 th Ed) at 383, para 14.4.2. 20 LAWSA Vol 24 (2 nd Ed) at para 600. See also Van der Merwe Sakereg (2 nd Ed ) at 521; Silberberg & Schoeman The Law of Property (6 th Ed) at 337, para 14.4.3. 21 LAWSA Vol 24 (2 nd Ed) at para 600. See also Van der Merwe Sakereg (2 nd Ed ) at 523; Silberberg & Schoeman The Law of Property (6 h Ed) at 387, para 14.4.4 14 ished with the beneficiary 22 . The common law discountenanced the possibility that the ownership of land might in perpetuity be di- vorced from the central entitlements of ownership, as is evidenced, for example, by the presumption against servitudes. 21 Thus, 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. The following has been said in this regard 23 : “If one considers the duration of a praedial servitude, this kind of servitude imposes a significant burden on the servient tene- ment because the burden is in principle perpetual. However, if one considers the use and enjoyment entitlements of the servi- ent owner, a personal servitudes (like usufruct) places a more intense burden on the servient owner over a relatively shorter period of time than a praedial servitude (like a right of way or a grazing right) which places a burden of comparable lower inten- sity on the servient owner perpetually.” 22 If personal servitudes were permitted to be of indefinite duration, 22 Silberberg & Schoeman The Law of Property (6 h Ed) at 372 – 373 footnote 17; Willoughby’s Con- solidated Co Ltd v Copthall Stores Ltd 1913 AD 267 at 282 (“From the very nature of a personal servitude, the right which it confers is inseparably attached to the beneficiary. Res servit personae. He cannot transmit it to his heirs, nor can he, alienate it; when he dies it perishes with him. (Voet, 8, 1, 4: Louw v Van der Post, etc.)”); See also Van der Merwe Sakereg (2 nd Ed ) at 506, footnote 351. 15 like praedial servitudes, the beneficiary of the right, having become entitled in perpetuity to exercise the central entitlements of owner- ship in respect of the subject property, would become the de facto owner of the subject property, while the denuded ownership of the owner of the subject property would correspondingly reduce him or her to a purely nominal or token owner of the subject property. 23 It is respectfully submitted that the underpinning policy of section 66 of the Act is to avoid the above outcome. This it expressly achieves, in relation to usufruct, usus and habitatio, by providing that those servitudes shall not “extend beyond the lifetime of the person in whose favour it is created”, or, in other words, that they are indeed personal servitudes in accordance with the common law restriction on their duration. We submit that the underpinning policy of the common law would preclude the registration as a praedial servitude of any personal servitude which approximates in restric- tive effect to the personal servitudes mentioned above. 24 Mrs Berzack indisputably relies on the servitude to divest the own- er of the Huntrex 277 property in perpetuity of the central entitle- ments of ownership in respect of about one quarter of the property, 23 Silberbeg & Schoeman The Law of Property (6 th Ed) at 373 16 and to confer those entitlements in perpetuity upon the owners from time to time of the Berzack property. She is precluded from doing so not only by section 66, to which we now turn, but also by the common law that underpins it. (c) Interpretation and enforcement of section 66 25 The interpretation and enforcement of section 66 requires that meaning must be given to its language. The Deeds Registries Act does not define usufruct, usus or habitatio. One must accordingly turn to the common law, where those meanings are well- established. Only the definition of usus is presently relevant. 26 The Minority Judgment quoted the definition of usus as framed by Van der Walt 24 . There are several other definitions of usus which correspond with Van der Walt’s definition 25 . All of them have in common that usus substantially divests the owner of property of, and confers upon the beneficiary of the servitude, his or her ius utendi, his or her jus possidendi and (to a greater or lesser degree) his or her jus fruendi. A vital distinction between usus and usufruct 24 Record Vol 3 p 260 para
