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In Berzack v Huntrex 277 (Pty) Ltd and Others [2022] ZASCA, the Supreme Court of Appeal (SCA) dealt with an appeal from the Western Cape High Court against the decision of the high court delivered on 10 December 2020 in terms of which a praedial servitude registered against the immovable property of the first respondent, Huntrex 277 (Pty) Ltd (Huntrex), in favour of the immovable property of the applicant, Ms Margot Berzack (Berzack), was declared to be a personal servitude of usus.

Question of law

The court had to determine whether the servitude area reserved by Berzack in her in her title deed, in her favour and in favour of her successors in title, subject to certain terms and conditions (which reservation essentially involved the extension by Berzack of her garden area into property now owned by Huntrex), was a praedial servitude or a personal servitude of usus. If the court decided that the servitude reserved was personal in nature, then its registration beyond the lifetime of the Berzack is  involving reservation of rights of access to use and enjoyment of a garden by Berzack and for her future successors in title, registered against the property of Huntrex, was a praedial servitude or a personal servitude of usus and, therefore, prohibited in terms of section 66 of the Deeds Registries Act 47 of 1937 (Deeds Registries Act).

 Praedial servitude v personal servitude

 The definitions of a praedial servitude and a personal servitude were best set out encompassed by the constitutional court in City of Tshwane v Link Africa (Pty) Ltd and Others where it provided that a praedial servitude involves two pieces of land. A praedial servitude provides a benefit to one piece of land, the dominant tenement (property), while imposing a burden over other land, the servient tenement (property). A praedial servitude attaches to the land and is perpetual (unless it is a temporary servitude or cancelled) in that it passes from one landowner to the next.  The court stated: “By contrast, a personal servitude is a real right that attaches to the burdened land, but it is also always connected to an individual. …… That right is non-transferable: it cannot be passed on to another.”

Brief background facts

Berzack, after taking ownership of a residential property in Constantia, Erf 380, in December 1970, created a garden westward of the house and to a point beyond which the property was unused and cordoned it off with a wooden fence. Berzack thereafter decided to subdivide her property, but the garden area fell within the other subdivided portion of the property. After the subdivision, the two erven were Erf 8478 and Erf 380. In 1983, the minimum Erf size of property in Constantia was 4000 square metres, and Berzack’s property was 4013 square metres. Had Berzack, at the time of subdivision, applied for the line of subdivision between Erf 8478 and the Remainder Erf 380 to be 20 metres to the west of its current eastern boundary, the subdivision would not have been approved in terms of Townships Ordinance No. 33/1934. The only legal way in which Berzack could retain use of the garden was to create a servitude area 20 metres wide over Erf 8478 in favour of Remainder Erf 380. In September 1983, Berzack sold the subdivided portion to Mr Wellens, subject to a praedial servitude that was duly endorsed and registered against the title deed. The subdivided portion was subsequently sold two more times before the property was transferred to the respondent, Huntrex. At no time prior to the transfer of the property to the respondent had there been any previous objections to the registration of the praedial servitude by the previous owners of the property.

High Court proceedings

The issue before the high court was whether the servitude contained in clause P of the title deed is praedial or personal in nature and, if it is a personal servitude, whether the wording of clause P is capable of being corrected so that it may be converted into a praedial servitude. The high court considered the elements of a praedial servitude, and having found that the element of utilitas was lacking, the high court came to the conclusion that clause P created a personal servitude of usus that could neither be rectified nor cured by acquisitive prescription due to the prohibition contained in section 66 of the Deeds Registries Act which prohibits personal servitudes from being registered beyond the life of the person/party in whose favour it was created. In reaching this erroneous conclusion, the high court ignored the servitude area created under condition P (a) and only dealt with the ancillary conditions under condition P (b), which the high court determined was a personal servitude in favour of Berzack.

Supreme Court of Appeal proceedings

Berzack appealed the high court judgment on two main grounds, namely that the high court was incorrect in interpreting clause P on a narrow ground that, in the absence of proof that the servitude in the title deed described the element of utilitas, the servitude was therefore personal and not praedial in nature. Berzack contended that the interpretation by the high court was inconsistent with the plain language of the servitude, the intention of all relevant parties when the servitude was first registered, and subsequent registrations against the title deeds prior to the transfer of the property to the respondent. Berzack further contended that the high court’s failure to take into account the fact that the existing servitude was in favour of the Berzack property and therefore increased the economic potential of the Berzack property.

Huntrex contended that there is an absence of utilitas in clause P of the servitude and that the garden servitude in question is not one of the recognised traditional servitudes, such as a right or way or access to drinking water on land that belongs to another. In reliance on this, they argued that the existing servitude was therefore a personal one of usus, which could not be registered against the title deed as in section 66 of the Deeds Registries Act.

Interpretation of servitudes

The SCA, in a majority judgment penned by Nhlangulela AJA, found that the high court was incorrect in failing to interpret clause P in light of the grammatical meaning of the words in the context, the purpose, and the background circumstances under which the servitude was created by Berzack and Wellens in 1983. The narrow interpretation by the high court of the meaning of utilitas misconstrued its meaning and removed “the aspects of what a praedial servitude was, which resulted in a constrained meaning given to each of those subclauses and mischaracterising the praedial servitude as a personal servitude of usus.”

