THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No: 400/07

JOHAN BLOEM KRUGER

Appellant

and

JOLES EIENDOM (PTY) LTD

1st Respondent
REGISTRAR OF DEEDS (CAPE TOWN)

2nd Respondent

Neutral citation:  Kruger v Joles Eiendom (Pty) Ltd (400/07) [2008] ZASCA

138 (27 November 2008).

Coram:
MPATI P, MTHIYANE, CLOETE, HEHER JJA et KGOMO AJ
Heard:
10 NOVEMBER 2008
Delivered:
27 NOVEMBER 2008

Summary:
Servitude-interpretation where ambiguous.
______________________________________________________________

ORDER
______________________________________________________________

On appeal from: High Court, Cape Town (Traverso DJP, Griesel J and
Ndita J sitting as Full Court)

The following order is made:
1(a)
The appeal succeeds, with costs.
(b)
The order of the full court is set aside and the following order
substituted: 'The appeal is dismissed, with costs.'
2.
The cross-appeal is dismissed, with costs.

______________________________________________________________

JUDGMENT
______________________________________________________________

CLOETE JA (MPATI P, MTHIYANE, HEHER JJA and KGOMO AJA
concurring):

[1] There is an appeal and a cross-appeal before the court. It would be
convenient to refer to the parties as they were at first instance. The plaintiff
and the defendant own adjoining properties in Dorp Street, Stellenbosch. The
plaintiff made three claims, two of which remain relevant. First, the plaintiff
claimed that a servitude registered over part of his property in favour of the
defendant's property had become extinguished by prescription. Second, the
plaintiff claimed that he had acquired part of the defendant's property by
prescription. The trial court (Woodland AJ) upheld both claims and the
defendant appealed. The full court in Cape Town (Griesel J, Traverso DJP
and Ndita J concurring) upheld the appeal in respect of the first claim
(extinction of the servitude) but dismissed the appeal in respect of the second
claim (acquisition of part of the defendant's property). The parties have
respectively appealed and cross-appealed against these findings with the
special leave of this court.

[2] The judgment of the full court has been reported as Joles Eiendom
(Pty) Ltd v Kruger and Another.1 At the end of the judgment2 there is a
diagram to which it is convenient to refer. The plaintiff's property is Erf 3765,
on the left of the diagram. The first defendant's property is Erf 548, to the east.
Dorp Street lies to the south of both erven where points E and N appear.
Between the two erven there is a passage ,95 metres wide and 10,39 metres
long the middle of which extends along the common boundary from point E to
point F. (Points G and M are directly opposite point F and point N is directly
opposite point E.) There is a servitude registered in favour of the plaintiff's
property over that area of the defendant's property between points EFMNE,

1 2007 (5) SA 222 (C).
2 Page 235.

and a servitude registered in favour of the defendant's property over the
corresponding area of the plaintiff's property to the west of the common
boundary. It is this latter servitude that the plaintiff in the present appeal
contends became extinguished by prescription. The area of the defendant's
property relevant to the defendant's cross-appeal, demarcated by points
GHJMFG, is contiguous with, and situated to the north of, the passage
burdened with the servitudes. (The line GH represents part of the eastern
boundary of the plaintiff's property.) It would be convenient to refer to this area
as 'the extended passage'. In 1966 the owner of the defendant's property, a
Mr Scheiffer, constructed a wall 2,7 metres high which extended from a point
about one metre to the south of point M, to point J (and thereafter to point K,
to point L and further north). Subsequently, between 1966 and 1968, the
plaintiff put in a door where the passage opens on to Dorp Street.

[3] Of cardinal importance to the appeal is the proper construction of the
servitude in favour of the defendant's property. It is contained in a special
condition in the defendant's title deed which reads: 'The passage . . . shall be
for the common use of' the two properties in question. The relevant part of the
special condition in the plaintiff's title deed is in identical terms. The servitudes
originally provided access to the backyards of the two properties. The trial
court interpreted each servitude to be one of footpath.3 The full court
disagreed, holding that because the expression 'common use' was not further
described or defined in any way:
'[T]his means that the passage may be used by both owners for any lawful purpose ─
having regard to the nature and situation thereof, namely a narrow passageway
between two adjoining commercial buildings in an urban setting ─ and provided, of
course, that the servitude is exercised civiliter modo. In addition to the right of
footpath (iter), other permissible uses of the passage would include urban servitudes,
such as ius stillicidii avertendi (the right to pass off one's rainwater onto the ground of
another); ius stillicidii recipiendi (the right to receive the rainwater coming from
another's land); ius cloacae (the right to have a drain lying on or coming out on the
ground of another); and so on.'4

3 See para 12 of the judgment of the full court, n 1 above.
4 Para 15.

In the appeal before this court, the plaintiff championed the interpretation
given by the trial court, and the defendant, that given by the full court.