[54]Minority Judgment; Van der Walt The Law of Servitudes (Juta 1 st Ed) at 488. 17 is that in the case of usus the beneficiary may take the fruit, vege- tables and other produce of the land for his or her own daily needs and the needs of his or her household, but that the rest of the pro- duce belongs to the owner who may enter the land in order to gather the produce. In other words, usus curtails the servient own- er’s ius fruendi to a lesser degree than usufruct, which allows the beneficiary to harvest all the produce of the land. In the present in- stance this distinction is of little import, because the servitude area on the Huntrex 277 property is not and never was used for the cul- tivation of produce. 27 The Minority Judgment, having drawn attention to certain limita- tions imposed by law upon the freedom of contracting parties to create servitudes by agreement between themselves, addressed the common law presumption that land is free of a servitude, and that in case of doubt the interpretation of the servitude which least encumbers the servient tenement will be adopted 26 . The following 25 Silberberg & Schoeman The Law of Property (6 h Ed) at 387; Van der Merwe Sakereg (2 nd Ed ) at 506, footnote 521; LAWSA Vol 24 (2 nd Ed) at para 600; Du Bois Wille’s Principles of South Africa Law (9 th Ed) at 610. 26 Record Vol 3 pp 355 -256 para
[43]–
[46]Minority Judgment and the authority there referred to: Willoughby’s Consolidated Co Ltd v Coptall Stores Ltd 1918 AD 1 at 16; Kruger v Joles Eien- domme (Pty) Ltd 2009(3) SA 5 SCA) at para [8]; Jonordon Investments (Pty) Ltd v De Aar Drank- winkel (Edms) Bpk 1969(2) SA 117 (C) at 126 A – B; Lorenz v Melle and Others 1978(3) SA 1044 (T) at 1049 H. 18 dictum was quoted with approval 27 : “Where it is doubtful whether a servitudal burden placed on land was intended for the benefit of another property and therefore praedial and perpetual or for the benefit of a particular person and therefore, personal and limited in duration, the latter inter- pretation must be adopted as being the one which places the lesser burden of the subject matter of the servitude.” 28 The Minority Judgment thereupon proceeded to interpret the lan- guage of the servitude, to establish whether it actually achieved the creation of a praedial servitude 28 . On the basis inter alia of the fact that the servitude had been “imposed” by Mrs Berzack in favour of herself and her successors in title to the Berzack property, but not in favour of the Berzack property itself, as is strictly required for the creation of a praedial servitude, the Minority Judgment found that there was uncertainty about the true nature of the servitude. Thus, in the light of the presumption already mentioned above, the Minor- ity Judgment found that as a matter of interpretation the servitude in casu was a personal servitude rather than a praedial servitude. We respectfully embrace this finding. 27 Record Vol 3 pp 256 – 257 para 26] Jonordam Investment (Pty) Ltd v De Aar Drankwinkel (edms) Bpk 1969(2) SA 117 (C) at 126 A-B 19 29 But even if the Minority Judgment should be wrong in this regard, and it is found that the creation of a praedial servitude was intend- ed, the question remains whether Mrs Berzack and Mr Wellens were lawfully permitted by agreement between themselves to achieve that outcome. The Minority Judgment addressed also this question 29 . It is undisputed that clauses P(b)(ii) and (iii) of the ser- vitude were introduced because Mrs Berzack wanted to continue the pleasurable activity of gardening on the portion of the Huntrex 277 property which she had sold 30 . More particularly, her stated purpose was that she wanted to “use, access and tend that portion of the garden” that lay on the Huntrex 277 property 31 . 30 The Minority Judgment, in addressing this issue, expressed the fol- lowing finding 32 : “When Ms Berzack’s stated intention is matched with clauses P(b)(ii) and (III), there can be little doubt that she sought to, and did, create a right of use for herself. It seems clear to us that the servitude thus created falls squarely into the definition of the 28 Record Vol 3 pp 258 – 260 paras
[49]–
[53]Minority judgment 29 Record Vol 3 pp 54 – 56 paras
[54]–