The SCA further held that, reading clause P as a whole, the element of utilitas is present. What seems to have been the key distinction between the approach adopted by the SCA and that adopted by the high court is their method of interpretation. The isolationist approach employed by the high court in its interpretation of clause P failed to take into account the circumstances under which this servitude was created and its intention, which was to allow Berzack to continue to have use and enjoyment of the garden area and to allow any subsequent successors in title of the property to do the same. The failure by the high court to also take into consideration the added economic value the servitude over the Huntrex property provided the Berzack property was a further point of critique by the SCA.

In support of its conclusion that the high court erred in finding that clause P did not meet the definition of utilitas, the SCA referenced its own decision in Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd where the court stated that “in the absence of an ambiguity in the words used in a servitude-creating contract, the golden rule applies in favour of a praedial servitude having been proved by the person who claims the existence thereof.”

An additional argument advanced by Huntrex was that the garden servitude claimed by Berzack did not meet the traditional servitudes. However, the court found that this argument held no legal basis as, according to the SCA, the correct position in our law is that there is no exhaustive list of real servitudes. To illustrate this, the court quoted the judgment of the constitutional court in City of Tshwane v Link Africa (Pty) Ltd and Others, where the court there provided that in modern South African law, types of rights and restrictions found in traditional servitudes have been relaxed.

The SCA therefore held that the features of the garden servitude area in this case met the characteristics of a praedial servitude, not a personal servitude, and that the order granted by the high court allowing Huntrex to demolish the wooden pole fence erected by Berzack around the garden area and to erect their own fence, which would restrict Berzack’s access to the garden, should not have been granted. The order of the high court was therefore set aside.

In disagreement with the minority judgment penned by Plasket JA and Goosen AJA, the majority judgment provided that the view of the grounds provided by the garden servitude adds utilitas and enhances the value of residential property, thereby creating an advantage for the dominant tenement, the Berzack property.

Minority judgment

In the minority judgment, the main point of interpretation of clause P for the two justices, Plasket JA and Goosen AJA, was that the servitude in clause P be interpreted in a way that least encumbers the servient tenement, the Huntrex property, and that this rule of interpretation also applies to the determination of whether a servitude was personal or praedial in nature. They further provided that the nature and character of the right created must be analysed and that the intention of the parties, as expressed in their agreement when the property was first sold in 1983, has its limits. The justices, after erroneously reading condition P (a) and P (b) separately as the high court had done, found that the intention by Berzack was to create a personal servitude of usus in favour of herself in order to allow her to continue gardening in the servitude area as opposed to creating a praedial servitude that would allow subsequent owners to use the garden too.

The minority judgment provides that there are five general requirements for the creation of a praedial servitude but only deals with two. Firstly, the servient tenement must be capable of serving the dominant tenement on a permanent basis, and therefore, the use made of the servient tenement must be based on some permanent feature or attribute of the servient land. Secondly, the servient tenement must provide some utility or benefit to the dominant landowner and must not only serve that owner’s personal pleasure. The minority judgment, in agreement with the majority judgment, recognised that the servitude rights created by clause P served Berzack’s personal pleasure as it allowed her to continue gardening. However, the minority was of the view that the servitude in question was created to enable Berzack to enhance her personal pleasure derived from gardening rather than to “exercise dominium over her property and enjoy all the elements of that dominium.” Plasket JA and Goosen AJA therefore concluded that the servitude contained in clause P was a personal one and not a praedial servitude and was therefore prohibited from registration beyond the life of the person in whose favour it is created, in terms of section 66 of the Deeds Registries Act.

What now?

Despite the view and judgment presented by the minority, ultimately, the majority view of the court was that the servitude in question was praedial and not personal and that the element of utilitas required was indeed present. Taking into consideration the wording of clause P, the intention behind the creation of the servitude, and the prior transfers of the Huntrex property, one can argue that because all the previous owners were aware of the property being subject to the praedial servitude and yet raised no objections as to whether it was praedial or personal in nature, they all understood that the servitude was indeed praedial. However, this could all change as the case has gone on appeal to the constitutional court, and we hope that the constitutional court upholds the majority judgment of the SCA because if it doesn’t do so, this will create much uncertainty for a countless number of registered praedial servitudes, particularly garden servitude areas of which there are many. As we await that judgment, and as things currently stand, any subsequent owners of Berzack’s property will receive the benefit of the praedial servitude over the Huntrex property.

The lesson one learns from this case is that when a praedial servitude is created, one cannot emphasise enough all the elements of a praedial servitude when creating it, and in this regard, one should:

  • Name it as a perpetual praedial servitude;
  • Provide that the servitude is registered over the servient land in favour of the dominant land and may be exercised by the owner of the dominant land and his/her/its successors in title, in perpetuity;
  • The drafting of ancillary rights, obligations, and conditions should be very clear and should not create uncertainty as to the classification of the servitude.