[4] Both parties sought to rely in argument before this court on the use to
which the passage had in fact been put as it emerged from the evidence of
the witnesses who testified at the trial. Where a servitude has been granted
by agreement,5 and where the agreement is ambiguous and evidence as to
surrounding circumstances which obtained at the date the contract was
concluded does not resolve the ambiguity,6 evidence as to the interpretation
the parties had by their conduct put upon the grant will be admissible as an
indication of their common understanding of its meaning.7 But here there was
no evidence as to how the servitude in the present matter came to be
constituted ─ it may not have had its origin in contract, but have been
imposed by the local authority; and furthermore, none of the witnesses who
testified as to how the servitude had in fact been used, could possibly have
been the parties to any agreement constituting it, nor could their evidence
have related to the conduct of such parties.

[5] To my mind, the servitude means that the 'passage' is 'for the common
use of' the two properties in question as a passage, ie as a passageway, to
pass from Dorp Street to the properties. I am fortified in this view by the fact
that the passage is so narrow that any other use does not readily suggest
itself. It is not necessary, however, to elaborate further as the servitude is, at
best for the defendant, ambiguous, as its counsel readily conceded. Evidence
as to the conditions prevailing at the time the servitude was constituted would
have been admissible to resolve the ambiguity. The decision of this court in
Cliffside Flats (Pty) Ltd v Bantry Rocks (Pty) Ltd8 provides a good illustration
of how this may be done. In 1941 the appellant in that matter received transfer
of land (Lots 6 and 7) each subject to a condition that 'no more than two

5 As eg in Van Rensburg v Taute 1975 (1) SA 279 (A).
6 Haviland Estates (Pty) Ltd v McMaster 1969 (2) SA 312 (A) at 322B-C.
7 See eg Breed v Van den Berg 1932 AD 283 at 291-3; Shacklock v Shacklock 1949 (1) SA
91 (A) at 101 in fine; MTK Saagmeule (Pty) Ltd v Killyman Estates (Pty) Ltd 1980 (3) SA 1 (A)
at 12F-13C.
8 1944 AD 106.

dwelling-houses shall be erected on the above-described property'. It was
common cause that the condition was a servitude in favour of Lot 3 (owned by
the respondent). Feetham JA found the condition ambiguous in that it could
mean that only two dwelling-houses could be erected and nothing more, or it
could mean that as many structures could be erected as the property would
permit save that of those structures, only two could be dwelling-houses. The
learned judge said:9
'It thus appears that the condition which we have to consider originated in a deed of
transfer dated August, 1919, that it was imposed in favour of a residential property
occupied by the transferor, and that the two properties concerned were situate within
a short distance of, and within view of, each other, in a residential area lying above
the sea coast in a neighbourhood which at the date of the transfer was still only very
partially developed.

These facts appear to me to be quite sufficient to justify the inference that the
object of this condition was to protect and preserve the amenities of Lot 3 as a
residential property by barring any developments on Lots 6 and 7 which would be
inconsistent with the existing residential character of the adjacent area, and might
have the effect of diminishing such amenities; and they thus afford strong
confirmation of the view that the condition is to be read as having the meaning which
examination of its actual terms led me to regard as the preferable choice between the
two alternative meanings of which I find it to be capable ─ that is, that the condition is
to be read as meaning ─ "Nothing more than two dwelling-houses shall be erected
on the property".
. . .
I do not think it is open to any doubt that the facts which I have taken into account, as
established by admissions and evidence, are facts which can properly be taken into
account for the purpose of throwing light on the object and interpretation of the
condition. I have held that the condition is susceptible of two meanings, and these
facts which relate to the subject matter of the condition, namely the two properties
affected by it (which may be called respectively the dominant and the servient
tenement), are relevant for the purpose of determining which of the two meanings
should be given to it.'

9 At 115-116 and 117.

[6] As support for the approach followed by him, Feetham JA referred inter
alia to the judgment of Gregorowski CJ (Esser and Kock JJ concurring) in
Kempenaars v Jonker, Van der Berg and Havenga10 where the learned Chief
Justice, in dealing with the servitude of grazing, said the following:
'It is clear that incidents [sic: sc the incidence] and the extent of the servitude must
depend on the circumstances under which it was created . . .  I think . . . that much
must depend on the circumstances under which the servitude was created, and on
the causa et origo servitutis.'
Feetham JA also referred to the decision in Priestman v Simonstown
Licensing Board & Others11 where Watermeyer J (Sutton J concurring)
considered the state of the liquor laws in the Cape Colony, starting with a
Plakaat of 1804, in order to interpret a prohibition on the sale of liquor inserted
in 1818 in title deeds of hotels at Fish Hoek.