[56](Minority Judgment) 30 Record Vol 1 p 22 ( Founding Affidavit, para 50 ), which has not been disputed: See Record Vol 1 p 85 ( Answering Affidavit para 55 and 56 ). 31 Record Vol 1 p 79 ( Answering Affidavit para 31 ). 32 Record Vol 3 p 260 para 55 (Minority Judgment) 20 personal servitude of usus.” 31 We respectfully say that this finding is correct. Objectively regard- ed, the right to use, access and tend a garden on the land of an- other, thereby absolutely curtailing the ius utendi and ius possiden- di of the owner, indisputably falls within all the definitions of the personal servitude of usus. 32 Upon this point the Majority Judgment and the Minority Judgment diverge. According to the Majority Judgment the servitude does not fall within the definition of usus at all. As we understand it, the rea- soning is that the servitude escapes that definition by virtue of the fact that in the case of usus the right is conferred upon the benefi- ciary to take fruit, vegetables and other produce of the land for his or her own daily needs and the needs of his or her household, but that the rest of the produce belongs to the owner 33 (ie, allowing the owner of the subject property to exercise a qualified jus fruendi). The implication appears to be that the servitude could not have constituted usus unless it was expressly named as such, or unless it expressly preserved the ius fruendi of Huntrex 277 to the extent indicated, ie, by acknowledging the right of Huntrex 277 to take 21 fruit, vegetables, etc, not used by Mrs Berzack. We respectfully re- quest this Honourable Court to reject the above reasoning and im- plication. The Majority Judgment disregarded the fact that Mrs Ber- zack’s garden on the servitude area was not being used to cultivate anything which might be harvested. On the contrary, the available photographic evidence shows that a well-established pleasure gar- den, with shrubs, flower beds and shading trees, existed on the servitude area 34 . But even if there were fruit trees on the servitude area from which Huntrex 277 might harvest fruit unplucked by Mrs Berzack, the right to do so would flow naturally from the existence per se of the servitude of usus. It would not be necessary expressly to reserve that right to Huntrex 277 in order to establish the servi- tude of usus. And the fact remains the curtailment of Huntrex 277’s ius utendi and ius possidendi in relation to the servitude area (re- gardless of the right to take unused produce) were absolute. We therefore respectfully challenge the view of the Majority Judgment that, absent any provision which preserves the right of Huntrex 277 to take produce not used by Mrs Berzack, the servitude “has all the hallmarks of a praedial servitude, not a personal servitude of usus”. 33 Record Vol 3 p 249 – 250 paras
[28]and
[29](Majority Judgment) 22 We accept that there is no numerus clausus of servitudes, and that they may be incrementally expanded. But what the Majority Judg- ment has done is not an incremental expansion. If the above pro- nouncement of the Majority Judgment stands it may well serve as authority for the broader proposition that a servitude, which abso- lutely curtails the ius utendi and the ius possidendi of the owner of a servient tenement, might property be registered as a praedial servitude in favour of a dominant tenement, thus extending the burden imposed dramatically beyond the very benign restrictions imposed by the presently recognised traditional praedial servi- tudes. 33 In the light of its finding that the servitude falls squarely into the definition of the personal servitude of usus, the Minority Judgment expressed the following conclusion 35 : “As s. 66 of the Deeds Registries Act prohibits the registration of a personal servitude of usus that purports to extend beyond the lifetime of the person who created it, Ms Berzack was not legally capable of ‘imposing’ the servitude on the purchaser of her property in favour of herself and her successors in title. That 34 Record Vol 2 pp103 – 109 (Answering Affidavit Annexures “MB6” to “MB12”) 35 Record Vol 3 p 261 para
[56]23 has the result that, irrespective of what the servitude says or what Ms Berzack intended, the servitude expires on her death. The import and effect of s. 66 of the Deeds Registries Act can- not be ignored. It reflects a legislative purpose to bolster the common law impediments to the extension of perpetual re- strictions on the ownership of property. Its effect is that once a servitude bears the hallmarks of a personal servitude, it pre- cludes registration.” 34 We respectfully say that, if this Honourable Court should uphold the finding that the servitude was indeed a personal servitude of usus, it should also uphold the above quoted conclusion of the Mi- nority Judgment. 35 We have already pointed out that the Minority Judgment, apply- ing the presumption against servitudal burdens, found that as a matter of interpretation the servitude was a personal servitude ra- ther than a praedial servitude. This Honourable Court may none- theless find that it was intended to be, and was, registered as a praedial servitude. However, insofar as section 66 precluded the registration of a servitude of usus as a praedial servitude, the mere fact that the servitude was actually registered as a praedial 24 servitude did not in fact convert it into a praedial servitude 36 . It follows in principle that even if Mrs Berzack and Mr Wellens in their deed of sale envisaged the creation of a praedial servitude, the outcome was not lawfully capable of being implemented 37 . IV REQUIREMENTS FOR PRAEDIAL SERVITUDE S 36 We have hitherto addressed the question whether the servitude ob- jectively fell within the ambit of usus, as it is used in section 66, in which event it was struck by the statutory prohibition against regis- tration in that section. There is an alternative approach, namely, to enquire whether the servitude objectively complied with criteria for the creation of a praedial servitude. That was an alternative ap- proach adopted also in the Minority Judgment 38 . 37 The objective requirements for a valid praedial servitude are (a) vi- cinitas, (b) perpetual cause, (c) utilitas, (d) passivity and (e) indivis- ibility 39 . The Minority Judgment focused on the requirements of perpetual cause and utility, and found that neither had been satis- 36 Lorentz v Melle and Others 1978(3) SA 1044 (T) at 1049 G 37 Eg Hubbard v Cool Ideas 1186 CC 2013(5) SA 112 (SCA) at para
[10]ff and authority there cited. 38 Record Vol 3 pp 262 – 267 paras
[58]–
[68](Minority Judgment) 25 fied. We respectfully embrace the views of the Minority Judgment in this regard 40 , and merely wish to highlight certain aspects there- of: 37.1 The requirement of utilitas entails that a praedial servitude may not be conferred to serve the personal pleasure or ca- price of the dominant owner, although there can be no objec- tion if the dominant owner coincidentally derives pleasure from exercising a praedial servitude which is otherwise properly of utility to the dominant tenement 41 . The origin of this requirement is Digest 8.1.8, which is as follows 42 : “A servitude cannot be created to allow us to gather fruit or to stroll or picnic on another’s land” 37.2 In the present matter the Majority Judgment expressly found that 43 : 39 LAWSA Vol 24 (2 nd Ed) at para 546; Van der Merwe Sakereg (2 nd Ed ) at 469 -471 (para (ii)) ex- presses the requirements somewhat differently, insofar as he regards perpetual cause as implicit in the requirement of utilitas; Du Bois Wille’s Principles of South Africa Law (9 th Ed) at 593 – 596. 40 Including the authority cited: Briers v Wilson and Others 1952(3) SA 423 © at 433 H – 434 F; Bisschop v Stafford 1974(3) SA 1 (A) at 11 F – 12 A; Hollman and Another v Estate Latre 1970(3) SA 638 (A) at 644 F - 45 B 41 LAWSA Vol 24 (2 nd Ed) at para 549; Van der Merwe Sakereg (2 nd Ed ) at 470 – 471; Du Bois Wille’s Principles of South Africa Law (9 th Ed) at 593 – 596; 42 Watson’s translation Vol 1. See also Voet 8,1.1 Gane’s Translation Vol 2 p432. 43 Record Vol 3 p 247 para
[24]Majority Judgment. 26 “[t]he right to garden is reserved on the servient land and it enures in favour of the Berzack property, serving the pur- suit of Ms Berzack’s personal pleasure or caprice” 44 37.3 We respectfully say that the aforesaid express finding plainly entailed that the utilitas requirement had not been satisfied in respect of the servitude, which ought to have impelled the Majority Judgment to the conclusion that the servitude did not comply with all the requirements for a praedial servitude, and ought therefore not to be recognised as such. 37.4 The Majority Judgment stated that “the modern praedial ser- vitude of view is similar in substance to the garden servitude [contended for by Mrs Berzack] 45 ”. Elsewhere the following was stated 46 : “An obvious concomitant of the garden servitude is that the servient tenement entitles the dominant tenement to view the grounds. The servitudal rights created indirectly serve as a guarantee that no structure can be constructed on the grounds designated as the garden area. In this fashion, the dominant tenement’s poolside entertainment area will al- 44 Record Vol 3 p 247 para