[7] In the present appeal the fact that the passage extended up towards
two outside lavatories, one on each property with a common wall separating
them, suggests that the servitudes may have been imposed by the local
authority to give access to the backyards of the properties from Dorp Street
for the primary purpose of removing what was politely called 'night soil'. But
there was no evidence in this regard or any other evidence as to the
conditions prevailing at the time the servitudes were created. The fact
mentioned by the full court, in the passage from the judgment quoted above,
that there are now commercial buildings on the properties, is irrelevant.

[8] In the circumstances I believe that such ambiguity as there is should be
resolved by applying the well established rule of construction that because a
servitude is a limitation on ownership, it must be accorded an interpretation
which least encumbers the servient tenement. Voet,12 in discussing the urban
servitude of tigni immittendi (ie the right to let a beam into a neighbour's party
wall), contrasts the position under a limited agreement as opposed to a
general agreement and says that where the number of beams and mode of

10 1898 5 OR 223 at 227-8.
11 1929 CPD 263.
12 Commentarius ad Pandectas 8.2.2.

letting in has been defined, the owner of the dominant tenement is not allowed
either to let in more or to alter the shape of the letting in. The reason he gives
is:
'That 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);
and in case of doubt there must be a declaration in favour of freedom.'13
As authority for this proposition Voet refers to, amongst others, Carpzovius14
and the author of the opinion in the Hollandsche Consultatien15 where the
passage from Carpzovius which follows is quoted:
'. . . servitus ceu res odiosa restringi, ac in dubio pro libertate pronunciari debet. Et
semper servitus indefinita ita est interpretanda, quo fundus serviens minori afficiatur
detrimento.'
The passage may be translated as follows:
'. . . a servitude being something odious should be interpreted restrictively and so, in
case of doubt, should be declared free of restraint. And an imprecise servitude must
always be interpreted so that the servient tenement is the less adversely burdened.'

[9] The restrictive approach to interpreting servitudes has been endorsed
by this court in Pieterse v Du Plessis16 although in Van Rensburg v Taute17
the caveat was added that:
'By die toepassing van hierdie beginsel moet egter steeds in gedagte gehou word dat
die aard en omvang van die beswaring bepaal word na aanleiding van die betekenis
wat gegee moet word aan die ooreenkoms wat die serwituut daarstel. Indien die
betekenis daarvan ondubbelsinnig blyk te wees, is 'n hof nie geregtig om daarvan af
te wyk ten einde 'n mindere beswaring te bewerkstellig nie.'18

13 Gane's translation vol 2 p 440.To the same effect, as regards the general principle, is
Schorer in his supplementary notes to Grotius 2.32, Austen's translation p 303.
14 Jurisprudentia Forensis Romano-Saxonica 2.41.4.
15 Opinion 146.
16 1972 (2) SA 597 (A) at 599G-in fine; see also Willoughby's Consolidated Co Ltd v Copthall
Stores Ltd 1918 AD 1 at 16 and Union Government (Minister of Railways and Harbours) v
Marais 1920 AD 240 at 271 per Maasdorp JA; and see the decisions of Corbett J in Stuttaford
v Kruger 1965 (4) SA 505 (C) (appendix) and Jonordon Investment (Pty) Ltd v De Aar
Drankwinkel (Edms) Bpk 1969 (2) SA 117 (C) at 125H-126B.
17 Above n 5, at 301G-in fine.
18 In applying this principle it must, however, be borne in mind that the nature and extent of
the encumbrance is determined with reference to the meaning that must be given to the
agreement that constitutes the servitude. If the meaning is unambiguous, a court is not
entitled to depart therefrom in order to achieve a lesser encumbrance. (My translation.)

[10] In my respectful view, the meaning given by the full court to the
servitude burdening the plaintiff's property loses sight of this principle of
interpretation, and the conclusion reached by that court accordingly cannot be
supported. Indeed, counsel was unable to refer to any authority where a
servitude was construed as being in such wide and imprecise terms and I
have found none either. I therefore conclude that the servitude in question
must be limited to the use of the passage as a passageway to gain access to
the defendant's property.