[24]Majority Judgment 45 Record Vol 3 p 247 para
[24]Majority Judgment 46 Record Vol 3 p 250 – 251 para
[32]Majority Judgment 27 ways be an area with a view as it is and will always be ad- jacent to a section of vacant land. That a view adds utilitas and enhances the value of residential property is incontro- vertible”. 37.5 The Minority Judgment controverted the above dicta 47 , and we respectfully embrace its views 48 . We merely wish to add that, insofar as the Majority Judgment invokes the ad- vantages of a view and/or the restriction of building in the garden area, it appears to invoke the rights historically con- ferred by urban praedial servitudes such as the servitus ne luminibus officiatur, or the servitus ne prospectui officiatur (prospectus), or the servitus luminis immitendi, or the servitus altius non tollendi 49 These are negative urban praedial servi- tudes, because they enable the dominant owner to forbid cer- tain things from occurring on the servient tenement. No such negative urban praedial servitude is registered over the Hunt- rex 277 property. We therefore respectfully submit that none 47 Record Vol 3 pp 264 -265 paras
[63]–
[64]Minority Judgment 48 Including the authority cited: Paola v Jeeva NO and Others 2004(1) SA 396 (SCA); Clark v Faraday 2004(4) SA 564 (C); Muller NO and Others v City of Cape Town and Another 2006(5) SA 415 (C); True Motives 84 (Pty) Ltd v Nadhi (Ethikwini Municipalty as Amicus Curiae) 2009(4) SA 153 (SCA).; 49 Silberberg & Schoeman The Law of Property (6 h Ed) at 378 para (a); Van der Merwe Sakereg (2 nd Ed ) at 498 – 499; LAWSA Vol 24 (2 nd Ed) at para 572. 28 of the rights conferred by them could properly be regarded as flowing by implication from the registered servitude in casu. The reason is that the servitude is a positive personal servi- tude, affirmatively permitting Mrs Berzack to use, access and tend a garden, and is therefore utterly dissimilar to the nega- tive urban praedial servitudes mentioned above. Moreover, the negative urban praedial servitudes mentioned above have largely been overtaken by the operation of public law, such as town planning and building regulations (and the ap- provals required thereunder), and are nowadays rarely en- countered 50 . In relation to tenements where views are im- portant the servitudes of prospectus and ne prospectui offici- atur may still play a role, but they have to be registered as such and can only be imposed in respect of a place which lies lower than the point from which the view is enjoyed 51 . There is no evidence that this is true of the Berzack property vis-à-vis the Huntrex 277 property. These issues do not have to be dealt with more fully in the proposed appeal, but we re- spectfully suggest that they demonstrate that the Majority 50 Van der Merwe Sakereg (2 nd Ed ) at 499; LAWSA Vol 24 (2 nd Ed) at para 576, 577 and 578. 29 Judgment was incorrect in relying on the aforesaid negative urban praedial servitudes to give content to or to interpret the servitude. We respectfully say that to the extent that the Ma- jority Judgment did so it was mistaken. 38 A focus of Mrs Berzack’s reasoning in defending the servitude as a praedial servitude is that her successors-in-title are likely to derive economic benefit from the gardening rights which the servitude confers, which benefit satisfies the utilitas requirement for praedial servitudes. That her successors-in-title will derive such benefit is self-evidently true. Every subsequent owner of property in favour of which personal rights have been registered as praedial servitudes will obviously, inevitably derive economic benefit from the perpetui- ty of the personal entitlements so conferred — simply because such perpetuity is to a greater or lesser extent tantamount to the conferring of ownership. 39 But Mrs Berzack’s reasoning is fallacious because it begs an af- firmative answer to the antecedent question whether those rights may be lawfully conferred at all upon her successors-in-title. Sec- tion 66 and the common law proclaim that they cannot. 