[11] The conclusion reached in the previous paragraph renders it
unnecessary, with one exception, to consider the evidence of the witnesses
called on behalf of the defendant as to the alleged exercise of the servitude.
The exception relates to the evidence of Mr Gideon Jacobs who was
employed by a tenant of the defendant's predecessor in title. Counsel
representing the defendant submitted that a proper reading of Jacobs'
evidence showed that on occasion he used the passage as a passageway to
obtain access to the extended passage to clear a drain on Erf 548 and also to
clean away debris which had fallen into the extended passage when he
cleaned gutters of a building on Erf 548 which adjoined the extended
passage. Therefore, so went the argument, the passage was used as a
passageway to gain access to the extended passage, which was part of Erf
548 (now the defendant's property), and extinctive prescription was
accordingly interrupted on each occasion this took place. I find the argument
contrived but it is possible to dispose of it relatively briefly on the facts. Jacobs
never said expressly that he went into the extended passage, but we were
asked to infer that he did. I am not prepared, however, to accept that he was
there at all because his evidence was confusing and contradictory, and
deviated in significant respects from what was put to the plaintiff's witnesses
on this very point. In addition he confessed to two confrontations with the
plaintiff in the past which cast doubt on his reliability.

[12] The trial court found it to be clear on the evidence that the defendant
and its predecessors in title had not exercised the right of way through the
passage since at least 1966, when the wall was built by Scheiffer; that after

the wall was built, it was no longer possible to obtain access to Erf 548 by
means of the passage; and that the position did not change until 2001, when
the defendant built a door which opened on to the passage. I agree with these
conclusions. It follows that the requirements of s 7(1) of the Prescription Act,19
which provide that:
'A servitude shall be extinguished by prescription if it has not been exercised for an
uninterrupted period of thirty years',
have been satisfied. The argument set out in paragraphs 35 and 36 of the
judgment of the full court was ─ in my view, correctly ─ abandoned on appeal
and it is therefore not necessary to consider it. In my view the appeal should
be upheld.

[13] I turn to consider the cross-appeal. The plaintiff occupied Erf 3765 as
owner after he acquired it in 1967 (although he only obtained transfer in 1976,
the delay being due to litigation with his father from whom he acquired it).
After the wall was built by Scheiffer in 1966 the extended passage effectively
became part of the plaintiff's backyard. A year or two thereafter, as I have
said, the plaintiff erected the door, at the Dorp Street entrance to the passage,
to which he and his tenants had a key. The door was kept locked most of the
time thereafter. He accordingly controlled access to the passage and the
extended passage. In addition in 1968 the plaintiff effected improvements to
his property: he built a wall which encroached slightly on the extended
passage between points G and H; he constructed a drain which ran from and
under the extended passage to Dorp Street; and he paved the passage and
the extended passage. On these facts there is no doubt in my mind that the
trial court and the full court were correct in finding that the plaintiff had both
the intention to possess the extended passage as owner, and that he
exercised physical control over it. The requirements of that part of s 1 of the
Prescription Act, which provide that
'a person shall by prescription become the owner of a thing which he has possessed
openly and as if he were the owner thereof for an uninterrupted period of thirty years',
were accordingly satisfied. It follows that the cross-appeal falls to be
dismissed.

19 68 of 1969.

[14] The following order is made:
1(a)
The appeal succeeds, with costs.
(b)
The order of the full court is set aside and the following order
substituted: 'The appeal is dismissed, with costs.'
2.
The cross-appeal is dismissed, with costs.

_______________
T D CLOETE
JUDGE OF APPEAL

Appearances:
Counsel for Appellant:
J H Roux SC
Instructed by
Morkel & De Villiers, Somerset West
Matsepes, Bloemfontein

Counsel for Respondent: Ms M Ipser
Instructed by
Schliemann Incorporated, Somerset West
Naudes, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From: The Registrar, Supreme Court of Appeal
Date: 27 November 2008

Status: Immediate
Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

J B KRUGER v JOLES EIENDOM (PTY) LTD

1.
The appellant and the respondent owned adjourning properties in Dorp Street,
Stellenbosch. Between the properties there is a passage over which each property has a
servitude. The SCA held that the servitude had to be narrowly interpreted as conferring only
a right of way from Dorp Street to the backyards of the properties. As the passage had not
been used by the respondent for that purpose for more than thirty years, it was held that the
servitude in his favour had become extinguished by prescription.

2.
The SCA also held that the appellant had become the owner of  a piece of land
belonging to the defendant at the end of the passage by acquisitive prescription as he had
occupied it and treated it as his own for more than thirty years.

--ends--