51 Kruger v Downer 1976(3) SA 172 (W) at 178 C – G. 30 40 It is respectfully submitted that the provisions of section 66 define the boundary between praedial servitudes and the personal servi- tudes of usufruct, usus or habitatio, beyond which any broadening or development of the utilitas requirement for praedial servitudes cannot be permitted to expand. If that were not so, section 66 would be a dead letter, at any rate in relation to adjacent or proxi- mate erven, because it would always be possible to register the aforesaid personal servitudes as praedial servitudes by the simple expedient of not naming the servitudes but simply expressing in a title deed the reservation of such personal entitlements as are de- sired; and thereupon arguing, as Mrs Berzack does, that those en- titlements are of utility to the dominant tenement — which they would inevitably be. This could lead to the potentially chaotic prolif- eration of praedial servitudes which impose hitherto unheard of burdens upon servient tenements, concomitantly extinguishing the central entitlements of ownership of the servient owners. An ex- treme example would be where all the rights of usufruct are re- served in favour of a dominant tenement without actually naming the servitude as usufruct. The utility in that case for the dominant tenement — the increase in its value — would obviously be im- mense, but nothing would remain of the dominant owner’s owner- 31 ship except a bare title. 41 In the final analysis Mrs Berzack contends for a praedial servitude which did not feature among the older, traditional servitudes and which, we respectfully submit, should not be recognised in con- temporary South African law, namely, a servitudal right which in perpetuity confers upon the dominant tenement (and in perpetuity divests the servient tenement of) the central entitlements of owner- ship in respect of up to one quarter of the surface area of the servi- ent tenement. 42 It is necessary to draw attention to the judgment in Olive Marketing CC v Eden Crescent Share Block Ltd and Others 2021(2) SA 170 (KZD). In that matter a servitude which was substantially a person- al servitude of usus was registered as a praedial servitude over (apparently) a very large portion of the servient tenement (as a parking servitude for at least 250 vehicles). Reliance was placed in Olive Marketing (at para
[69]footnote 41) on Body Corporate Sea- scapes v Ford and Others 2009(1) SA 252 (SCA) as authority for the unqualified proposition that “a parking servitude is one of the praedial servitudes permitted under modern property law”. 43 It is respectfully submitted, however, that the latter case was actu- 32 ally concerned with servitudes granted and registered specifically in terms of section 29 of the Sectional Titles Act 95 of 1986, and did not support the unqualified proposition made by the Court in Ol- ive Marketing. It is respectfully submitted that Olive Marketing was incorrectly decided, because the Court in that matter was not re- ferred to and did not consider the impact of section 66 of the Deeds Registries Act. V SUBVERSION OF LOCAL LAND USE ORDINANCE 44 It is common cause that the servitude was prompted by Mrs Ber- zack’s wish to overcome the effect of a local land use ordinance, which imposed a minimum erf size of 4 000 m 2 on erven in the neighbourhood. Such restrictions are imposed because a compe- tent local authority has, as a matter of policy, established minimum criteria for the viability of residential erven in a particular neigh- bourhood. They are public law restrictions, legislatively imposed upon property and cannot be waived unless all lot-holders agree 52 . 45 Mrs Berzack purported to sell the Huntrex 277 property while re- taining for herself and her successors-in-title, in perpetuity, the cen- 52 LAWSA Vol 24 (2 nd Ed) at para 578 33 tral competences of ownership in relation to so much of her exist- ing garden as lay upon the Huntrex 277 property. That meant the Berzack property was de facto substantially larger than its actually registered size. However, it also meant, conversely, that the Hunt- rex 277 property was de facto substantially smaller than its actually registered size, and well under the prescribed minimum of 4 000 m 2 . It follows that the servitude in effect subverted the local land use ordinance, and flouted its underlying policy, by creating the Huntrex 277 property as an erf which was actually much smaller than was regarded as viable in the area. Any official diagram of the Huntrex 277 property, purporting to show it as an erf with a mini- mum extent of 4 000 m 2 , is substantially a fiction. 46 Mrs Berzak has candidly admitted that the express purpose of the servitude was to circumvent the local land use ordinance, and thus to achieve the above outcome, which, we respectfully suggest, was an illegal purpose. If that is so, the contract between Mrs Berzak and Mr Wellens, to the extent that it was actuated by the aforesaid illegal purpose, was unenforceable and could not have culminated 34 in the lawful registration of the servitude 53 . VI CLAUSE P(b)(i) OF THE SERVITUDE 47 Clause P(b)(i) of the servitude provides as follows: “No wall or fence of any description shall be erected on the ser- vitude boundary except extension of existing type of fencing (wooden pole fencing).” 48 It is respectfully submitted that clause P(b)(i) is not concerned with regulating the construction per se of barriers of any kind along the servitude boundary. That such construction may occur is admitted in the clause — provided only that it consists of “the existing type of fencing (wooden pole fencing)”. The exception, it is submitted, is the essence of the provision. If so, clause P(b)(i) is actually con- cerned with preserving an aesthetic of which the existing wooden pole fencing was a component. 49 Huntrex 277 assumed, without admitting 54 , that clause P(b)(i) em- bodied a negative urban praedial servitude which regulates the use of land or the erection of structures upon it (including building ma- 53 Bradford Christies Law of Contract (7 th Ed) pp 446 – 448; Colonial Banking and Trust Co Ltd v Hill’s Trustee 1927 AD 488 at 495. 54 Record Vol 1 p 18 (Founding Affidavit para 40) 35 terials to be used) and which is calculated to preserve the charac- ter or aesthetic of an area 55 . Relying on the aforesaid assumption, Mrs Berzack has argued that because clause P(b)(i) appears with clauses P(b)(ii) and (iii) in a single clause, the latter, as a result of the unitary nature of servitudes, necessarily partake of the nature of the former, so that they must all be construed collectively as a single praedial servitude. Thus, the argument appears to go, even if clauses P(b)(ii) and (iii) in substance constitute a personal servi- tude, the clauses must all be collectively interpreted, as a whole, as being praedial, because that is the nature of clause P(b)(i). 50 However, it is entirely possible for rights, which are typically or tra- ditionally regarded as praedial, to be reserved as personal servi- tudes. These are so-called servitutes irregulares 56 . Clauses P(b)(ii) and (iii) are obviously the main operative provisions of the servi- tude. Clause P(b)(i) was calculated merely to accommodate Mrs Berzack’s personal preference about the appearance of the fence around the garden. Thus, if effect is to be given to the unitary na- ture of servitudes, the interpretation of the servitude should pro- 55 LAWSA Vol 24 (2 nd Ed) at paras 576 to 578. 56 Van der Merwe Sakereg (2 nd Ed ) at 507 (para(i)). 36 ceed on the basis that clause P(b)(i) partakes of the nature of P(b)(ii) and (iii), and not vice versa, so that the clauses must all be collectively interpreted, as a whole, as being personal. 51 If, however, it were to be found that clause P(b)(i) embodied a negative urban praedial servitude calculated to preserve the char- acter or aesthetic of the area, it is respectfully submitted that that servitude is plainly severable from the personal servitude of usus embodied in clauses P(b)(ii) and (iii) — despite the fact that they appear in the same principal clause — so that only the former was capable of registration as praedial, while the latter were not. We respectfully say that this must be so because the right to preserve the appearance of a garden fence has no or very scant impact on the diminution of the servient owner’s ius utendi and ius possiden- di, which is plainly the main, overall impact of the servitude. It is re- spectfully submitted that the reasoning in Bondev Midrand (Pty) Ltd v Puling and Another and a Similar Case 2017(6) SA 373 (SCA) at paras
[19]and
[20]is mutatis mutandis applicable. VII COUNTER-APPLICATION 52 Mrs Berzack’s counter-application was noted in the SCA, but was not decided either in the Majority Judgment or the Minority Judg- 37 ment. 53 For the reasons set out above it is respectfully submitted that Mrs Berzack’s counter-application for declaratory relief was correctly dismissed by the Court of first instance 57 . 54 Insofar as Mrs Berzack in the alternative sought rectification of the servitude, in accordance with a draft proposed in prayer 2 of her notice of counter-application 58 , it is submitted, again for the rea- sons set out above, that such rectification was not justified. Once it is plain that the prohibited outcome envisaged by Mrs Berzack and Mr Wellens in their deed of sale was not lawfully capable of being implemented, it is an exercise in futility to rectify the servitude so as to articulate the forbidden outcome more precisely. 55 Insofar as Mrs Berzack in the further alternative sought an order declaring that she had by acquisitive prescription acquired the praedial servitude contended for, it is submitted that, for the rea- sons set out in its judgment, the Court of first instance correctly re- 57 Record Vol 2 p 160 (Order para 11). 58 Record Vol 2 pp 121 – 122 (Notice of Counter-Application, para 2). 38 fused to grant the order sought 59 . VIII JURISDICTION 56 This Honourable Court’s jurisdiction is invoked under section 167(3)(b)(ii) of the Constitution because the matter concerns an arguable point of law of general public importance which ought to be considered by this Honourable Court. (a) Arguable points of law 57 As set out by this Honourable Court in Paulsen v Slip Knot Invest- ments 777 (Pty) Ltd 2015(3) SA 479 (CC), this matter is arguable as the SCA “expressed itself by a narrow majority” and the minority is “quite forceful” 60 . The issues of law to be decided on appeal are set out above. There is no factual dispute that requires this Court’s determination. 58 In addition, the matter does not entail the misapplication of settled law. The Majority Judgment in the SCA misstated the principles applicable when interpreting and enforcing servitude. This mis- statement now reflects the law. 59 Record Vol 2 pp 156 – 157 (Judgment paras 18 – 20). 60 Paulsen v Slip Knot Investments 777 (Pty) Ltd 2015(3) SA 479 (CC) at 492, para [23](a) – (b). 39 (b) Of general public importance 59 The public has an interest in the correct approach to the interpreta- tion and enforcement of servitudes. As such, this matter “trans- cend[s] the narrow interests of the litigants and implicate[s] the in- terests of a significant part of the general public”. 61 60 The matter is of importance as it concerns perpetual burdens that may be imposed upon immovable property by agreement between private parties, without regard to the dictates of public policy that land should not be excessively so burdened. (c) Interests of justice 61 As to the interests of justice, the relevant factor in this case is whether there are reasonable prospects of success on appeal. As demonstrated above, if the Minority Judgment’s approach to inter- pretation and enforcement of servitudes is upheld, there are rea- sonable prospects of the servitude in casu being regarded as a personal servitude of usus which may not be registered insofar as it extends beyond Mrs Berzack’s lifetime. 62 It is respectfully submitted, in the premises, that Huntrex 277 has 40 reasonable prospects of success in an appeal against the SCA’s judgment and orders. IX CONCLUSION 63 In the premises we respectfully request this Honourable Court to grant Huntrex 277 leave to appeal, as sought in its Notice of Appli- cation in this matter, and that a costs award, if any, shall include the costs of two counsel. 64 It is possible that this Honourable Court, having granted leave to appeal, may decide forthwith to determine the appeal itself. In that event we respectfully request that this written argument shall be used also in relation to the merits of the appeal, and that, if it suc- ceeds, the order proposed in the Minority Judgment 62 shall be substituted for the order of the SCA. S P ROSENBERG SC T R TYLER Chambers, Cape Town 27 November 2023 61 Paulsen v Slip Knot Investments 777 (Pty) Ltd 2015(3) SA 479 (CC) at 494 para [26]. 62 Record Vol 3 pp 268 – 269 para
[72]Minority Judgment
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